Pa. bill aims to reform judges
HARRISBURG — At a time when polls show Americans’ confidence in the judicial system is wavering, Pennsylvania lawmakers are trying to improve the appearance of fairness of another group of decision-makers — administrative law judges.
They are civil, not criminal judges, who decide cases for state agencies. But a leading jurist uses an analogy to criminal law to make his point. “Imagine walking into a criminal prosecution and the jury is made up of employees of the district attorney’s office and the judge is the district attorney,” said Judge Kevin Brobson of Pennsylvania’s Commonwealth Court. “That’s essentially an administrative agency proceeding.”
Buried in layers of bureaucracy, hundreds of administrative law judges and hearing officers make critical decisions about citizens’ appeals to executive agencies, dealing with issues such as utilities seeking to raise rates on consumers, where and when liquor can be purchased and how much workers are compensated for injuries.
“Their decisions affect every one of us every day,” said John Gedid, professor emeritus at Widener University Law School.
Some administrative judges work for agencies including the Public Utility Commission and Liquor Control Board. Others contract cases through the Office of General Counsel’s Hearing Officer Program. The exact number of judges is unknown, but experts estimate hundreds.
Not all administrative law judges have final authority over disputes, some simply issue recommendations to the agency.
For the most part, judges and hearing officers consider themselves “autonomous” from the executive agency that provides cases to them; however, some lawmakers said they are concerned that the close relationship leaves room for the appearance of unfairness.
“Most agencies keep the (judges) separate from the other functions of the agencies, but the appearance is someone who is employed by the agency and has stake in the other side is deciding their case,” Gedid said. “I’m not saying that they are biased; it’s the perception.”
This perception has led lawmakers to introduce legislation to restructure how administrative judges work.
Legislation is pending in the state Senate to centralize the judges and hearing officers into one hearing panel, a measure proponents say would improve efficiency and the appearance of fairness while reducing costs.
“I hear all the time that people feel like the deck is stacked against them,” said Sen. Richard Alloway, R-Franklin County, a bill sponsor. “It’s a positive thing for business and people to get timely decisions and (to) really uphold the basic tenet of fairness.”
Brobson, speaking personally and not as a judge, testified in support of the centralized panel at a Senate State Government Committee in June.
Opponents of the centralized panel contend that consolidation would eliminate judges’ specialization that makes them more knowledgeable and effective at handling what are often technical cases.
Gov. Tom Wolf, the Pennsylvania Bar Association and most executive agencies do not support the legislation.
Alloway said agencies “trying to protect their turf” will try to kill the legislation.
Eric Epstein, co-leader of Rock the Capital, a nonpartisan, voter advocacy and education group, and a consumer advocate for cases before the Public Utility Commission, has litigated a number of cases under the judges for the PUC. He said many decisions didn’t go in his favor, but he said he is almost always satisfied with the process. These judges “tend to be well-qualified, impartial and competent,” he said.
Gedid said agencies wouldn’t have to worry about doing away with specialized judges, as whoever is appointed chief administrative law judge of the panel could allocate cases based on the expertise of the judges under him.
Alloway said existing judges would be cross-trained to pick up the slack when necessary and chip away at agency backlogs. He and Gedid cited 27 other states that have passed similar legislation. They cited Maryland as a success, pointing to reduced costs and increased efficiency.
Like Maryland’s law, Alloway’s bill has language that would allow agencies to opt out of sending cases through the panel. He said the Maryland office has found that many agencies choose not to opt out once they see improvements.
Alloway’s bill is pending in the Senate. It was unanimously passed in the Senate Judiciary Committee last month. For now, the legislation will be put on the back burner as legislators wrapped up their session Wednesday. They are set to return in mid-September.
Carley Mossbrook is an intern with the Pennsylvania Legislative Correspondents’ Association.