752 Disqualification of Administrative Law Judge

Decision makers in state administrative hearings enjoy a presumption of honesty and integrity. A party seeking to prove bias or an impermissibly high risk of bias bears a heavy burden to overcome that presumption. In order to disqualify an administrative law judge in an ERD proceeding for bias, a party must provide and establish an actual reason, documented in a supporting affidavit, for the judge's disqualification. The Complainant in this case never filed a timely and sufficient affidavit asserting personal bias on the part of the administrative law judge or any other reason for disqualification. The Complainant simply based her accusation of bias on the fact that she did not get the result she wanted in the hearing, despite presenting, in her opinion, plenty of evidence for her case. That is not a sufficient basis for a finding of bias. Bates v. Care Partners Assisted Living, LLC (LIRC, 09/27/19).

The Complainant believed the administrative law judge was biased against him and asked her to recuse herself from his case, but the administrative law judge declined to do so. The Complainant’s remedy under the circumstances was to appear at the hearing and preserve his objections on appeal. By failing to appear at the hearing the Complainant waived his opportunity to present his case. Ghanem v. Univ. of Wisconsin-Madison Office of Admin. Legal Servs. (LIRC, 01/30/18).

The Commission continues to take the view that a Complainant who disagrees with rulings of an ALJ is required to proceed with the hearing in order to preserve his right to review of those rulings on appeal, and that if the Complainant instead refuses to proceed with the hearing due to his objections to the rulings, and his complaint is dismissed as a result, he is deemed to have waived his objections to those rulings. This rule is important to the integrity of the system in place for litigation, appeal and review of Equal Rights cases, because it secures the non-appealability of interlocutory decisions of ALJs. Mullins v. Wauwatosa Sch. Dist. (LIRC, 05/17/13).

An ALJ’s procedure of insisting that offers of proof be made by submission in writing after the hearing created an unfortunate appearance of arbitrariness. A judge should actually have a basis for concluding that evidence should not be allowed. If the ALJ does not know what the evidence is, it can appear that he does not have such a basis. Burton v. United Gov’t Serv. (LIRC, 03/02/10).

Due process is violated if a decision-maker is not fair or impartial. There does not need to be a showing of actual bias by a decision-maker in order to show a violation of due process. Circumstances which lead to a high probability of bias may be sufficient to establish a violation of due process, even though no actual bias is revealed in the record. Burton v. United Gov’t Serv. (LIRC, 03/02/10).

There is a presumption of honesty and integrity on the part of Administrative Law Judges. However, this presumption is not conclusive. A showing of special facts and circumstances may demonstrate that the risk of unfairness in a particular case is intolerably high. This may involve showing that the adjudicator had become psychologically wedded to a pre-determined disposition of the case. Determining whether an administrative law judge has prejudged a matter requires an examination of the facts of the individual case. There was an appearance of lack of impartiality by the Administrative Law Judge in this case. The Administrative Law Judge had a personal connection with counsel for the Complainant. The Administrative Law Judge also improperly received into evidence the decision of another Administrative Law Judge which had been previously set aside by the Labor and Industry Review Commission. The Administrative Law Judge’s comment that he was deferring to the first ALJ’s decision “out of fairness to a colleague” made it appear that the appellate process had been ignored. This created an intolerably high risk of unfairness in this particular case. The ALJ’s rulings excluding evidence also created a significant appearance of unfairness. Burton v. United Gov’t Serv. (LIRC, 03/02/10).

Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. In this case, the Administrative Law Judge may have erred in excluding a document that the Complainant wished to enter into evidence. However, there was no reason to believe that the Administrative Law Judge held any bias against the Complainant. The Administrative Law Judge attempted to assist the Complainant at the hearing by asking him questions in an effort to help him to present his case. Williams v. Salvation Army (LIRC, 10/19/07).

There is a presumption of honesty and integrity on the part of those persons performing administrative adjudicatory functions. Anyone alleging bias by an Administrative Law Judge bears a heavy burden of overcoming this presumption. Jackson v. USF Holland (LIRC, 11/17/06).

Decision-makers in state administrative proceedings enjoy a high presumption of honesty and integrity. A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. In this case, the Complainant asserted, among other things, that the Administrative Law Judge’s knowledge that the Complainant had filed a grievance against her with the Office of Lawyer Regulation (OLR) relating to her handling of this matter would necessarily cause her to be biased against the Complainant. However, permitting a litigant to effect the disqualification of an Administrative Law Judge who has ruled against her by simply filing a grievance against the ALJ with the OLR would violate the integrity of the administrative process. In the absence of other indicia of a cognizable personal or financial interest, or of conduct evidencing a lack of objectivity (which was not present here) the existence of an OLR grievance would not justify recusal of an Administrative Law Judge under the circumstances presented in this case. Casetta v. Zales Jewelers (LIRC, 06/14/05).

In order to disqualify an Administrative Law Judge in a proceeding before the Equal Rights Division, a party must provide and establish an actual reason for the judge’s disqualification. Both sec. DWD 218.16, Wis. Adm. Code, and sec. 227.46(6), Stats., provide that the party seeking the disqualification must file a timely and sufficient affidavit asserting personal bias or other reason for disqualification of the ALJ. The Complainant in this case failed to file such an affidavit. She simply made a written request for the substitution of the Administrative Law Judge without stating any reason for such a request. The Complainant did argue to the Administrative Law Judge that sec. 801.58, Stats., which allows a party a one-time ability to substitute a presiding Circuit Court judge without demonstrating a reason for such a request, was applicable to the hearing process in the Equal Rights Division. However, that statute cannot be applicable because the procedure is in direct conflict with the Division’s administrative rules and Ch. 227, Stats., which govern hearing procedures before the Division. Lenz v. Humana Ins. (LIRC, 04/28/05).

The Complainant contended that, because the Respondent was under contract with the Wisconsin Department of Corrections, a state agency, the Administrative Law Judge, as a state employee, had a conflict of interest. However, the Administrative Law Judge was not shown to have any personal stake in the outcome of this litigation, and his status as a state employee was insufficient alone to support a conclusion of bias or an appearance of bias. The potential pecuniary impact of the outcome of litigation such as this on any individual state employee would be too speculative and de minimis to constitute either a cognizable conflict or an appearance of a conflict of interest. Carbage v. Genesis Behavior Serv. (LIRC, 04/15/05).

The Labor and Industry Review Commission conducts a de novo review, acting as an original fact-finder and reviewer of the Administrative Law Judge’s decision. As a result, in the absence of some indication that an Administrative Law Judge’s conduct of the hearing improperly influenced the creation of the record in some way, remand for hearing before a different Administrative Law Judge would not be necessary or appropriate, even if some bias or appearance of bias was present in the case below. Carbage v. Genesis Behavior Serv. (LIRC, 04/15/05).

An Administrative Law Judge should attempt to avoid creating the appearance that he has prejudged the matter before him. Lee & Stark v. Fitzpatrick Law Office (LIRC, 08/12/03).

A party’s disagreement with the Administrative Law Judge’s rulings and decision is not a sufficient basis upon which to disqualify an Administrative Law Judge. Bedynek-Stumm v. City of Madison (LIRC, 06/27/03).

A party who fails to persuade an Administrative Law Judge to remove himself must proceed to hearing with that Administrative Law Judge, and then raise the Administrative Law Judge’s failure to remove himself as grounds for appeal in the event of an unfavorable decision. If a party refuses to proceed with the hearing and the complaint is dismissed for that reason, the claim that the denial of the substitution request was made in error must be considered to have been abandoned. Clemons v. Opportunities Industrialization Ctr. of Greater Milwaukee (LIRC, 02/14/03).

A party who believes it is not getting a fair hearing should nonetheless attempt to put in its best case while preserving its objections on the record should it become necessary to file an appeal. Where the Complainant abandoned the hearing without putting in his entire case, his procedural objections were waived. Clemons v. Opportunities Industrialization Ctr. of Greater Milwaukee (LIRC, 02/14/03).

A minimal rudiment of due process is a fair and impartial decision-maker. There is, however, a presumption of honesty and integrity on the part of those persons performing administrative adjudicatory functions, and any challenger bears a heavy burden of overcoming this presumption. The challenger must show “special facts and circumstances to demonstrate that the risk of unfairness is intolerably high.” Odya v. Captain Install, Inc. (LIRC, 05/19/00).

The Labor and Industry Review Commission is generally unpersuaded by allegations of bias on the part of the ALJ which are raised by a party only after the hearing has resulted in a decision adverse to that party. Eliason v. County Mkt. (LIRC, 11/30/93).

A party who fails to persuade an Administrative Law Judge to remove himself must proceed to hearing and may later raise the ALJ’s failure to remove himself as grounds for appeal in the event of an unfavorable decision. If the party refuses to proceed with the hearing and the complaint is for that reason dismissed, the claim that the denial of the substitution request was error is abandoned. Young v. Valley Pkg. Indus. (LIRC, 04/27/92).

Due process requires that a hearing examiner be fair and impartial. Actual bias or unfairness need not be shown. The test to be applied is whether the circumstances are such that the risk of partiality or unfairness on the part of the examiner is too high to be constitutionally tolerable. Local 322, Allied Indus. Workers of Am. v. Johnson Controls, Inc. (LIRC, 03/30/92).

The timing of the Complainant’s affidavit for disqualification of the examiner suggested that the Complainant’s motion was motivated by disagreement with the examiner's ruling rather than by some bias on the part of the examiner. Generally, a litigant should not be able to accept a judge initially as satisfactory and then subsequently, during the course of the litigation, seek to disqualify him because the litigant has gained an impression from the rulings of the court that the court's attitude towards his position is unfavorable. Asadi v. UW-Platteville (Wis. Pers. Comm’n, 01/24/92).

A litigant is entitled to a fair and impartial judge, but is not entitled to pick his judge. Asadi v. UW-Platteville (Wis. Pers. Comm’n, 01/24/92).

The Complainant waived her right to contend that the Administrative Law Judge was biased where she did not raise that issue by filing an affidavit of personal bias or disqualification with the Administrative Law Judge prior to the decision being issued. Alexander v. Aldridge, Inc. (LIRC, 10/21/91), aff’d, Milwaukee Co. Cir. Ct., 01/27/93.

In determining whether the chairperson of the Personnel Commission should be disqualified from hearing a case, the Personnel Commission looked to the general rule governing disqualification of a quasi-judicial administrative official as set forth in Am Jur 2d Administrative Law 64. The test is whether the administrative officer has a personal or pecuniary interest, or whether he is related to an interested person. Cozzens-Ellis v. UW-Madison (Wis. Pers. Comm'n, 02/26/91).

An Administrative Law Judge should recuse himself if he determines that he cannot be impartial in a matter or if his impartiality could reasonably be questioned by others because of an appearance of bias on his part. Phillips v. Milwaukee County Med. Complex (LIRC, 09/27/89).

Where the Administrative Law Judge: (1) asked the Complainant at the commencement of the hearing whether she carried a gun; and (2) made negative comments about the quality of the Complainant’s representation, there was an appearance of bias serious enough to warrant disqualification. Phillips v. Milwaukee County Med. Complex (LIRC, 09/27/89).

Where an Administrative Law Judge has been found to have engaged in bias, LIRC will engage in a completely independent reevaluation of all of the evidence and made a de novo determination of all the issues in the case. Phillips v. Milwaukee County Med. Complex (LIRC, 09/27/89).

A mere showing of antagonism or a strained relationship between counsel and the Administrative Law Judge is not a sufficient basis to require the disqualification of the Administrative Law Judge. Phillips v. Milwaukee County Med. Complex (LIRC, 09/27/89).

The administrative rule concerning disqualification of Administrative Law Judges requires the filing of a written affidavit setting forth the basis for requesting disqualification. Even if an unsworn oral request is treated as adequate, it must still be made in a timely fashion. Young v. Pic ’n Save Warehouse Foods (LIRC, 06/12/86).

The fact of an examiner’s marriage to the investigator who issued the initial determination of no probable cause is not grounds for reversal where there is no evidence or allegation of impartiality, or any reason to believe that another examiner would have decided the case differently. However, the Commission noted that the examiner should have disqualified himself. Hammes v. Rainfair, Inc. (LIRC, 09/28/84).

The test of an examiner’s impartiality is whether the particular circumstances of a given case are such that the risk of partiality or unfairness by the examiner is too high to be constitutionally tolerable. The standard applicable to an examiner presiding at an administrative hearing is the same as that which applies to a Circuit Court Judge. The existence of a strained relationship between the examiner and a party's attorney was not sufficient to require the examiner's disqualification, although she had exhibited a great deal of hostility toward counsel in the presence of his client. Kane v. LIRC (Bellin Mem’l Hosp.) (Brown Co. Cir. Ct., 02/18/83).