The state of Indiana on July 1 launched the new Office of Administrative Law Proceedings (OALP) to serve a central hub for the state’s administrative law judges (ALJs) and agency adjudicative proceedings.
The Indiana General Assembly passed legislation in 2019 authorizing the creation of the OALP.
The new central office transitions ALJs away from direct employment or contractual relationships with state agencies. The OALP seeks to promote the independence of ALJs by ensuring that ALJs serve as neutral adjudicators in administrative proceedings, according to the office.
Twenty-seven other states centralize their ALJ corps and provide ALJs to state agencies on request. ALJs in the remaining states—and the federal government—are appointed by agency heads or hired as employees to conduct administrative proceedings at specific agencies.
Hawaii Supreme Court Associate Justice Richard W. Pollack retired from the court July 2 after reaching the mandatory retirement age of 70 years old. He served on the court for eight years after being nominated in August 2012.
Chief Justice Mark E. Recktenwald said about Pollack, “During his tenure on the Supreme Court, Justice Pollack was extraordinarily productive, authoring more than 150 opinions, all of which were meticulously researched and clearly written. He shaped the court’s jurisprudence in areas including public trust resources and the environment, criminal procedure, evidence, and public access to governmental proceedings.”
Hawaii Supreme Court justices are selected using the assisted appointment method in which the governor chooses from a list of four to six qualified candidates submitted by the judicial nominating commission. The Hawaii Senate then confirms the nominee. Judges serve ten-year terms on the court unless, like Pollack, they reach the mandatory retirement age before the end of their term.
Pollack’s replacement will be the first justice appointed by Hawaii Governor David Ige (D). Of the remaining four judges, Democratic governors appointed three and a Republican governor appointed one.
Gov. Mike Dunleavy (R) appointed Dario Borghesan to the Alaska Supreme Court on July 1, 2020. Borghesan succeeded Justice Craig Stowers, who retired on June 1, 2020. Borghesan is Dunleavy’s first nominee to the five-member supreme court.
Under Alaska law, state supreme court justices are appointed by the governor from a list of two or more nominees compiled by the Alaska Judicial Council. Newly appointed judges serve an initial term of at least three years, after which the justice must stand for retention in an uncontested yes-no election to remain on the bench. Subsequent terms last ten years. To remain on the bench, Borghesan must run for retention in 2024.
Before his appointment to the Alaska Supreme Court, Borghesan was the supervising attorney of the Alaska Department of Law’s civil appeals section. He previously served as special assistant to the attorney general (2009-2010) and assistant attorney general handling civil appeals (2010-2018). He was a law clerk to Justice Daniel Winfree on the state supreme court from 2008 to 2009.
Borghesan obtained a B.A., magna cum laude, from Amherst College in 2002. He received his J.D., magna cum laude, from the University of Michigan Law School, where he was Order of the Coif, in 2008. From 2002 to 2004, Borghesan served in the Peace Corps in Togo, Africa.
The Alaska Supreme Court is the court of last resort in Alaska. As of July 2020, three justices were appointed by a Republican governor and one justice was appointed by an independent governor.
In 2020, there have been 16 supreme court vacancies across 13 of the 29 states where replacement justices are appointed instead of elected. Of those 16 vacancies, 11 are in states where a Democratic governor appoints the replacement. Four vacancies occurred in a state where a Republican governor fills vacancies. One vacancy is in a state where the state supreme court votes to appoint the replacement.
On June 18, 2020, the Illinois Supreme Court ruled 6-1 that the need to keep police misconduct records outweighs a section in the collective bargaining agreement between the city of Chicago and the Fraternal Order of Police (FOP).
At issue was Section 8.4 of the collective bargaining agreement, the Local Records Act, and the Freedom of Information Act. In 2011 and 2012, the FOP filed two grievances against the city of Chicago when the city refused to destroy complaint records that were more than five years old. The city denied both grievances and the FOP initiated arbitration.
Section 8.4 of the collective bargaining agreement reads, “All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer.”
In his opinion, Justice Lloyd Karmeier wrote, “We find further support that Illinois public policy demands the oversight of the destruction and maintenance of government records through creation of a State Records Commission which, under the State Records Act, similarly requires state agencies to seek the approval of the State Records Commission prior to the destruction of state records.” As for the right to contract, Karmeier wrote, “While parties are generally free to make their own contracts, this court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails.”
In his dissent, Justice Thomas Kilbride wrote that the court’s decision that the collective bargaining agreement violated state law foreclosed the possibility of the city of Chicago and the FOP meeting in order to renegotiate the contract to ensure better compliance with state law. He wrote, “I believe the parties should be allowed to meet and negotiate in accordance with the arbitrator’s directive. This court could retain jurisdiction and remand for negotiations. After proceeding with negotiations, it would be warranted for this court to review the status of any agreement.”
In response to the decision, FOP President John Catanzara said, “It goes against every ounce of logic there is… the contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone.” He said he is instructing the union’s lawyers to see if there is a way to take the case to the U.S. Supreme Court.
Kentucky and New York are holding regularly scheduled primaries for state-level offices on June 23.
In Kentucky, there are primaries being held for 19 state Senate seats, all 100 state House seats, one state supreme court seat, and one state intermediate appellate court seat. A special general election is being held in District 26 of the Kentucky State Senate.
In New York, primaries are taking place in all 63 state Senate seats and all 150 state Assembly seats. State legislative special elections in New York were also originally scheduled to take place in one state Senate district and three state Assembly districts, but Gov. Andrew Cuomo (D) canceled the special elections on April 24. Those seats will remain vacant until the general election on November 3.
Leadership changes occurred this week in Maryland and Florida’s administrative law judge (ALJ) corps. The governor’s power to appoint head ALJs in these and similar states helps the executive direct and oversee state administrative activity.
Maryland Governor Larry Hogan (R) on June 9 appointed Chung Ki Pak to serve as the state’s new chief ALJ. Pak will manage the roughly 60 ALJs employed by the Maryland Office of Administrative Hearings, which provides Maryland state agencies with ALJs to hold hearings and adjudicate disputes.
In Florida, Chief ALJ John MacIver, an appointee of Governor Ron DeSantis (R), resigned on June 9 to transition to a new role as counsel for the state’s chief financial officer. DeSantis must gain approval from his cabinet to appoint MacIver’s replacement. Florida’s chief ALJ also serves as the director of the state Division of Administrative Hearings, which provides ALJs to state agencies, cities, counties, and independent government entities to adjudicate disputes.
Maryland and Florida are examples of states with centralized ALJ panels. Unlike federal ALJs, who are appointed by agency heads to hold administrative hearings at specific agencies, 27 states centralize their ALJ corps and provide ALJs to state agencies on request. The goal of the centralized ALJ structure is to protect procedural rights for citizens in administrative adjudication by ensuring that the presiding judge is independent of the agency that is a party to the case.
A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 42 states place limits on access to state courts to challenge agency actions.
For this survey, Ballotpedia set out to learn whether states limited who could challenge the outcome of agency adjudication actions in court. Most states allowed any aggrieved party to challenge agencies in court. Aggrieved parties include those involved in the case and anyone adversely affected by the agency’s decision.
Agency adjudication is a quasi-judicial process that takes place in the executive branch of the state government instead of the judicial branch. Often, the procedural protections associated with adjudication are different from those found in a traditional courtroom setting. State constitutional provisions declaring state courts open to those who suffer injuries might not apply to all actions by state agencies.
Anyone who suffers an injury or wrong to their person, property, or character because of an agency action might have the constitutional right to challenge that agency in the state court system. These constitutional provisions are not any more specific and do not explain who exactly has the standing to challenge the results of agency adjudication actions in court but imply broad access to the courts.
Understanding limits on access to state courts for judicial review of agency actions provides insight into procedural rights at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.
The procedural rights pillar refers to debates about individual due process and standing before administrative agency adjudication and enforcement actions. Procedural rights also include citizen access, agency rulemaking processes, and decisionmaking proceedings.
To learn more about Ballotpedia’s survey related to procedural rights, click here.
Want to go further? Learn more about the five pillars of the administrative state here.
On June 11, 2020, the New Mexico Supreme Court consolidated two cases and clarified requirements for marks of identification for police officers in aggravated fleeing cases.
New Mexico law considers aggravated fleeing a fourth-degree felony. The law describes aggravated fleeing as “a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle.”
The court ruled that a district court properly dismissed a charge against a man in San Juan County because the pursuing sheriff’s deputy was driving an SUV with lights behind the grille of the vehicle, but no decals, insignias, or lettering to indicate it was a law enforcement vehicle.
Justice Michael Vigil, who wrote the majority opinion, ruled that a police vehicle must be marked by “decals or other prominent and visible insignia identifying it as such.” Vigil also wrote, “Reiterating the definition of ‘mark’ as that which provides identification, we cannot conclude that lights or a siren are unique in identifying a police officer’s vehicle where emergency vehicles, tow trucks, and even civilian vehicles may be equipped with these same signaling devices.”
In a second case, the court agreed with the Court of Appeals that a man’s conviction should be reversed because the pursuing sheriff’s deputy was wearing civilian clothing rather than a uniform. The sheriff’s deputy was wearing a badge displayed on his shirt pocket and driving an unmarked SUV because he was working as an investigator for the sheriff’s office. Justice Vigil wrote that he must look at the “plain meaning” of the word uniform to rule in the case. He wrote, “while a police officer’s badge is a distinctive accessory that identifies a police officer, it is not, standing alone, a uniform.”
In a dissenting opinion, Chief Justice Judith K. Nakamura wrote that the ruling “has the pernicious effect of permitting some offenders who knowingly disobey officer commands and then flee in a manner that endangers the public to avoid criminal punishment simply because an officer’s uniform and/or vehicle were not sufficiently distinctive.”
Three West Virginia Supreme Court seats were up for nonpartisan election on June 9. The general election for the Supreme Court of Appeals of West Virginia, along with West Virginia’s statewide primary election, was originally scheduled for May 12. Governor Jim Justice (R) postponed the election in response to the coronavirus (COVID-19) pandemic.
Two incumbent justices were seeking re-election while one justice did not seek re-election. Receiving 41% of the vote, incumbent Justice Tim Armstead defeated Richard Neely and David W. Hummel Jr. Incumbent Justice John A. Hutchison defeated Lora Dyer and William Schwartz with 39.2% of the vote.
Incumbent Margaret Workman did not seek re-election. William Wooton, a former Democratic member of the West Virginia House of Delegates, won the seat with 31% of the vote. He defeated Joanna I. Tabit, Kris Raynes, and Jim Douglas. Wooton will take office in January 2021.
As of May 2020, three judges on the court were appointed by a Republican governor, while two were first elected in partisan elections, one as a Democrat, and one as a Republican.
New Mexico Supreme Court Chief Justice Judith Nakamura is retiring on August 1, 2020. Nakamura joined the court in 2015 after being nominated by Gov. Susana Martinez (R). Before that, Nakamura was a judge on the New Mexico Second Judicial District Court and the Bernalillo County Metropolitan Court. She also worked in private practice and for the State Land Office. She received her undergraduate degree from the University of New Mexico and her J.D. from the University of New Mexico School of Law.
In the event of a midterm vacancy, New Mexico Supreme Court justices are chosen by assisted gubernatorial appointment. The governor selects a nominee based on recommendations from the Supreme Court Judicial Nominating Commission. Nakamura’s replacement will be Gov. Michelle Lujan Grisham’s (D) third nominee to the five-member supreme court. The new appointee must stand for partisan election in November 2020. Justices wishing to serve additional terms must participate in uncontested retention elections; the justice must receive 57% of the vote to retain his or her seat.
The New Mexico Supreme Court is the state’s court of last resort. It currently includes the following justices:
Barbara Vigil – Elected in 2012
Michael Vigil – Elected in 2018
Judith Nakamura – Appointed by Gov. Martinez (R) in 2015
Shannon Bacon – Appointed by Gov. Lujan Grisham (D) in 2019
David Thomson – Appointed by Gov. Lujan Grisham in 2019
In 2020, there have been 15 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Ten vacancies are in states where a Democratic governor appoints the replacement. Four are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.