Monday, July 14, 2014

Judicial Independence

What is more critical to the workers' compensation process than judicial independence?

I hear criticism of judges periodically. Many times, the basis essentially comes down to the fact that the judge did not agree with the person who is complaining. It is natural for parties and attorneys to be passionate about their respective arguments. From experience as a litigator, I know it is disheartening to have the judge disagree with your argument or position. 

In each trial or hearing, though, the judge is likely to disagree with someone. The parties are in disagreement, which is why there is a trial. I have said for years that the definition of judicial independence is your absolute right to have the assigned judge disagree with or rule against you. 

In June, I was privileged to speak to the new judges in the Tennessee Workers' Compensation Court. I cautioned them that there will be those in any particular proceeding who will leave unsatisfied. As a litigator, I learned that attorneys tend to believe most strongly in the judges that rule in their favor (if the judge agrees with me, she/he must be pretty smart!).

Should some supervisor tell judges how to rule on cases? My position is an unequivocal "no." The situation has been in the news in Washington state recently. On May 20, 2014, the Seattle Times ran an article titled State Insurance Office Defends Whistle-Blower's Removal.

Allegedly, the Chief Presiding Officer, Patricia Peterson was "in the midst of an intensely contested case when she was removed from her position and placed on paid leave." The day prior to that, she allegedly filed a whistle-blower complaint. In it, she alleged "that OIC (Office of the Insurance Commissioner) Chief Deputy Commissioner Jim Odiorne had violated state law by attempting to influence her on cases before her." The allegation is essentially that this official communicated with her ex parte about pending matters.

The story says that Ms. Peterson has been the chief presiding officer for 19 years, with nine years experience prior to that also presiding over cases. The Times says that she is "essentially a judge." She says that her direct supervisor "made it clear that he would evaluate her on whether her decisions support the commissioner's position." She concluded that Mr. Odiorne was "clearly threatening my job." The Executive Director of the Washington Federation of State Employees said that he believes the OIC "is trying to influence cases," which he believes is not appropriate.

According to a story on, Ms. Peterson is now represented, by a former Washington Supreme Court Justice, Philip Talmage. The issue has entered the political arena in a hearing before the Washington Senate Law and Justice Committee. Talmage is suggesting that all hearings should be conducted by an independent agency like Office of Administrative Hearings (OAH), an agency like the Florida Division of Administrative Hearings of which the Office of Judges of Compensation Claims is a part.

The separation of the fact-finding from the agency making policy, he says, would facilitate independence. Mr. Talmage alleges that agency heads in Washington can change decisions of hearing officers within their own agencies under current law, which would change if those decisions went to the OAH instead. He argued that "if someone can influence an independent hearing officer behind he scenes, it is not due process."

Similarly, according to the Lewiston Sun Journal in June, a legislative committee in Maine voted to continue its monitoring of the state's Department of Labor. There, an investigation concluded that the Governor, Paul LePage and other state officials "had pressured appeals hearing officers" regarding decisions in unemployment compensation claims.

There was anoter story earlier in the year regarding allegations that the Executive Director of the Maine Workers' Compensation Board instituted a rotating case assignment process for judges there. Some alleged that the process was implemented to penalize a particular "liberal" judge based on complaints from a particular employer. Some alleged that this "sent a message telling other hearing officers to decide more cases in favor of" that particular employer. 

It is critical that both sides to any workers' compensation case, that is the injured worker and the employer, receive a fair and impartial hearing. That is fundamental procedural due process. As leaders, we should have expectations for adjudicators. They should be at work and diligent. They should be attentive to their obligations and timely in their dispositions. They should be courteous and unbiased in their demeanor. They should follow the law. They should explain why they have made their decisions. 

They should not be pressured, or feel pressured, by management, labor, or politics. 

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