INTRODUCTION
I am indebted to a colleague for bringing the following entry in the Labor and Employment Section of the ABA (American Bar Association) Journal to my attention.
The url link below will take you to the ABA Journal and a January 26 report on a U.S. judge’s decision rejecting the argument of an association of administrative law judges that the imposition of a penalty-enforced, annual decision “target” for each administrative law judge of 500-700 decisions amounts to a quota and is incompatible with adjudicator independence.
The decision was written by Judge Richard Posner of the U.S. 7th Circuit Court of Appeals.
In rejecting the argument, the judge does in fact explicitly equate U.S. administrative law judges to “workers on a a poultry processing assembly line”, workers who have no legal right to complain if the assembly line is speeded up. (Emphasis added.) The link is:
THE QUOTA ISSUE
The issue is the rule-of-law implications of setting and enforcing production quotas on the work of tribunal adjudicators. The chicken pluckers case is a timely reminder of the importance of the quota issue. It is timely from a Canadian perspective because in this era of bludgeoned tribunal budgets and out-of-control tribunal backlogs, we have to expect restrictive adjudicative quotas to become an ever-more enticing strategy for governments and tribunal chairs in the Canadian administrative justice system – perhaps the next contribution to the evolving Ignis Fatuus syndrome.
The first question is whether the rule of law in the administrative justice system permits government rationing of adjudicative hearing time and decision-making time. The administrative law judges association argued before Judge Posner that the enforceable time-quota was incompatible with the principle of adjudicator independence. But in a Canadian context it seems to me the better argument would be that the quota is incompatible with our fair-hearing principles of natural justice.
Time quotas are, arguably, fettering, fettering in the sense of preventing decision-makers from exercising their own judgment as to the time a fair hearing requires in a particular case, or the time it takes to give a particular issue the consideration it actually requires, or to write the reasons for the decision they have reached in that case. Intuitively, quotas seem to be aberrant in rule of law terms.
But in the institutional setting of an adjudicative tribunal, the rule of law cannot be seen to rule out institutional time standards altogether. It is the tribunal that is responsible for the adjudication of applicants’ claims, and it is the tribunal, particularly the tribunal chair, that is responsible for preventing unreasonable delays in the completion of hearings and the delivery of decisions – for ensuring that justice is not denied or unfairly postponed because of unjustified delays, delays caused by indolent, inattentive, incompetent or disorganized tribunal adjudicators.
Thus any tribunal must have institutional expectations, expectations as to the number of decisions an adjudicator may be fairly expected to issue each year, expectations regarding average hearing times, and average decision-writing times, expectations against which the performance of each adjudicator may be fairly judged.
So what are the rule-of-law-compliant principles and considerations that ought to govern the process by which adjudication time standards are set and enforced? It is a subject that is in need of discussion.
Time standards should not be set by or require the approval of the government; they must be established by the tribunal. otherwise the time standards would constitute a breach of the administration component of the Valente principles of judicial independence.
In our administrative justice environment where the tribunal managers are dependent on and closely integrated with governments and are under intense pressure from those governments to solve the politically embarrassing backlog problems without a realistic budget, there is a great danger that in the process of determining adjudication time standards, the managers’ felt need to be seen to be maximizing production will override considerations of fairness.
So it is a question of managers identifying time standards that parties and their counsel recognize as reasonably compatible with the requirements of a fair hearing.
In Judge Posner’s judgment, it was the rationing of time that was in issue and allowed. But contemplating the subject of “quotas” also raises the spectre of quotas – perhaps, only tacit – on the substance of decisions; perhaps implicitly acknowledged limits on the proportion of decisions that a tribunal feels its adjudicators may safely allow to be decisions that go against the government’s interests.
And, since adjudicators are dependent for their careers on a government periodically exercising its arbitrary re-appointment discretion in their favour, it is reasonable to expect that some proportion of tribunal adjudicators will be consciously or sub-consciously setting their own quotas on the proportion of their decisions that they feel can be safely decided against the government.
I have in mind something like the experience in the labour grievance-arbitration field where the success of a labour arbitrator’s ongoing business depends on both employers and unions continuing to jointly consent to his or her appointment in new cases. That known dependency has led to some labour arbitrators being suspected of what my generation used to call daisy-picking” – I love you, I love you not – i.e., one for the union, two for the employer, two for the union, one for … .
And, of course, in the administrative justice system, as in the labour relations world, it is well-known that people do keep score. Tribunal chairs, the government, the private bar all want to know what proportion of an adjudicator’s decisions typically run contrary to their interests. Is there any doubt, then, that adjudicators will be keeping their own score – that they will know, by and large, whenever the proportion of their decisions that favours applicants begins to veer into territory that is dangerous to their adjudicative careers?
And, eventually, we and our courts must expect to be asked: are our tribunal adjudicators assembly-line workers or judges?
RE