Neal's
Legal Battles
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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