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Should state administrative law judges have greater independence?

A former state Supreme Court justice is troubled by the power of state executives to overrule big decisions on health care and other matters.
Attorney Phil Talmadge and Patricia Peterson, judge at the Office of the Insurance Commissioner

Attorney Phil Talmadge and Patricia Peterson, judge at the Office of the Insurance Commissioner Photo: John Stang

State agency executives frequently overrule administrative-law officers on questions about agency policies, creating questions about independence and fairness, says Phillip Talmadge, a former Washington Supreme Court justice.

Talmadge is the attorney for suspended administrative-law judge Patricia Petersen, and sat with her Monday as both testified to the Washington Senate Law & Justice Committee on whether the independence of hearing officers should be improved.

The committee held a work session Monday to ponder questions about the authority of hearing officers and administrative-law judges, who handle numerous appeals by individuals, groups and companies of decisions by state agencies. The committee discusion grew out of a high-profile clash between Petersen and her bosses at the Office of Insurance Commissioner.

A few weeks ago, Petersen complained that Insurance Commissioner Chief Deputy Jim Odiorne improperly pressured her on a high-profile case involving Seattle Children’s Hospital. The health care provider wants the Office of the Insurance Commissioner to force Premera Blue Cross and BridgeSpan Health to include Children’s in their provider networks, which the office has approved without Children's. Insurance Commissioner Mike Kreidler suspended Petersen for allegedly having improper contact on the issue with one of the attorneys in that case. An independent investigation into the Peterson matter is expected to be done by the end of June. She has been an administrative judge for 28 years.

Talmadge told the committee that the Insurance Commissioner's office tried to make Petersen sign a gag order regarding her paid suspension and the Children's Hospital case. She refused. But she and Talmadge decided that she would not discuss the specifics of her case with the Senate committee as a precaution, and would talk only about overarching issues about future legislation on the topic.

Talmadge said many hearing officers have their rulings overturned legally by the executives in charge of state agencies because of policy issues. After Monday's testimony, Talmadge said this practice is widespread. "It is not unique. It more typical than people suspect," he said.

Talmadge pushed the Senate committee for legislation to make all hearing officers independent of the agencies that they handle. Currently, the independent Office of Administrative Hearings handles many matters, but state agencies use their own hearing officers on many other disputes. The head officer of an agency — and those officially representing him — can overrule a hearing officer's decision. 

"If someone can influence an independent hearing officer behind the scenes, it is not due process. It's like a decision of the Washington Supreme Court being subject to the review of the chief of staff of the governor," Talmadge contended.

Petersen said that if an agency official can legally pressure an administrative-law judge, "then a central pillar of democratic society is corroded."

"There's a problem there — not just with the OIC," said Sen. Mike Padden, R-Spokane Valley and chairman of the Senate Law & Justice Committee, referring to the Office of the Commissioner. Padden is considering introducing legislation to improve the independence of all administrative-law judges and hearing officers. A bill cannot be introduced until December for the 2015 legislative session.

A few experts testified on the haziness of the boundaries between hearing officers and their parent agencies. The hodgepodge of situations facing hearing officers can make questions of propriety and pressure murky, the experts said.

Padden asked AnnaLisa Gellermann, the OIC's deputy commissioner for legal affairs: "Is there a line where you cannot go over?"

Gellermann replied: "There is. But unfortunately, that is a gray area."

Sen. Adam Kline, D-Seattle and ranking Democrat on the committee, said that the independence of hearing officers is a legitimate issue, but he alleged that the Petersen matter is being used for political reasons to try to embarrass Kreidler. Kreidler is a Democrat who is unpopular with much of the health insurance industry, but the public has elected him four times to his post.

Last legislative session, Republican senators unsuccessfully tried to replace the elected insurances commissioner's post with a board to be appointed by the four legislative caucuses. That bill was drastically changed to keep the insurance commissioner, but to also require him to run new health insurance regulations by a pair of legislative committees.


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Comments:

Posted Wed, Jun 18, 1:48 p.m. Inappropriate

"..Sen. Adam Kline, D-Seattle and ranking Democrat on the committee, said that the independence of hearing officers is a legitimate issue, but he alleged that the Petersen matter is being used for political reasons to try to embarrass Kreidler." Even the careful reader will have to wonder why replacing Kriedler, or sidelining Kriedler is germane to the issue of pressuring administrative law judges. Well they both relate to health insurance but that's pretty thin isn't it? so why is it even in this article?

kieth

Posted Fri, Jun 20, 11:51 a.m. Inappropriate

If anyone wants an example of agency bias affecting administrative hearings, look at the Dept. of Licensing. The hearing officers act as judicial officers in deciding whether a driver's license should be suspended, usually after a DUI arrest. DOL tells the hearing officers that their job is to suspend as many licenses as possible. The predictable result is a kangaroo court where the judge acts as prosecutor. Fair, independent hearings officers don't seem to keep their jobs very long.

Mr_Jones

Posted Sat, Jun 21, 12:13 p.m. Inappropriate

Regardless of the outcome of this case, one thing is certain - being an administrative Judge for 28 years, without having to be elected by the people is a problem in our State. There should be limits for how long you can sit and judge people, before you must get elected by the people, or there must be a method for people to vote whether you keep the job moving forward as other states do (IOWA as example).

Commissioners in our Superior Courts are the same. You take a career prosecutor, put him in a robe and he sits for another career as a commissioner, given extremely broad discretion, with little supervision by the elected judges, who primarily will not overturn their decisions. They them move up the food chain to the Court of Appeals and Supreme Court of Washington, where these biased, lousy ruling by people that are not elected by the people become case law - and the deal is seals - the people lose out to special interest.

We need to put limits on how long an Administrative Judge, or Commissioner can sit in their position before they move on to be an elected Judge, or get a vote of confidence/no-confidence by the people.

What we have today - is not equitable to the people.

rights

Posted Sat, Jun 21, 3:20 p.m. Inappropriate

28 years sitting in the same publicly funded chair sounds waaaay too cozy to me. I've had no first-hand experience with administrative law judges, but if they are anything like family law judges then we have a serious problem and the problem is not insufficient autonomy it is too much autonomy and discretion. Our family law officers have proven time and time and time and time again that they are simply not capable of policing themselves. The WA bar won't do it - yes attorneys do eat their young, but not often. commissioners apparently don't answer to board of judicial oversight, made up of attorneys and judges anyway. Cronyism and collusion are rampant because family court commissioners are not accountable to the public. They are not elected and cannot be voted out of office even for blatant incompetence. They enjoy the power to affect people's lives, and not for the better - rarely is being in family court a good thing. They seem to be drunk on the perks of the black robe. But year after year of watching us mere commoners stand at attention when they enter or leave their high chair and no fear of losing that power appears to be an overly powerful intoxicant - opiate apparently. They are all uniformly grumpy, condescending and rude. They take as much time and consideration for terminating parental rights or ordering you to give your assets to your ex as they do ordering from the lunch menu. Our judiciary has ruled that they (the judiciary) are not and cannot be subject to the Public Disclosure Act, which is the case for EVERY other public agency, and essentially the only way for the public to have any oversight of it's public agencies. How does that work? The courts decide that the courts are not accountable to the public? They are a public agency providing a critical public service, yet they are not elected, cannot be voted out of office and there is no way for the public to scrutinize how they do or do not do their jobs. It's a lose lose proposition. I say the issue is not more independence, but better public oversight. And why is is that we have a former supreme court justice lobbying the legislature?

Posted Mon, Jun 23, 10:53 p.m. Inappropriate

You obviously haven't had any experience, Seattledad2, because administrative law judges are not in the least like family law judges. The latter are court commissioners, part of the Superior Court environment of the state; they don't work for agencies and they are elected. This particular issue has nothing to do with your divorce/custody/support problems.

sarah90

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