Agency exercise of legislative power and the role of ALJ independence in responsible agency policymaking.

Dorothy drew the curtain away and opened the strange portal in print. The moment her eyelashes touched in evident wonder, Dorothy tumbled into the mystic Kingdom of Administrative Law. (1)

The parched, clay road was one of many in the Kingdom. Dorothy sat in the road unharmed, warmed by the winter sun.

No child sprawled beneath the sun. Dorothy was now a winsome young woman with the intellect and acuity to match her rare beauty. Dorothy drew her legs to her and rose from the red clay as though Aphrodite were rising from the sea.

"Digression is the sunshine of reading, (2) but there is sun a plenty, for now," Dorothy concluded. Dorothy knew she must learn the rules of the road to travel the Kingdom.

Dorothy learned much on her own. A sacred document divides the Kingdom into three estates with separate powers. (3) The legislative estate is the only estate empowered to enact laws. The judicial estate is where blindfolded jurists in a hierarchy hold court and decipher the laws. The executive estate administers the laws.

A fourth estate once flourished in the realm, "but that was once upon a time, very long ago." (4) Before Dorothy was a moonlight twinkle in her mother's eye, the fourth estate sacrificed independent journalism to a carnivore with three heads named Advertising, Profit, and Entertainment.

"Digression, get thee behind me," Dorothy commanded, and returned to her education. Creatures named Administrative Agencies administer laws for the executive estate, in part, by agency action that may be proposed, recommended, or final.

Proposed agency action becomes final if an inhabitant of the realm does not challenge agency action within a temporal point of entry prescribed by the agency. A timely challenge may precipitate a proceeding conducted pursuant to F.S. [section] 120.57(1)(a 120.57 proceeding) that results in recommended agency action, which becomes final if the agency adopts the recommendation in a final order. If the final order modifies the recommendation, the modified recommendation becomes final agency action. Other remedies are available in Ch. 120, the Administrative Procedure Act (APA), including rule challenges authorized in F.S. [section] 120.56 (a 120.56 proceeding).

Proposed agency action is often based on agency policy. The two are often intertwined. A challenge to proposed agency action often challenges agency policy.

Agencies utter statements of policy in two forms. The first satisfies the legislative estate's definition of a rule, and the second does not. The former is either an adopted rule (5) or an unadopted rule. (6) The latter, nonrule policy, does not meet the definition of a rule and need not be adopted as a rule. (7)

An inhabitant with standing may challenge agency policy in a 120.57 proceeding, a 120.56 proceeding, or both. However, Dorothy focused her education on 120.57 proceedings.

The role of creatures who conduct 120.57 proceedings mystified Dorothy. The creatures serve in the executive estate (8) but wear tattoos lettered "ALJ," for administrative law judge, and blindfolds, as if they served in the judicial estate. Her effort to solve the mystery felt Sisyphean, if not existential.

Dorothy drew near to the first ALJ she found.

"Hello. I'm Dorothy," she offered, wrapping her long fingers around his unextended hand. The blindfolded creature had no clue Dorothy wanted to shake hands until she naively put her hand in his.

"Hello, my name is Hermes." (9) A wry smile punctuated the portion of Hermes' face below his blindfold.

"Excuse me for asking," Dorothy said in a demure voice, "but exactly what is the role of an ALJ? I mean, how can you serve in the executive estate and still be a judge? I thought judges served in the judicial estate?"

"One question at a time, please," Hermes implored. "The title of judge describes quasi-judicial duties an ALJ must perform with administrative judicial independence and administrative judicial impartiality." (10)

Dorothy grumbled, "Quasi-judicial duties and administrative judicial independence is a mouthful when I read aloud to Ginger, my Norwich Terrier. Her last name is Snaps. I name my dogs in sentences. My previous dog was a Norfolk Terrier named Bitsy Bites. Before that, I owned a Cairn Terrier named Tot-...."

Dorothy paused. She felt the glare of his invisible eyes and rejoined the lesson at hand. "Can you just say judicial duties, independence, and impartiality when you discuss the role of an ALJ in 120.57 proceedings?" Dorothy pleaded. "For convenience rather than precision?" she added, ignoring Hermes' earlier entreaty for one question at a time.

"If you are more comfortable with those words," Hermes allowed. The grimace inching across his face below his blindfold revealed his discomfort, but Hermes nevertheless set about teaching the dual-role of an ALJ in her words, not his.

"Let's begin with the title of judge," Hermes said in a formal voice. "An ALJ is an arbiter of facts and law for the resolution of disputes, as is a judge in the judicial estate." (11)

There can be little doubt that the role of the modern ... administrative law judge ... is "functionally comparable" to that of a judge.... [A]gency adjudication is currently structured so as to assure that the [ALJ] exercises independent judgment.... (12)

Hermes wagged on. "Even Miss Snaps can infer that judicial independence is not the same as impartiality. Independence is rooted in structural aspects of government that insulate the decisional process from influence by the electorate and the other estates, such as the appointment process, removal from democratization, protection of tenure and salary, and limits on the ability of other estates to change an ALJ's decision. (13)

"Impartiality is more about neutrality and personal attributes. However, structural aspects of government such as bans on ex parte communications encourage impartiality." (14)

Dorothy shuffled impatiently and thought, "Sorry I asked!"

Hermes stayed on message. "Variations between systems make generalizations dangerous. (15) In the Kingdom, however, the APA serves several legislatively intended purposes.

"The APA is a mechanism for intrabranch dispute resolution within the executive estate. (16) The APA authorizes an independent executive agency, named the Division of Administrative Hearings (DOAH), to assign an ALJ who conducts a 120.57 proceeding and recommends a resolution for a dispute between a sister, executive agency, and an inhabitant. The judicial estate may conduct an inter-branch review. (17)

"A 120.57 proceeding is more than an adjudicatory process."

We are accustomed to think that the principal use of hearings is to develop records for "adjudicatory" or "quasi-judicial" decisions. That was the limited role of administrative hearings in years past, when the "universe of administrative law was hierarchical, with the judiciary at its apex." [The current] administrative process ... recognizes that a hearing independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion. (18)

Hermes quickened the pace. "The APA does not limit the role of an ALJ to a judicial model confined to findings of fact and conclusions of law. An ALJ sits as the head of a sibling agency of DOAH, and, just as a farmer plows a field to cultivate crops, the ALJ independently plows a sibling's policy to cultivate responsible agency policymaking (RAP)."

[T]he [ALJ] called to preside because the agency head is unavailable is also charged to ... critique agency policy ... to promote [RAP].... The [ALJ] does not merely find the facts and supply the law, as would a court. The [ALJ] "independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion." (19)

"Independence is essential to weed agency policy so that RAP may thrive. Independence means the absence of dependence (20) on the parties of record, one of which is usually an agency. Either party may try to control the tilling of agency policy."

Hermes drew Dorothy nearer. "You see, Dorothy, ALJ independence and impartiality are not mutually exclusive. The parties of record are not the only parties to a 120.57 proceeding. The public interest is also a party. An ALJ who harrows agency policy does not favor a party of record who benefits from the harrowing experience. The ALJ favors the public interest served by RAP."

Hermes pressed the engagement. "RAP is not defined by statute or rule. At a minimum, however, RAP avoids agency action that is susceptible to mandatory remand in an inter-branch, judicial review. Remand is mandatory if agency action violates a constitutional or statutory provision." (21)

Hermes drew Dorothy still nearer. "The APA is not merely a mechanism to give an inhabitant a point of entry to challenge agency action. The APA is also a legislative mechanism to check agency action that goes beyond delegated legislative authority; action that exercises legislative power." (22)

Dorothy tried to redirect Hermes, but he was on a role--no, a dual-role!

Dorothy fantasized, "If I could free my hand from his, I could slip away. He's blindfolded. How would he know?"

Hermes showed no mercy to his captive. "The requirement for an ALJ to independently ensure that recommended agency action does not exercise legislative power is rooted in a structural aspect of the sacred document known as the separation of powers doctrine. The doctrine encompasses two prohibitions. No estate may encroach upon the powers of another, and no estate may delegate its power to another." (23)

"Hmm," Dorothy mused. "This is worse than being stuck in the swamp with no alligators to watch."

Hermes was ravenous. "The second prohibition is the nondelegation doctrine. The doctrine checks agency exercise of legislative power by requiring an agency to administer legislative programs pursuant to standards enacted by statute." (24)

Hermes drew Dorothy nearer still. "You see, Dorothy, DOAH is the estuary of the Kingdom, formed by the confluence of separate interests from three estates. DOAH is where the rivers of legislative interest in the separation of powers and judicial interest in due process meet the tide of executive interest in administering laws. The role of the ALJ is to independently craft a resolution which navigates turbulent waters that sometime swirl when the power of rivers meets the ocean tide."

Hermes drew Dorothy ever so nearer. Dorothy growled, "One thing isn't very clear! Should the teacher stand so near?"

"Graduation's almost here, my love. (25) You see, Dorothy, DOAH is no country for creatures to arrogate legislative power. The parties of record in a 120.57 proceeding may fail, by skill or neglect, to challenge agency policy that contravenes a statute. The failure does not empower an ALJ, acting for DOAH, an executive agency, to recommend that a sibling executive agency should exercise legislative power. Proposed, recommended, or final executive action that goes beyond a statute arrogates legislative power and violates the separation of powers doctrine."

The legislative purpose is simply to avoid any appearance of requiring a substantially affected party to initiate [a] duplicative [120.56] proceeding ... if his rule challenge is regularly presented with other grievances under 120.57, resulting in final agency action and ... judicial review. (26)

"An ALJ independently actuates the mechanism that checks agency exercise of legislative power. The ALJ ensures that recommended agency action does not violate the separation of powers doctrine by ensuring that a recommended resolution is consistent with the legislative enactment implemented.

"A 120.57 proceeding is de novo. The exact meaning of de novo is unclear. To most inhabitants, de novo means a 'do-over.'

"In a do-over, an ALJ conducts a 'trial anew' to recommend final agency action. In a do-over, an ALJ has authority to ensure that his or her recommendation does not contravene the statute implemented.

"A 120.57 proceeding is not an appellate review of agency action previously taken. Even if it were, an ALJ would have power, similar to the power of direct review held by an appellate court, to reject proposed agency action that goes beyond delegated legislative authority. (27)

"An ALJ may recommend agency action based on an adopted rule, if the rule implements, interprets, or makes specific powers and duties authorized in the enabling statute. (28) A literal conflict between a rule and a statute must be resolved in favor of the statute to preserve the validity of the rule. (29)

"Absent a literal conflict, an ALJ's interpretation of an adopted rule must not contravene a statute. Just as an ALJ construes a statute to preserve its constitutionality, so an ALJ interprets a rule to be consistent with a statute in order to preserve the constitutionality of the rule.

"A recommendation based on an unadopted rule must satisfy requirements similar to those applicable to an adopted rule. (30) An ALJ may not recommend nonrule policy that contravenes a statute. (31)

"Is that all there is?" Dorothy asked.32 Hermes exhibited shameless disappointment that his moment was over. Hermes released Dorothy's hand. Teacher and student said, "Au revoir."

Dorothy returned to the parched, clay road where her journey began. The warm winter sun embraced Dorothy as she slumbered beside the road in reverie. Dorothy recalled the child she once was, wearing orange slippers and blue hair-ribbons in the swamp, watching alligators on Saturdays in the Fall. Dorothy and the child had always enjoyed a broad margin to their life. The two lingered in that still moment under the gentle arms of oak trees and prescient redbuds foretelling the approach of Spring. They refused to sacrifice the bloom of the moment to any work, and they were the richer for it. (33)

(1) Daniel Manry, The Scarecrow in McDonald's Farm: A Fairy Tale About Administrative Law, 73 Fla. B. J. at 60 (March 1999).

(2) LAURENCE STERNE, TRISTRAM SHANDY, 22 (Book 1, Ch. 1) (1760) ("Digressions ... are the sunshine ... of reading....").

(3) Fla. CONST., art. II, [section] 3.

(4) Charles Strouse and Lee Adams, Once Upon a Time, ALL AMERICAN (1962) ("Once upon a time a girl with moonlight in her eyes; Put her hand in mine and said she loved me so; But that was once upon a time very long ago.").

(5) Fla. Stat. [sub section] 120.54; 120.56(3)(2007).

(6) Fla. Stat. [sub section] 120.54, 120.56(4); 120.57(1)(e) (2007).

(7) Fla. Stat. [section] 120.52(15). A statement that is not generally applicable, or one that fits within an express exception, is not a rule.

(8) Fla. Stat. [section] 120.65. See also Patricia Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L. rev., 965, 967, 970, 1017 (Winter 1986).

(9) Hermes is the Greek messenger god.

(10) James E. Moliterno, The Administrative Judiciary's Independence Myth, 41 Wake FOREST L. REV. 1191 (2006).

(11) Id.

(12) Butz v. Economou, 438 U.S. 478, 513 (1978).

(13) Moliterno, The Administrative Judiciary's Independence Myth, 41 WAKE FOREST L. REV. at 1200. See also Dore, Access to Florida Administrative Proceedings, 13 Fla. ST. U.L. REV. at 1016-1017.

(14) Moliterno, The Administrative Judiciary's Independence Myth, 41 WAKE FOREST L. REV. at 1196.

(15) Id.

(16) Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L. rev. at 1017.

(17) Fla. Stat. [section] 120.68(2007).

(18) Department of General Services v. Willis, 344 So. 2d 580, 591-592 (Fla. 1st D.C.A. 1977) (cited for different issue in Clemons v. State Risk Mgmt. Trust Fund, 870 So. 2d 881, 884 (Fla. 1st D.C.A. 2004) (Benton, J., concurring)) (citations omitted).

(19) McDonald v. Department of Banking and Finance, 346 So. 2d 569, 580-583 (Fla. 1st D.C.A. 1977).

(20) Moliterno, The Administrative Judiciary's Independence Myth, 41 WAKE FOREST L. rev. at 1202.

(21) Fla. Stat. [section] 120.68(7)(e)4(2007).

(22) Fla. Stat. [section] 120.52(8) (2007). Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L. rev. at 982, 1017.

(23) Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 264-266 (Fla. 1991).

(24) Id. See also [section] 120.52(8)(2007).

(25) Sammy Cahn and Gene DePaul, Teach Me Tonight (1953) ("One thing isn't very clear, my love; Should the teacher stand so near, my love; Graduation's almost here, my love; Teach me tonight.")

(26) Willis, 344 So. 2d at 591-592. Appropriate challenge matures all agency action into an order impressed with characteristics of Fla. Stat. [section] 120.57. McDonald, 346 So. 2d at 577. An agency must follow like cases involving similar facts. Gessler v. Department of Business and Professional Regulation, 627 So. 2d 501, 504 (Fla. 4th D.C.A. 1993).

(27) Willette v. Air Products and Bassett and Department of Labor and Employment Security, Division of Workers' Compensation, 700 So. 2d 397(Fla. 1st D.C.A. 1997).

(28) Fla. Stat. [section] 120.52(8); Chiles, 589 So. 2d at 264-266.

(29) Willette, 700 So. 2d at 399.

(30) Fla. Stat. [sub section] 120.54, 120.56(4); 120.57(1)(e) (2007).

(31) An agency may interpret, but never alter statutes. Carver v. State of Florida, Division of Retirement, 848 So. 2d 1203, 1206 (Fla. 1st D.C.A. 2003).

(32) Jerry Leiber and Mike Stoller, Is That All There Is? (1969) ("Is that all there is, is that all there is?; If that's all there is, my friends, then let's keep dancing.").

(33) H.D. THOREAU, WALDEN 175 (1854) ("There were times when I could not afford to sacrifice the bloom of the present moment to any work ... I love a broad margin to my life. Sometimes ... I sat in my sunny doorway from sunrise till noon, rapt in revery (sic), amidst the pines and hickories and sumachs, in undisturbed solitude and stillness ... until by the sun falling in at my west window ... I was reminded of the lapse of time. I grew in those seasons like corn in the night, and they were far better than any work of the hands would have been. They were not time subtracted from my life, but so much over and above my usual allowance.").

Daniel Manry is an administrative law judge. He received his B.S. and J.D. in 1968 and 1971, respectively, from the University of Florida and his Master of Laws in taxation from Georgetown University in 1983. He is a former assistant attorney general in the tax section of the Department of Legal Affairs; a bureau chief for the Department of Revenue; an associate with the law firm of Holland & Knight; and a Reginald Heber Smith Community Lawyer. Judge Manry has served as a legal editor for the Tax Management Portfolios for both BNA and S&M and is licensed to practice in Florida, Colorado, and the District of Columbia.

The author thanks several of his peers who reviewed drafts of this article: Robert S. Cohen, Harry L. Hooper, Scott Boyd, Robert Downie II, and Debby Kearney. The views in this article are the author's and do not necessarily reflect their views.

This column is submitted on behalf of the Administrative Law Section, James A. Bertron, Jr., chair, and Deborah K. Kearney, editor.