H. B. 2526 Creates Permanent
Office of Administrative Hearings Rep. Lane Shetterly, chairman of the Hearing Officer Panel's Oversight Committee, has introduced legislation that would make the Hearing Officer Panel a permanent feature of state government under a new title--the Office of Administrative Hearings. Shetterly described the bill's prospects for passage as "very good" during a recent e-mail interview, stating that the bill "had no fiscal impact" and had picked up support from a number of diverse groups, including the bar, the Department of Justice and legislators in both the Democratic and Republican camps. "The Panel has earned broad support among legislators during its pilot project phase," Shetterly said. "I think the Panel is rightly regarded as a success. It has improved the perception of fairness--and fairness in fact--in contested case proceedings, and has demonstrated that it is cost efficient." Known as HB 2526, the proposed legislation would retain the reformulated Office of Administrative Hearings within the Employ-ment Department, but would introduce a number of changes. Among these changes is at least one other significant name change--replacement of the statutory term "Hearing Officer " with the title of "Administrative Law Judge," a move long advocated by OAALJ. In addition, the proposed legislation would extend the life of the oversight committee to provide long-term guidance for the future development of the Panel. "Changing the title of 'hearing officer' to 'administrative law judge' will bring the Panel into conformance with other similar positions already in state government, such as in the Public Utility Commission and Workers' Compensation appeals, as well as with federal agencies," said Shetterly. "Panel hearing officers perform the same function as the administrative law judges in these other state and federal agencies, so it makes sense that they should share the same title." Another prominent feature of the legislation is the treatment of the Chief Hearing's Officer's position, which is also renamed, as Chief Administrative Law Judge. Under the current version of HB 2526, the Chief Administrative Law Judge would be appointed by the administrator of the Employment Department, with the advice and consultation of the Over-sight Committee. The Chief Administrative Law Judge would be appointed for four year terms, with the potential of removal only "for cause" during the term of appointment. Members of the Oversight Committee closely studied the possibility of moving the Panel to another state agency, besides the Employment Department. Committee members eventually rejected the notion of proposing a move during the current legislative session due to a positive relationship with the Employment Department's new director, Debbie Lincoln, and the state's ongoing fiscal crisis. "At this time, fiscal considerations dictate that the Panel remain where it is," said Shetterly. "Any move to relocate the Panel, no matter what the long-term savings might be, would have a fiscal impact in the next biennium. In this budget environment that is not feasible." Other significant features of the legislation include a provision that would allow the Chief Administrative Law Judge to make "temporary appointments" of student law clerks for terms not to exceed 24 months. Chief Hearing Officer Tom Ewing has indicated that student law clerks would primarily be used to conduct legal research to assist ALJs and to assemble legal resource material for use by both managers and hearing officers in response to inquiries from OAALJ. The balance of HB 2526 essentially replicates it predecessor HB 2525 which established a central panel of state hearing officers in 1999 as a pilot project. In its current form, HB 2526 contains no significant changes in the list of state agencies that are required to use ALJs drawn from the central panel of state hearing officers, or from those agencies that are exempted from coverage. HB 2526 is not the only proposal currently before the legislature that would remove the Panel's sunset provisions and make it a permanent agency. The Oregon State Bar's Administrative Law Section has proposed HB 2058 which would remove the sunset provisions of HB 2525, as well as incorporate significant reforms regarding discovery, ex-parte contacts and impartiality. However, Shetterly, who is also chair of the bar's administrative law section, gives HB 2058 little chance of passage in the midst of the states fiscal woes. "I think HB 2058 represents what we wish we could achieve for the Panel, and what we might look to achieve over the long term," said Shetterly. "It is aspirational. But it also carries a fiscal impact and a subsequent referral to the Ways and Means Committee, from which many bills this session will not emerge. For now, I think HB 2526 represents what is practical and what can be accomplished, given the fiscal and political realities." HB 2526 is a product of recommendations adopted by the Hearing Officer Panel's Oversight Committee during a meeting on December 19, 2002. The oversight committee's recommendations to rename the Panel, retain it in the Employment Department and to make the Panel a permanent feature of stage government follow in the wake of a largely favorable audit of the Hearing Officer Panel's activities completed in November 2002 by the Legislative Fiscal Office.
Ninth Circuit Blasts
Boilerplate Credibility Findings
The court began its analysis by noting that credibility findings, and demeanor findings in particular, are generally accorded substantial deference. "This deference presupposes, however, that each case is evaluated on its own merits." 295 F.3rd at 1050. The court explained that boilerplate decisions do not provide an adequate basis for the Board or the court to conduct review of the judge's determination. In reviewing the immigration judge's findings on the petitioner's demeanor in the case at hand, the Court of Appeals also took judicial notice of the judge's decisions in two other cases. The court then noted that, with the exception of erratically altered pronouns, the passage in this decision was nearly identical to the judge's credibility findings in two other asylum decisions involving persons from Sri Lanka that the judge had heard that same week. Id. at 1051. The Court of Appeals was particularly troubled by the judge's identical description of the demeanor of three different witnesses. The court noted: "Of all matters passed upon by a hearing judge, conclusions about demeanor are the least susceptible to generalized observations." Id. The court added that the very personal nature of demeanor demands individualized findings. The court then explained: "It strains credulity that three different people would testify in the same 'unnatural manner . . . without . . . occasional pauses.' It is equally improbable that all three petitioners had stony countenances except at some "point later in the proceedings" describing their 'wish not to return to Sri Lanka.' Could each of the three petitioners fail to show a 'change in countenance or signs of emotional upheaval' at exactly the same time in the hearing sequence? We fear these pass-ages demonstrate the [immigration judge's] 'predisposition to discredit' the testimony, rather than any lack of credibility on the part of the witnesses." Id. The court also found that the immigration judge's demeanor findings were inaccurate. It noted that the judge twice used the male pronoun when referring to the petitioner, a woman. In addition, the judge appeared to have confused the facts in this case with those in another proceeding before her. Finally, the court criticized the judge for improperly substituting her own hypothesis for the evidence in the record. "An immigration judge's personal conjecture 'cannot be substituted for objective and substantial evidence.'" The court then added, "boiler-plate speculation is not substantial evidence." Id. at 1052. The court concluded that a remand for individualized, impartial evaluation was necessary. Acknowledging that the assignment of an immigration judge is within the province of the Attorney General, the court suggested, however, that the petitioner would be far better served by the assignment to a different judge. Id. at 1055. The Paramasamy decision is a
good reminder that ALJs need to be conscientious in writing their
decisions, especially those involving credibility determinations. While
it is appropriate to use standard verbiage in setting forth
well-accepted legal principles, judges should steer clear of boilerplate
decisions. The opinion needs to demonstrate that the case was evaluated
based upon its own individualized circumstances. OAALJ Annual Meeting Features
Judge Wollheim
Judge Wollheim addressed constitutional due process in administrative hearings during a one-hour presentation. He noted that due process is a flexible concept, calling only for those procedural protections that a particular situation requires. In support of this obser-vation, he discussed several cases including Mathews v. Eldridge, 424 US 319 (1976), a federal case concerning termination of Social Security benefits in which the court held that an evidentiary hearing was not necessary prior to a termination of Social Security benefits. Wollheim noted that Mathews established a three-part balancing test for determining what level of process was due in a particular situation. The relevant factors established in Mathews include: (1) the private interests affected by the administrative action; (2) the risk of erroneous deprivation of those interests through the action and (3) the fiscal and administrative burden that additional or alternative procedural protections will entail. Wollheim discussed Koskela v. Willamette Industries, 331 Or 362, 15 P3d 548 (2000), modestly noting that the Oregon Supreme Court adopted the reasoning of the Court of Appeals' dissent. Koskela is an Oregon Workers' Compensation case concerning whether an injured worker claiming permanent and total disability is entitled to a full evidentiary hearing--whether the due process clause trumped ORS 656.283, which prohibited evidence not previously presented to the department. The court reasoned that even though the proceeding without oral testimony would be more efficient, the due process clause required "a minimally adequate hearing," including oral testimony. OAALJ's governing board hosted the annual business meeting that followed. Based on a recommendation from Treasurer Dee Anna Hassanpour, the membership unanimously voted to increase annual dues from $50 to $65. Hassanpour reported that an increase in OAALJ dues was necessary to offset the costs to OAALJ of maintaining the organization's affiliation with the National Association of Administrative Law Judges. In addition, the membership approved a proposal to expand the membership of OAALJ's governing board from seven to nine members. Newly elected board members are Kevin Anselm, Larry Smith and Alison Greene-Webster. Monica Smith, Dee Anna Hassanpour and Cathy Coburn were re-elected to the board. Legislative and Rules Committee
Meets The OAALJ Legislative and Rules Committee met in conjunction with the First Friday lunch held in Salem on February 7, 2003. This committee is charged with review of proposed legislation during this legislative session, as well as reviewing any proposed changes in administrative rules effecting hearings. In this connection, the committee reviewed amendments in the Model Rules that have been proposed by the Department of Justice. After review by the Committee, and by the OAALJ Board, comments have been submitted to the Department of Justice. The OAALJ has generally endorsed the changes proposed, but suggested additional changes need to be made in several rules. First, while the proposed rules would broaden the authority of ALJs to control discovery process, they still do not, in the view of the OAALJ Board, conform to the authority provided ALJs under HB 2525. The Board has requested that the Department of Justice take a further look at this matter. The changes also included a review process that the Board believes could be improved. The OAALJ has requested adjustments in the rule regarding Late Hearing Requests, (OAR 137-003-0528), to regularize the process in two-party cases, and to clarify the obligation of the agencies when no hearing request is ever made. Additional changes in the process for submitting questions to the agency (137-003-0635) were also requested, including provision for a deadline for response and for the opportunity for argument by parties adverse to the agency's position. Finally, the current process for closing cases where further action is unnecessary (where the case has become moot, for example) has been found to be somewhat awkward in practice. The OAALJ asked that the Department of Justice make provision for orders dismissing cases in such instances. Public Rulemaking Hearings are scheduled on the proposed Model Rule changes for February 26, 2003 at 9:30 a.m. at the State Office Building in Portland, and on March 12, 2003 at 1:30 p.m. at 3218 Pringle Road SE, in Salem. If any OAALJ member has suggestions or comments on the proposed rules or the process, they may attend these hearings, or communicate their concerns to the OAALJ committee members. These are: Skip Russell, chair, Steve Rissberger, Allison Webster, Cathy Coburn and Kevin Anselm. The committee will be meeting at the First Thursday lunch in Salem, each month through the end of the legislative session. We would welcome any others who want to attend. NOTES and COMMENTS: Trujillo v.
Pacific Safety Supply, In a prior issue, this publication summarized Koskela v. Willamette Industries, 331 Or 362 (2000), in which the Oregon Supreme held that a Workers' Compensation claimant had a constitutional right under Mathews v. Eldridge, 424 US 319 (1976), to a full evidentiary hearing in a permanent total disability case. With the granting of review in Trujillo v. Pacific Safety Supply, 181 Or App 302 (2002), the questions posed by evidentiary restrictions in other permanent disability hearings before the Workers' Compensation Board are also before the Oregon Supreme Court for determination. In Trujillo, a divided court rejected claimant's contention that he had a constitutional right to testify at an oral hearing concerning the rating of base functional capacity (the strength level at which the worker was performing prior to injury). Citing the three basic Mathews criteria--the importance of the interests at issue; whether the matter in question requires a judgment about credibility and veracity so that the probable value of an oral hearing is substantial; and the additional cost of providing a hearing as against the magnitude of the interests at stake--the majority determined that the issues were less important than those in Koskela and that "the impact of requiring an oral hearing on all BFC disputes would not be insubstantial." 181 Or App at 308. The dissent, while disagreeing in several particulars with the majority's analysis, especially noted that claimants already had a right to a hearing before an Administrative Law Judge and that increased costs from allowing testimony therefore would be minimal. 181 Or App at 315. Similar considerations arose in Mount v. Department of Consumer and Business Services, 181 Or App 458 (2002), in connection with whether a claimant could depose a medical arbiter in a permanent partial disability case. The court again divided, the majority holding that the procedure in question did not involve the Koskela test concerning whether at issue was a factual dispute involving credibility or veracity. The dissent, arguing that in the case under review the injured worker was precluded both from testifying and from cross-examining the medical arbiter, felt that the preclusions violated the due process clause. The peculiar problems posed by questions of medical evidence aside, the majority, as the dissent asserts in Trujillo, badly misunder-stands the realities of the adjudicatory process in PPD cases. Claimants and employers have an absolute right to a hearing on a reconsideration order. These cases are handled no differently than others: all requests result in the creation of a file and assembling of subsequent documentation, assignment to an ALJ, and docketing of the case for an actual hearing within 90 days. Some percentage of hearings are actually convened on the record, documentary evidence received, and the matter argued. A substantial number settle prior to hearing. In perhaps the largest group, agreement is reached prior to the hearing date to submit the case based on the documentary record (which the parties have at some point agreed upon and filed with the ALJ) together with written closing argument; the matter then goes on to a full-blown ALJ opinion and order. It is on this background that one reaches the question whether the worker or employer witnesses may testify as to issues of basic fact. As noted, that testimony would occur at an already-scheduled hearing within the overhead the agency has already run in processing the case. In all major locations, the hearing room is on the premises. One could even argue that the current system of arranging for and then monitoring a written submission process is less efficient than simply going ahead with convening and concluding the already-scheduled hearing. Perhaps there may be some inconvenience for the parties, but there are virtually no "increased costs" in allowing individuals to testify in these cases. To a generation of administrative law practitioners imbued with the notion that Oregonians have a basic right, akin to other democratic rights of political participation, to testify under oath as to questions of basic fact in recognized cases where governmental action is challenged, the Court of Appeals' continuing obtuseness in this area is puzzling and troubling. NEWS FROM NATIONAL The Annual Meeting and Conference of the National Association of Administrative Law Judges, of which OAALJ is an affiliate, was held last October 20-23, in Lexington, KY. The Kentucky affiliate did a marvelous job with the planning and hosting of this highly successful conference. Record proceeds from the conference, along with the cost saving measures implemented since the fall of 2001, have significantly improved NAALJ's financial status. At the annual business meeting in Lexington, I was elected to a two-year term on the Board of Directors. This will give OAALJ a direct voice in the workings of NAALJ. The new Board has adopted a new liaison program, in which each Board member serves as a district liaison for affiliates and individual members in approximately five states. I look forward to hearing any concerns or suggestions regarding the national association from members in my district which, of course, includes Oregon. The Board is also taking measures to assure involvement of affiliates in the business of NAALJ. One such measure is the initiation of a challenge grant, sponsored by Lexis-Nexis, that will assure attendance of one member from each affiliate at the Annual Meeting and Conference scheduled for October, 2003 in Orlando, Florida. The concept is for the affiliate to match funds with the Lexis-Nexis grant to assure attendance without cost at the conference. NAALJ will also waive or reduce the conference registration fee for grant recipients. This is just one way the Board is seeking to establish new benefits for affiliates as well as for individual members. NAALJ's next educational program is scheduled for March 30 through April 4 at the National Judicial College. "Mediation for Administrative Law Judges" is now an official course offering at NJC with the cooperation of NAALJ and NCALJ. The NAALJ/NCALJ Mid-Year Program is set for May 29-31 in Chicago, Illinois. "Administrative Law Judges and Agencies: Working to Enhance Public Confidence in Administrative Adjudication," will include one full day on decision writing and a day and half on the roles and relationships of ALJs and agencies. Watch your email for notification by early March that the newsletter is ready to download from the NAALJ website. If you do not have email available, please let me know and I will make certain that a hard copy is mailed to you. The upcoming edition will contain more detailed information about NAALJ activities this year, and about the upcoming seminars and conferences. Like the OAALJ website (www.oaalj.org), members should bookmark the NAALJ website (www.NAALJ.org) and visit the site often. In the meantime, if you should have any questions, concerns or suggestions regarding the national association or its upcoming programs, please do not hesitate to contact me at ddtmarcus@netzero.net OAALJ ELECTS NEW OFFICERS OAALJ's governing board unanimously elected new officers for 2003 at an organizational meeting held on January 22. New officers include: Steve Rissberger, President; Maurice "Skip" Russell, Vice-President; Monica Smith, Secretary; and Dee Anna Hassanpour, Treasurer. WHY SHOULD I BE AN
OAALJ MEMBER? What does OAALJ do with its volunteer and membership resources (my dues)? OAALJ's membership recently approved a modest increase in membership dues from $50 to $65, primarily to offset the increasing cost of continuing our affiliation with the National Association of Administrative Law Judges (NAALJ). Accordingly, this is an appropriate time to examine just what OAALJ does with your membership dues and how membership works to your advantage. A portion of your dues includes membership with Administrative Law Judges around the country in NAALJ from which you will receive:
OAALJ provides our statewide members, the public and the legal community with the following advantages and services:
Advantages and services OAALJ exclusively provides to active OAALJ members include:
Even if you haven't been an OAALJ member in the past, we hope that you will consider enrolling. A copy of our membership application is available at our website at www.OAALJ.org. New members are always welcome--as well as old members who wish to become active members once again. ____________________________________ OFF
THE RECORD OREGON
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES Opinions expressed herein are those of the individual authors and do not necessarily represent the views of OAALJ members or the Association's Board of Directors. Letters to the Editor or other materials in response to newsletter content will be published as space allows. Submissions and subject matter suggestions are always welcome. Editor: Bruce Black. Assistant Editors, this issue: Steve Rissberger, Cathy Coburn. Contributors, this issue: David Marcus, Steve Rissberger, Maurice "Skip" Russell, Cathy Coburn, and Alison Webster. Layout and Technical Assistance: Dani Daniel. |
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