CBA Record January-February 2024

How to Prepare for an Administrative Hearing By Alan Rhine While this article discusses a poten tial structural change to separate the power to prosecute and the power to adjudicate a case in an administrative hearing, attorneys should keep some important points in mind in the mean time when representing a client in an administrative hearing. 1. Agency rules. Become familiar with agency rules, especially those relating to evidence, because they may differ from the rules of evidence applied in a trial court. 2. Ex parte communications . If the same agency both prosecutes the case and decides the case, be watchful of ex parte communications that may occur if the prosecutors and the administra tive law judge work in the same suite. 3. Options for exceptions or rehear ings. Determine the process by which a final administrative decision is issued. There may be a mandatory appeal process within the agency, an oppor tunity to file a motion for a rehearing, or a right to file exceptions to a recom mended decision. 4. Client communication . It may be necessary to explain to your client that the decision-making process takes a long time because it involves multiple steps (e.g., a report from an administra tive law judge is sent to a board, which then sends a recommended decision to the director of the agency for a final administrative decision). 5. Chicago Bears vs. Green Bay Pack ers? If the agency is both prosecutor and adjudicator, you might want to tell your client that the process is like a football game between the Green Bay Packers and the Chicago Bears, where the game officials were full-time employees of the Green Bay Packers.

received fees and costs of $12. There, the Court held that although it was “doubt less” that some mayors “would not allow such a small consideration . . . to affect their judgment in [the matter], the requirement of due process of law in judi cial procedure is not satisfied by the argu ment that [people] of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice.” Tumey at 531-32. Another problem for an ALJ who is employed by the same agency that both investigates and prosecutes the case is the determination of credibility of co employees. To find that an investigator employed by the same agency is not a credible witness places the administrative agency in a difficult position because if its investigator is not credible, this jeopar dizes the investigator’s value to the agency in future matters. Does the control over the salary of an administrative law judge by the agency that prosecutes the case create a percep tion of impairment of the adjudicator’s ability to carry out judicial responsibili ties with integrity, impartiality, and com petence? Is the issue whether payment Potential Solution: Independent Tribunals

of a salary creates a greater perception of impairment of impartiality than a one time substantial campaign contribution? The Court’s holding in Caperton strongly suggests that the answer to both ques tions is, “Yes.” Indeed, where an agency employs an administrative law judge, an ongoing relationship exists with the agency controlling their salary, which may be their sole means of support. According to case law, this situation may create the existence of an actual bias or the percep tion of potential or implicit bias. This issue has been resolved in certain tax cases in Illinois by creating an inde pendent administrative tribunal, the ITT, to increase public confidence in the fair ness of the state tax system. A tribunal not paid by a party that has “an interest in winning the case” provides both the appearance and the reality of due process and fundamental fairness being served. This model is suggested as a guide for other administrative hearings.

Alan Rhine is a solo prac titioner and focuses his practice on representing clients in administrative hearing and in adminis trative review proceedings in court.

THE CHICAGO BAR ASSOCIATION SYMPHONY ORCHESTRA AND CHORUS PRESENT: WINTER CONCERT: CONDUCTOR QUEST

ST JAMES EPISCOPAL CATHEDRAL FEBRUARY 3, 2024 | 7:30 PM 65 E. HURON, CHICAGO

ORDER TICKETS EARLY AND SAVE! Tickets $15 ($10 Students) www.chicagobar.org

18 JanuaryFebruary 2024