Malcolm Rich: Central Panels promote Fairness, Effectiveness, and Efficiency in Administrative Adjudication

Access to Justice ,

The Hidden Judiciary: The Role of Central Panels in Improving the Fairness, Effectiveness, and Efficiency of Administrative Adjudication

By Malcolm Rich, Executive Director of the Collaboration for Justice of Chicago Appleseed & Chicago Council of Lawyers

As states expand the range of issues and disputes entrusted to administrative law judges, there is increasing interest in how to foster the independence, fairness, transparency, and efficiency of administrative adjudication. The central panel system is one of many approaches jurisdictions have adopted in pursuit of these goals.

In October, I had the opportunity to present the results of our research on the administrative judiciary to an audience of Chief Administrative Law Judges from central panel agencies located throughout the U.S.  The central panel system is a framework to increase the judicialization of the state administrative process by seeking to keep the administrative judiciary separate from the agencies they serve, and to thereby ensure fair, high-caliber decision-making within an environment that promotes cost-efficiencies.

My research on the central panel system spans decades and has been utilized in the expansion of this state-based experiment, administrative adjudication, that has now become a permanent fixture in American jurisprudence. Recently, Illinois took its first steps toward the adoption of a central panel system.

On April 29, 2016, then-Governor Bruce Rauner signed an “Executive Order to eliminate the Backlog and Delay in State Administrative Proceedings.”  The Order established a pilot program—the Bureau of Administrative Hearings—with the goals to gather information on and test consolidation of administrative hearing pools, identify areas to improve efficiency, and introduce into administrative adjudication higher levels of transparency and accountability. A second Executive Order, also issued by Governor Rauner, made the Bureau of Administrative Hearings permanent.

In the 1970s, states began to experiment with what was called the “central panel system of administrative adjudication” – an approach first utilized in California in 1945. In this new model, administrative law judges (ALJs) are not employed by the state agencies whose cases are being heard, but instead by a distinct central panel agency created solely to manage them.

As more states debate the independence, quality, and cost of the administrative judiciary, much of the discussion historically revolves around the problems each individual central panel agency faced in being created, and the even bigger challenges of getting the funding necessary for both the present and for the expansions needed. Every central panel is different, shaped either by the legislative battles or debates that led to an Executive Order, leading to its creation. These differences inform how each central panel operates—including the kinds of cases heard, agency funding, how decision-making independence is ensured, and whether there are cost-efficiencies.

Legislative battles to create central panel agencies often resulted in selected agencies being exempt, in order to avoid potentially deadly political battles. Sometimes agencies provided the opposition; sometimes unions provided the opposition; sometimes differing viewpoints between the executive and legislative branches led to a particular compromise. But there was consistent tension, always, around whether an ALJ should be a specialist, hearing only one type of case, or a generalist, hearing a variety of cases. And always, lurking in the background, was the question of whether an ALJ should have final decision-making authority.

In 1981, there were seven central panel agencies. On May 8 of that year, a workshop was held in Chicago to provide a forum for exchange of information, open to state and federal ALJs and to researchers doing work in the area of administrative law. The event, co-sponsored by the American Judicature Society and the Administrative Conference of the U.S., became a forum for the candid discussion of both the similarities and differences between the state and federal adjudicative systems and consideration of the strengths and weaknesses of central panel systems.  In 1983, we produced a monograph based on the workshop and on independent research, Central Panel System for Administrative Law Judges: A Survey of Seven States.

Over the next thirty years, there was substantial growth in the central panel approach, with more than thirty states and municipalities adopting central panels. In September 2014, I was contacted by Administrative Law Judge Larry Craddock, who asked me to assist in doing a new research study of the central panel system. The study was to emphasize what had changed to lead to the movement’s growth; how central panels were currently operating; and what pros and cons the approach had thirty years after the initial study. Judge Craddock, who recently passed away, was a tireless advocate who promoted social justice generally, and the quality and independence of administrative adjudication in particular. He had come to believe that the central panel approach was a key to reaching these goals and wanted to promote research around central panel efforts. I agreed to lead the research effort.

In February of 2019, we released a report entitled The Need for a Central Panel Approach to Administrative Adjudication: Pros, Cons, and Selected Practices. I prepared this report with the invaluable help of Alison Goldstein, with pro bono assistance from Goldberg Kohn, and oversight by the Access to Justice Committee of Chicago Appleseed and the Chicago Council of Lawyers.Since The Need for a Central Panel Approach to Administrative Adjudication: Pros, Cons, and Selected Practices was published, the American Bar Association (ABA) House of Delegates unanimously adopted Resolution 100A in August 2019, encouraging state legislatures to adopt practices aimed at increasing the fairness and effectiveness of central panels. The Collaboration for Justice’s February 2019 report was cited extensively throughout the ABA’s decision.

The ABA Resolution recommends the following: (1) the allocation of independent funding to central panels, directly from state legislatures; (2) “the creation of an advisory council to review, analyze, and advise on current and proposed central panel practices;” (3) working to balance the system of both generalist and specialized Administrative Law Judges (ALJs) within the central panels; (4) developing a complaint process that will allow for parties to voice concerns; and (5) “more training for adjudicating cases involving pro se litigants, addressing implicit bias, and increasing ALJ diversity.” This Resolution is a step toward ensuring fairness, justice, and equity in our state trial court and administrative adjudication systems throughout Cook County, Illinois, and the nation as a whole.

Conclusion:

Central panels are a major change in the way administrative adjudication operates; the movement represents state- and municipality-based workshops for developing new approaches to dispute resolution. The focus on the central panel system has historically been on whether the central panel is cost-effective and whether it provides an enhanced perception of impartiality—but it has also provided a laboratory to test new approaches to adjudication. Administrative Hearing Officers are listening to cases that are equally as important as those being heard in many courtrooms, but we have not paid enough attention to administrative justice, including the decision-making independence of these administrative hearing officers—the hidden judiciary.

Benefits of the central panel approach include:

  • Increased efficiency,
  • Cost-effectiveness,
  • Enhanced public trust and perceived impartiality among lawyers and the broader community,
  • An opportunity to bring more transparency to our justice system, as well as to attract higher-quality lawyers who want to become ALJs.

These benefits are weighed against a concern commonly expressed by administrative agencies: that the central panel approach leads to a loss of “agency control” and a loss of “policy expertise” at the adjudicative level. As central panels become more trusted by the executive and legislative branches of state government for their ability to provide high-quality and independent adjudication, they become the “go to” tribunal for administrative adjudication, mediation, and rule-making expertise.

While the pace of creating new central panels has slowed in recent years, the jurisdictions of existing central panels have increased. The typical growth pattern of central panels is an increasing number of agencies having their cases heard by central panel ALJs. Central panel directors report a growing number of new types of cases being brought into their operations, including over forty issues that have historically been handled in other tribunals, such as the state courts of general jurisdiction. These issues include child support, corrections matters, medical leave disputes, and conflicts related to Article IX policies. The central panel has also brought new approaches to adjudication involving large percentages of unrepresented persons—an issue that state court systems struggle with on an ongoing basis.

Chicago Appleseed and the Chicago Council of Lawyers believe that the central panel movement has become such an important part of our justice system that it deserves the ongoing attention of social justice advocates. We must ensure that the administrative adjudication portion of our justice system is accountable and transparent, and the central panel movement is an important part of this goal. We must make reviewing this system a part of our watchdog reform efforts. The lives of hundreds-of-thousands of persons and businesses are at stake.