Legal Battles

There is no justice without a fair trial

Neal Deoul

Imagine a legal system in which the plaintiff also is the judge and the jury. Or imagine a legal system where the defendant in a case decides his/her own guilt or innocence.

Neal’s Legal Battles

By Kathleen Deoul

There is no justice without a fair trial

Imagine a legal system in which the plaintiff also is the judge and the jury. Or imagine a legal system where the defendant in a case decides his/her own guilt or innocence. Perhaps that is not troubling if you are the plaintiff in the first instance, or the defendant in the second instance. But in truth, the American system of justice is based on impartial review of cases brought by and against citizens of the country or state. The theory underlying that, of course, is that impartial justice cannot be derived from a party who has a direct stake in the outcome. At least that is what we learned in Civics classes. In fact, the reality is far more troubling. If you appear in a Maryland administrative hearing as a defendant, your accuser will decide your guilt or innocence.

In a typical civil lawsuit, a plaintiff brings an action against a defendant. Both sides present their case to an impartial judge and/or jury. After reviewing and adhering to rules of evidence and procedure, the impartial third party - again, either a judge or a jury- decides the outcome of the case. In such a case, the trial court’s ruling is final, and either party is free to appeal to an appellate court.

But the murky territory of the Office of Administrative Hearings (“OAH”) bears little resemblance to typical civil legal practice. An agency, often acting on a tip, investigates a potential target. The agency then prepares a case and initiates the lawsuit. The defendant in the case is required to turn over whatever information the agency requests. The agency can force the defendant to answer interrogatories and submit to deposition. The agency, however, has no duty to provide the defendant with an idea of the substance of its case. In short, the defendant has no discovery rights and is left powerless to defend himself against the State’s
substantial resources.

The case is heard by an Administrative Law Judge, or ALJ, who is free to completely ignore the rules of procedure and evidence to which all other judges must adhere. The ALJ renders and submits recommended findings of fact and conclusions of law to the head of the division that initiated the proceedings against the defendant. In turn, the head of the agency renders a final decision. In the final analysis, the agency becomes plaintiff, judge and jury.

Adding insult to injury, ALJs and agency hearing officers often utilize an English concept of justice which is expressly disfavored in American law: the “loser pays” approach. In addition to staggering civil penalties, defendants often are forced to pay for the entire cost of the CPD investigation, lawsuit and any court costs associated with bringing the case. The agency is not required to provide detailed analysis of the time spent on an investigation or lawsuit. After an often personally and financially destructive, arduous and contentious lawsuit, the defendant must assume the good will of the CPD and, without question, turn over the fees. The defendant pays for bureaucrats to sue him. It is impossible to know whether the CPD pays legal fees to defendants who win their cases because, in ten years, a defendant win apparently has yet to happen. The message: you cannot get a fair shake in this process -much less win- and instead of defending your Constitutionally guaranteed rights, you better just agree with whatever the CPD throws at you.

The OAH was created by Senate Bill 658 in 1989. Prior to its creation, an agency hearing examiner presided at trial, and then rendered a final decision. ALJs did not exist. Theoretically, the addition of the ALJs was supposed to reduce litigants’ perception of bias. In advocating for “Impartial Hearing Officers”, the Sun editorial staff surmised that “Hearing officers …owe their allegiance to the agencies that pay their salaries. Yet they are supposed to act as ‘impartial’ arbiters on policy and personnel disputes in which the agencies are defendants.” (May 2, 1989). With the exception of the addition of fifty-one ALJs and a myriad of other bureaucracy, (which the Department of Personnel correctly predicted in opposing SB 658) nothing has changed. The final arbiters in administrative cases, agency hearing officers and agency division heads, still owe their allegiance to the agencies that employ them and pay their salaries. In fact, at least one of the Consumer Protection Division’s hearing officers under the pre 1990 system was appointed as an “impartial” Administrative Law Judge in January 1990.

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Apparently, the Consumer Protection Division (“CPD”) does not understand that the administrative process is supposed to protect litigants against bias. In one case, defendants found themselves in the surreal position of defending themselves by day, and watching the “impartial” Attorney General repeatedly appear on television solely to make ad hominem attacks on the defendants by night. Are we to believe that the head of the CPD -the Attorney General’s direct subordinate- can render an “impartial” final decision which may make a public liar out of his media hungry boss? In another CPD case, an ALJ recommended that a defendant pay the CPD close to $42,000 in civil penalties. The CPD, however, thought $42,000 too paltry a sum: defendants were ordered to fatten the CPD’s already well-funded pockets in excess of two million dollars in penalties. The two million dollar homage did not pay for restitution or for the CPD’s costs for the case- the CPD ordered the defendants to pay those as well. Statistically accurate research about the CPD’s decisions is almost impossible, given their archaic record keeping system. But, not surprisingly, a review of all cases brought by the CPD since 1989 did not reveal any cases where the Division ruled against itself. How can justice prevail in such a system?

In effect, SB658 created a useless legal bureaucracy whose decisions are not even binding. The citizens of Maryland have purchased new offices, new support staff, and other taxpayer supported comforts to bolster the administrative process. Unfortunately, Maryland’s citizens also are paying for a smoke-and-mirrors approach to justice. The question remains: aside from taxpayer dollars funding the OAH, where is the change?

How has the OAH promoted fairness or equity?

Perhaps one of the reasons that ALJ decisions are not binding can be found in the requirements to become an ALJ: three years of law practice and an active member of the Maryland bar. Most, if not all, Circuit Court judges practice for more than ten years before assuming the bench. Admittedly, some administrative hearings are simple, straight-forward matters which are easily resolved without extensive legal experience or practice. However, ALJs also are responsible for the complex, multi-million dollar cases that carry significant civil penalties. The vast majority of lawyers will agree that they- or their similarly situated colleagues- are not prepared to make such weighty decisions after only three years in practice.

To further complicate matters, ALJs do not remain in their positions for extended periods of time. This stands in marked contrast to most judges, whose extended tenure shields them from outside and political pressures. An ALJ, however, must be mindful, especially in deciding high profile and controversial cases, that he or she is not insulated from political pressure, and probably will be on the job market at some point in the future.

A more equitable solution is to hire highly skilled, experienced attorneys as ALJs who must adhere to the same procedural guidelines as their District and Circuit Court counterparts. Assuming that a strong cadre of judges is in place to hear administrative cases, their decisions should be final and subject to appeal as in any other case. Only then will the administrative process provide a fair, impartial forum for the citizens of Maryland.

portrait-Kathleen-Deoul-150x150About Kathleen Deoul

Internationally acclaimed wellness advocate Kathleen B. Deoul founded Cassandra Books. In taking this step, Kathleen hopes to bring her message of health and hope to people all over the world. Full profile

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