by Hon. Ann Marshall Young, Administrative Law Judge, Tennessee Administrative Procedures Division; President, National Association of Administrative Law Judges

(The following article first appeared in the NJC Alumni, Vol. XIV, No. 1, the magazine of the National Judicial College in Reno, Nevada, the nation's leader in judicial education. The article is reprinted with the permission of the NJC and Judge Young. Ed. )

Although judicial independence is of great concern in today's legal community, the administrative judiciary is often left unmentioned in discussions of the subject. This is likely due to several factors, including general unfamiliarity with administrative law and adjudication, often controversial and strongly competing policy and financial interests, an d frequent use of the term "judicial independence" without any explicit definition of what it means. Much of the public no doubt believes that what is at stake is the individual power of judges. However, as has been noted, "independence is not for the personal benefit of the judges but rather for the protection of the people, whose rights only an independent judge can preserve. (1)

Traditionally, the concept is seen as including both decisional independence, which refers to the independence of individual judges "to perform the judicial function subject to no authority but the law, [with the protection of] job tenure, adequate compensation and security"; and institutional independence, which refers to the independence of the judicial branch as a separate branch of government.(2)

Administrative law judges and other administrative adjudicators, who are not in the judicial branch but generally conduct adjudicatory hearings for state and federal executive agencies, obviously do not have institutional independence as defined above. However, if the public who come before administrative adjudicators are to receive truly neutral, impartial, and fair decisions in their cases, many believe it is necessary that administrative adjudicators have decisional independence. Moreover, there are other means of providing a measure of institutional independence with regard to administrative adjudication: about half the states have established "central panels" of administrative adjudicators who are separated from the agencies for whom they conduct hearings,(3) and in the past there have been efforts to establish a similar "corps" of federal administrative law judges.

In the context of administrative adjudication, it is probably most helpful to concentrate on decisional independence, and to consider this from two perspectives: a functional one and a practical one. The term functional decisional independence may be used to refer to how an administrative adjudicator goes about performing the adjudicatory function (judging) in an ethical manner that is neutral, impartial, and independent of inappropriate influences.

The term practical adjudicatory independence may be used to refer to the institutional structures and management practices relating to job status and security that insulate judges from inappropriate influences and thereby make them more likely to function independently and impartially.

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"ex parte communications and agency influences that would be considered inappropriate in a court are accepted without question by some in an administrative law context"

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Many of the issues relating to functional decisional independence are the same as those that face judicial branch judges, such as dealing with unfair criticism. However, other issues are uniquely problematic. For example, from time to time one encounters the viewpoint that administrative adjudicators exist only as extensions of agencies and therefore should be biased in favor of agency points of view, whether formally promulgated or not, and whether or not "outside" parties have knowledge of such positions. From this perspective, ex parte communications and agency influences that would be considered inappropriate in a court are accepted without question by some in an administrative law context either as a desirable means of administering government programs flexibly, or as a "fact of life" private parties may resent but believe they cannot change (if they are indeed even aware of such communications and influences).

On the other hand, the origin of the administrative adjudicator role was part of a movement, culminating in the adoption of the original Federal and Model State Administrative Procedure Acts, to restrict the then largely unfettered discretion of government agencies and to provide procedural protections to persons affected by government action.(4) Although there was some balancing of interests, a central concern from the start was the public interest in fair decision-making on matters affecting the public in its interactions with the government. Due process was to be protected through separating the adjudicative function from other agency functions and limiting decisions to evidence made part of a record. There were provisions for notice to parties of matters at issue, and various provisions to assure that administrative adjudicators would be neutral and impartial decision-makers.

The administrative procedure acts, ethical codes, and other laws that govern administrative adjudication today vary greatly among jurisdictions. Although the trend is to hold administrative adjudicators to the same standards as judicial branch judges with regard to bias, disqualification and ex parte communications, for example,(5) some statutory and regulatory frameworks are more lax in this area.
Due Process was to be protected through separating the adjudication function from other agency functions and limiting decisions to evidence made part of a record.

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Similarly, with regard to practical adjudicatory independence, there is a great variation in the institutional structures for administrative adjudication, and in how effective these are at insulating judges from inappropriate influences and pressures. Relevant questions include whether the job is viewed more as a bureaucratic of judicial position; how judges are selected, disciplined and removed, and according to what standards and procedures; and the degree to which working conditions, educational opportunities and requirements, job status and autonomy enhance rather than impede the exercise of functional decisional independence.

In this day of public questioning of all things legal, it behooves all of us who work in the legal arena, including judges at all levels, to do all we can to revitalize public confidence in the law. To omit administrative adjudication from this endeavor would be to ignore large numbers of the public who are affected by this growing area of the law, and whose views of the legal system are informed by its effects. Unless we ensure that the public is entitled to impartial and independent decision- making in administrative adjudication as in courts, we are excluding many from the promise of neutrality in our system of law, and inviting their cynicism.

Administrative adjudication offers unique benefits, including less formality, more flexibility, and the resulting ability to achieve more timely and efficient resolution of cases. These benefits are enhanced, and the public interest is better served, by requiring impartial, independent decision-making by administrative adjudicators as an ethical duty, and by ensuring this through appropriate institutional structures and management practices.

1. See An Independent Judiciary Report of the Commission on Separation of Powers and Judicial Independence, American Bar Association, July 4, 1997, at iii.

2. Id.

3. Although such entities generally provide for greater independence from inappropriate agency influence, how they are structured and managed is critical to avoiding the potential for more concentrated inappropriate pressures that were previously spread among multiple offices serving various agencies. See the ABA Model Act for the Creation of A State Central Hearing Agency, adopted February 3, 1997, for an example of how to structure such an office.

4. See, for example, 5(c), 1946 Federal Administrative Procedure Act; 9(2), 1946 Model State Administrative Procedure Act; Commissioners' Prefatory Note, 1981 Model State Administrative Procedure Act.

5. Various model codes of judicial conduct for administrative adjudicators include essentially the same provisions as those governing judicial branch judges, and commentators often assume without question that administrative adjudicators are subject to the same ethical requirements. See Shaman, Lubert, and Alfini, Judicial Conduct and Ethics, 4.25 at 144 (2nd Ed. 1995).