Neal's Legal Battles

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.