Thursday, August 3, 2017

Judicial Transparency Advocated

WorkCompCentral reported recently that the Massachusetts Advisory Councils Want Slow-Acting Judges Disciplined or Removed. The Advisory Council issued a report that noted a decline in "cases entering the dispute resolution system," but a persistence of some cases nonetheless not being decided timely. The Council therefore recommended that "appropriate discipline measures, including the process of statutory removal” should be undertaken. 

The Council Report is an extensive 179 pages documenting the current status of the Massachusetts workers' compensation system. It describes their process for resolving litigated workers' compensation claims, which includes conciliation (mediation), conferences (informal pretrial hearings) and hearings. The 2016 report celebrates that many claims are resolved in Massachusetts at the conciliation stage. 

The report notes that 2016 showed a decrease in both the conference and hearing volumes. In Massachusetts, 21 Administrative Law Judges preside over workers' compensation cases. That is one ALJ for each 333,333 residents, compared to about 645,161 Floridian for each Florida Judge of Compensation Claims. 

The 2016 report stresses the need for "prompt adjudication of claims." To that end, it suggests Massachusetts needs "an efficient dispute resolution system." And, it says that measurement of timeliness is appropriate in measuring system success. The focus, it says, should be on the time "between the first hearing and the hearing decision." That is, the time from the trial to the order. The report quotes a Massachusetts statute that requires these orders "shall issue within twenty-eight days of the conclusion of the hearing.” In that regard, very similar to Florida's requirement that the trial order is issued within 30 days. The data collected by the Florida Office of Judges of Compensation Claims supports that this deadline is certainly attainable. 

The Massachusetts Advisory Council then provides anecdotal instances in which that deadline was not met. In one 2016 decision, the time between hearing and the written decision was "over three years." The anecdotal examples demonstrate "a problem with outstanding decisions." In an appellate decision, which in Massachusetts is from a Review Board, a judge noted that the delay had become "the paramount issue in this case," and lamented that "the harm they have suffered has been caused, or exacerbated, by the judge’s failure to honor the letter, and spirit, of the law.” That is an accolade that no judge wants laid on their doorstep; we are not here to let the system or the people down. 

The Council noted that other Review Board decisions have excused delay, concluding that 28 day "ideal unattainable," and noting the volume of responsibilities an ALJ has. The Council noted the difficulty of making decisions, and the process of examining records, weighing testimony and making credibility determinations. And, it noted that "more than three-quarters of all decisions issue within six months, and 95 percent are filed within one year."

Comparing this to Florida, our performance is somewhat more consistent. In fact, in 2016 the Florida Judges of Compensation Claims issued their trial orders within the 30 day statutory period 88% of the time. There have been years in which that performance exceeded 90%. And, the vast majority of those that remain beyond 30 days are entered within 90 days of the hearing. In fact, by the 90th day, 97.4% of cases have a final order rendered. See Florida Office of Judges of Compensation Claims 2016 Annual Report, page 36. 

In 2016, the shortest time between trial and entry of the final order was 0 days. and the longest was 278 days. So, Florida Judges entered 100% of trial orders in less than ten months, compared to Massachusetts judges with 5% of trial orders still pending a year after trial. And the individual times of each Florida Judge are reported annually in the OJCC report. The Florida statistics are transparent and readily available each November in a report filed with the legislature, governor, and others.

The Massachusetts Advisory council recommended that "the Senior Judge examine and define appropriate time frames in which to evaluate judicial performance." Furthermore, that "judges who fail to meet the performance levels of their peers be issued appropriate discipline measures, including the process of statutory removal." Fiscal Year 2016 Annual Report, Executive Summary, "Late Decisions," (pages of report are unnumbered). 

The recommendation of standards and transparency are laudable. It is appropriate for parties to learn the outcome of litigation as rapidly as practical. See A Simple Method for Expeditious Care. But, it is also the fact that delays can occur in issuing final orders, and some of those may well be beyond the control of a trial judge. There are several, but examples include the issuance of a stay of proceedings by a federal bankruptcy court, a judge's illness or injury, and in Florida the engagement of the Expert Medical Advisor statute. 

Any system for measuring performance should be transparent, meaning public, and defined. Such a system should also acknowledge that there are in fact good reasons which would excuse non-compliance in individual circumstances. And, such performance measurement should acknowledge that there is more to being a good judge than making the trains run on time, see The Devil is in the Definitions. However, I am proud of the fact that Florida judges enter those orders within 30 day of hearing in 88% of the cases. That is a great demonstration of dedication, public service, and effectiveness. And, I would posit that if that can be done in Florida, it can be done anywhere that judges decide it will be. 

Maybe that change can come to Massachusetts without the threats of "discipline" or "removal?" Maybe that change, timely orders, can come everywhere if judges just decide that it will be.

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