Features
New Research into Fairness in Administrative Hearings
by Christopher B. McNeil, J.D., Ph.D.

Ever wonder what makes a trial fair?  If you knew a set of benchmarks exists to help ensure a fair trial, would you want to know about them?  Turns out, there are a set of pretty good predictors of fairness, predictors that were identified expressly for use in trial courts.  Social scientists in the 1960s started describing these predictors, in a body of research describing what they referred to as “procedural justice.”  Through field observations, participant surveys, and laboratory experiments, these scientists articulated a set of conditions that help predict whether litigants, judges, and observers believe a trial was, or was not, fair.

By now, much of what these scientists discovered is familiar to us – almost like we’ve known these things all along.  For instance, we know litigants in hotly contested disputes tend to want to share control with the judge over key parts of the process.  Rather than expect the judge to gather evidence (as may be the case in the inquisitorial trials frequently encountered in European courts), litigants expect the court to permit the parties to engage in discovery.  Instead of having the court take the lead in questioning witnesses, litigants feel a trial is fairer if most of the questioning is performed by advocates for the parties.  Procedural justice, social scientists discovered, was predicated in part on how we perceive control over the process is shared among the litigants on the one hand, and the judge on the other hand. 

Later on, scientists learned that control over the process isn’t the only important predictor of fairness: they discovered the role group values play in the perception of fairness in trials.  These values include whether the parties believe the judge has created a level playing field so that all participants have equal access to information and equal opportunities to present their case.  They also include consideration of basic human needs, needs that can be met simply by treating the parties with dignity and respect. 

Throughout the 1960s and on to the 1980s, these emerging principles of fairness in adjudication spread.  Social scientists learned that the same benchmarks that predicted fairness (and perceptions of fairness) in court trials were equally useful in other contexts.  Political scientists found that control over the process was important in election campaigns.  Business managers discovered the decision-making part of business structures could improve perceptions of fairness, if they applied what was learned about procedural justice in trial courts. More recently, the principles of procedural justice were used to ensure a fair distribution of federal survivor benefits in the aftermath of the attacks of September 11, 2001.

One small but important slice of society, however, seems to have missed out on learning from procedural justice research.  Administrative agencies were evolving quite rapidly in the 1960s, and for the next four decades they began to assume more and more of the adjudication roles that had been the exclusive province of trial courts.  It turns out that while agency adjudication expanded – exponentially in areas like the determination of government-based entitlement programs – very little research was conducted to see whether the process followed by these agencies was fair.  Over time, agency adjudication in this country has become the tail that now wags the dog in adjudications – with a volume of fact-finding and decision-making that eclipses the number of trials conducted in judicial-branch courts.  With this growth, however, there have been remarkably few reported studies aimed at determining whether participants in these hearings believe the hearings are fair.

Recently, researchers sought to change this, by carrying out a study designed to test whether the structure of administrative hearings can influence participant perceptions of fairness in the process.  The results, presented last month in a doctoral dissertation at the University of Nevada – Reno, shed some sobering light on a process that may have been allowed to evolve in the dark for too long.  

Supported by a grant from the National Science Foundation, researchers designed a survey for drivers, defense lawyers, and administrative law judges (ALJs), who had recently participated in hearings to determine whether the drivers had violated the states’ implied consent laws.  These are cases where a driver has been charged with DUI and, in addition to facing a criminal charge, also faces the loss of his or her license because the state claims the driver refused to consent to a BAC test incident to arrest.  The study was limited to those cases where an ALJ (and not a trial court judge) was the decision-maker.  Using the same inventory of questions social scientists have used to study perceptions of fairness in trial courts, the researchers asked about fairness in the outcome of these cases, and fairness in the process.

A majority of the drivers – 67% – rated the ALJ’s handling of the case as either not very fair, or not at all fair.  Asked the same question, 79.4% of defense counsel said the ALJ’s handling of their clients’ cases was either not very fair or not fair at all.  In contrast, when asked to rate the fairness of the hearing process, 71.4% of the ALJs said the process was “very fair,” with the remainder saying the process was either for the most part fair or more fair than unfair.  None of the ALJs thought the process was in any way unfair – and when asked how they think the drivers perceived the hearings, most of the ALJs (90.5%) thought the drivers perceived the hearings to be very fair, for the most part fair, or more fair than unfair.

The research explored other core features of adjudication – whether the decision-maker was unbiased and honest, whether he or she took the time to consider the evidence and treated all sides equally, whether the decision-maker was impartial, had enough evidence to support the decision, and took all the evidence into account.  Throughout the responses, from both the drivers and the defense lawyers, these participants responded negatively, and in some cases highly negatively, to both the process and the outcome.

A primary hypothesis driving this research was that participants would feel the process was fairer if the agency did not get to choose the ALJ.  Common sense, and the research into procedural justice, suggests that litigants are likely to be concerned if the prosecutor and investigator in a case becomes the judge in the same case (which is pretty much what happens in an administrative hearing).  To address fairness concerns associated with this kind of hearing, about half of the states now have central panels of ALJs, who are chosen not by the agency but by a chief ALJ, who is still part of the executive branch but is not part of the agency.  The hypothesis tended to be proved true:  in many instances, there was a statistically significant difference between responses from drivers and lawyers that showed hearings before central panel ALJs were perceived as fairer than those in agency-run hearings.  Thus, there is reason to think that there is something about separation of the ALJ from the agency can improve perceptions about procedural justice in administrative hearings. 

Apart from this, however, the study suggests that delegation of judicial decision-making to the executive branch may carry with it a cost far more profound than is currently understood.  The results of this research suggest that the loss of a judicial-branch adjudicator, and the use of an executive-branch ALJ as a proxy, may lead to significantly depressed perceptions of procedural justice, at least among claimants and the bar.  There were far too few ALJ participants in the study to produce statistically significant results, so more data is needed.  These results suggest, however, the need to begin a course of study into agency adjudications, applying well-established principles of procedural justice research, on agency adjudication.  We need to have more answers to the question: are administrative hearings are fair, and if not, are there are structural changes that may lead to greater trust and confidence in these hearings.

Christopher B. McNeil, J.D., Ph.D., is a Professor of Legal Writing and Adjunct Instructor of Administrative Law at Capital University Law School, in Columbus, Ohio.  He is a former chair of the Ohio State Bar Association’s Administrative Law Committee, and an Administrative Hearing Examiner for state agencies in Ohio.  You can contact Chris at 614.571.6031 or cmcneil@iwaynet.net.  This article is based on research conducted between 2006 and 2007, supported by a grant from the National Science Foundation, Grant #0550758.  The full text of the dissertation describing the research, “Perceptions of Fairness in Agency Adjudications: Applying Lind & Tyler's Theories of Procedural Justice to State Executive-Branch Adjudications,” is available at http://works.bepress.com/cbmcneil.