CBA Record January-February 2024

whether medical providers have violated Medicaid’s rules for payment. See 305 ILCS 5/12-4.9. The combination of powers also occurs in professional licensing cases for physi cians, real estate brokers, and other pro fessionals in hearings before the Illinois Department of Financial and Professional Regulation. In this agency, the adminis trative law judge makes findings, which are then submitted to a panel consist ing of members of the profession and/or public members. This panel recommends a decision to the director, who makes the final administrative decision. See 68 Ill. Admin. Code, § 1110.170; see also 225 ILCS 60/7.1 (A); 225 ILCS 60/35; 225 ILCS 60/37; and 225 ILCS 60/44. A model used by some other states, such as Florida, is based on a separate Department of Administrative Law Judges. See Fla. Stat. § 120.65. In others, the attorney general’s office prosecutes cases before an administrative agency so prosecutorial functions remain separate from judicial functions. A Problematic Combination In Withrow v. Larkin, 421 U.S. 35, 39-42 (1975), which challenged an adminis trative hearing in Wisconsin, the lower court found that the state medical exam ining board did not qualify as an inde pendent decisionmaker and could not properly rule on the merits of the charges it investigated. A preliminary injunction was issued to prevent the administrative hearing. On appeal, the United States Supreme Court overruled the District Court. While finding that “a “fair trial in a fair tribunal is a basic requirement of due process,” the Supreme Court held that the contention that the combination of investigative and adjudicative func tions creates an unconstitutional risk of bias in administrative adjudication must overcome a presumption of honesty and integrity in those serving as adjudicators. The standard set in Withrow was to determine bias by considering whether, under a realistic appraisal of psycho logical tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses a

risk of actual bias or prejudgment. With row at 46-47. However, considering the Court’s ruling in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court should revisit or reconsider its holding in Withrow . In Caperton, a party claimed that a West Virginia Supreme Court of Appeals justice who ruled on the case in the lower courts was potentially biased.

Caperton also considered the ABA Model Code of Judicial Conduct. Canon 2A of the Code provides that the issue is “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial respon sibilities with integrity, impartiality and competence is impaired.” Caperton at 888. This is different from the standard applied in the Withrow case.

Implicit Bias Concerns about what is now referred to as implicit bias date back to the founding years of the United States. For example, the Federalist Papers stated, “A body of men are unfit to be both judges and par ties at the same time.” Federalist Paper 10. And United States v. Burr recognized that a relationship between a party to liti gation and the finder of facts creates a sus picion of bias. 25 F. Cas. 49, 50 (1807) Moving forward to the twentieth cen tury, possible temptations for judges were discussed in Tumey v. Ohio, which held that due process of law is denied with a procedure that offers a possible tempta tion to the average person as a judge to forget the burden of proof required to convict the defendant, or which might lead them not to hold the balance “clear and true between the State and the accused …” 273 U.S. 510, 532 (1927). Tumey involved a violation hearing conducted by a village mayor. The mayor CBA RECORD 17

Specifically, the chairman of a corpora tion that was a party to a lawsuit before that court made a substantial campaign contribution to a justice’s election cam paign. However, although the West Virginia justice conducted an extensive search for actual bias, no actual bias was found. Caperton at 874. Citing In re Murchison, 349 U.S. 133, 136 (1955), the Caperton Court held that objective standards may require recu sal whether actual bias exists or can be proved. This is because due process may sometimes bar judges who have no actual bias and who would do their best to weigh the scales of justice equally. Where a sig nificant contribution is made to a judge’s election campaign, the failure to consider objective standards requiring recusal is not consistent with the imperatives of due process, because there was a possible temptation to the average judge to not to hold the balance “clear and true.” Caper ton at 886.