Contested Cases II

Contested cases have many of the same attributes as civil lawsuits in the court system. (See Anatomy of a Lawsuit) They have discovery, they may have pre-trial motions. In the contested case, the administrative law judge rules on motions and supervises any discovery. He then convenes the hearing and conducts a trial. Following the trial, the judge then issues his report, containing his recommended decision. The Administrative Law Judge's decision is not a final decision: it is a report to the chief of the agency, the Cabinet Secretary or Commissioner.

But who are the parties to the case?

The parties to the case are the citizen subject to the agency action and the agency itself. As we shall see, however, the ultimate decision is made by the agency too? How can this be? The agency is the judge and the prosecutor, it would seem. For many citizens appearing before an agency, this seems grossly unfair. It may be easier to understand if you recognize the purpose of the contested case. The primary purpose of the contested case is to make sure that agency staff are following the policies of the agency. A citizen has an opportunity in a contested case to show that lower level agency employees have made a mistake. They didn't get the facts right, or they are not following policies in the way that the agency chief would want them to. A contested case is, in effect, an appeal to the agency chief. The ALJ is acquiring information, in effect, to assist the agency chief in carrying out his policies. For this reason, the agency staff appears on one side of the contested case, and the citizen on the other. Under well established principles of administrative law, the agency chief's final deciding staff is separate and segregated from the people presenting the case to the ALJ, at least during the administrative process.

After the ALJ issues his decision, each party has a right to make written argument to the agency chief, taking exception to the recommended decision, its factual findings or its legal analysis. Then the agency chief may adopt the ALJ's decision or issue a different decision. The agency chief has the ability to make different findings of fact, and to come to different legal or policy conclusions.

Once the agency chief has decided, a citizen may challenge the final administrative decision in an appropriate court. Most agency contested case decisions are reviewed by a court of appeals. In this appeal, the court of appeals takes no new evidence; it reviews the record to make sure that the agency chief's final decision was not arbitrary and capricious or otherwise unlawful.