The Role of Non-lawyers on Administrative Tribunals: What Lay Members Think About Law, Lawyers, and Their Own Participation in Alaska's Mixed Administrative Tribunals

• Citation: Vol. 31
• Publication year: 2014

§ 31 Alaska L. Rev. 37. THE ROLE OF NON-LAWYERS ON ADMINISTRATIVE TRIBUNALS: WHAT LAY MEMBERS THINK ABOUT LAW, LAWYERS, AND THEIR OWN PARTICIPATION IN ALASKA'S MIXED ADMINISTRATIVE TRIBUNALS

Alaska Law Review
Volume 31, No. 1, June 2014
Cited: 31 Alaska L. Rev. 37

THE ROLE OF NON-LAWYERS ON ADMINISTRATIVE TRIBUNALS: WHAT LAY MEMBERS THINK ABOUT LAW, LAWYERS, AND THEIR OWN PARTICIPATION IN ALASKA'S MIXED ADMINISTRATIVE TRIBUNALS

KRISTIN KNUDSEN LATTA ^[*]

ABSTRACT

Lay participation is a conventional, but little examined, aspect of Alaska's administrative law tribunals. The legal community is sometimes suspicious of lay members' competence, leading to a trust gap between legal professionals and their lay counterparts. With the goal of bridging this divide and shedding light on participants' perspective of serving on tribunals, this Article reviews the first survey study of Alaska lay members on state adjudicatory panels. Among other things, the survey focused on tribunals' gender and ethnic diversity, members' understanding of fairness and impartiality duties, their training, and the relationship lay participants had with administrative law judges. As detailed within this Article, the survey's results offer important findings that can help the legal community understand its interaction with lay participants. The Article also considers starting points for improving involvement on tribunals by lay members, who altogether appear to take their roles seriously.

INTRODUCTION

Administrative tribunals, which often consist primarily of lay (non-lawyer) members, exercise many powers once held exclusively by courts. ^[1] This makes many lawyers uneasy. Historically, lawyers have been suspicious of lay engagement in legal decision-making by juries ^[2] and by lay judges. ^[3] Even today, the argument that non-lawyers are constitutionally unfit to interpret law continues to be made in Alaska courts. ^[4] There is no doubt that this distrust flows both ways. Lawyers are accustomed to facing hostility toward their profession, ^[5] but recent political discourse based on distrust of the legal profession illustrates how far the gap between lay citizens and lawyers has grown. ^[6]

As decision-making bodies, jurors have been attacked as incompetent, illogical, unable to follow the law, too independent, and inclined to be swayed by passion or prejudice. ^[7] However, over forty years of research demonstrates that United States juries generally function well as group decision-makers. ^[8] A jury's transience and independence-meeting once as a body in a single case and deciding facts without the judge present-is the foundation for claims that the jury strengthens democracy. ^[9] Jury service is recognized as a right that cannot be denied on the basis of race or sex. ^[10] Community participation is "critical to public confidence" in the fairness of courts. ^[11] Indeed, several recent studies of jurors demonstrate the positive impact that jury service has on subsequent civic engagement. ^[12]

Juries are not the only place that lawyers and lay citizens meet as legal decision-makers. The mixed administrative tribunal represents a singular arrangement where lawyer and lay citizen work together and share roles, instead of performing the strictly separate roles of lay jury and lawyer judge. Unlike juries, administrative tribunals are not transient bodies. Their members are appointed for years, rather than the duration of a single case. Further, tribunals generally are not meant to be representative of large communities, ^[13] like juries are. Rather, tribunal members are meant to represent a small community within a particular field, ^[14] and they are expected to learn the law of their tribunal and to develop its interpretation. Most importantly, tribunal members only have the power of independent deliberation when they are constituted as reviewing bodies. Most administrative tribunals are mixed; they share deliberation with a professional administrative law judge, who may be a voting member, an advisor, or a presenter of information.

The deliberative power of the tribunal is often shared with a professional administrative law judge (ALJ), who can be a voting member, an advisor, or a presenter of information. Professional, law-trained judges have "status, training, skill, and experience on their side," and therefore, in these mixed courts, they may disproportionately influence the tribunal's decision-making. ^[15] Thus, mixed tribunals are targets of two criticisms. First, lay tribunal members are viewed as irrational or prejudiced because the tribunals are intransient; and second, because lay members are not trained in the law, they might be dominated by more "competent" law-trained judges. Lay members in tribunals are not without their defenders, but the defense is often based on a latent contribution to the tribunal-by representing a "lay" view, they make the "professionals" do a better job of decision-making. ^[16] Even among defenders, however, the abilities of lay members are challenged. ^[17]

This Article does not review the scope of decisional authority or examine the decisions of any particular tribunal; ^[18] rather, it focuses on the implications of some of the findings of the author's anonymous survey research. Instead of speculating about the thinking of lay members, or examining theories of social behavior in hypothetical deliberations, the author asked Alaska's lay tribunal members for their thoughts. How representative of their community are they? Does the statutory mandate that a professional judge must preside over administrative hearings mean that the lay members are subservient to the professional in deliberation? Do tribunal lay members see themselves as equal or subordinate to the professional judge? What do they think about their legal role and the law? What happens when they perceive that we, members of the legal community, treat them without respect? Without diminishing the importance of lay expertise, what do lay members believe is needed to improve their participation in administrative justice?

The first part of this Article briefly introduces the reader to mixed tribunals and potential sources of internal conflict. The next part describes the survey and its respondents, including the geographic diversity of responses. Part Three of this Article describes in detail the survey's findings. Specifically, it addresses the distribution of women and minority members and perceptions of diversity among members and perceptions of tribunal fairness, findings on members' understandings of their duties of impartiality and fairness, members' desire for training in decision-making and respect for their role, barriers to active participation, and the members' understanding of their role as adjudicators and their relationship to the professional judge. In the conclusion, the Author presents suggestions for conduct and regulatory changes. An appendix of charts shows the numbers and percentages of responses to certain questions on the survey.

I. BACKGROUND

A. Alaska's Mixed Administrative Tribunals

The creation of administrative tribunals in the United States was part of a move toward "expert" decision-making during the Progressive Era. ^[19] Soon after, however, the impact of the Great Depression resulted in "a host of zealous lawyers and academics descend[ing] upon the nation's capitol with a strong belief in the inevitability and viability of centralized economic planning" in support of new regulatory measures. ^[20] Members of government boards and commissions were intended to serve as non-lawyer experts, regulating a particular industry and enforcing rules in small but complex fields, free from partisan political considerations. ^[21] Now well-established as an arm of modern government, quasi-judicial administrative agencies are even recognized in the Alaska Constitution. ^[22]

In Alaska, as in rest of the United States, mixed administrative tribunals at the state and local levels allow citizens without legal training to bring their expertise and community experience to bear on decisions affecting a wide variety of legal rights and claims. ^[23] In these tribunals, the lay members of government boards and commissions may be joined by an ALJ in the decision-making process. When administrative tribunals include a professional judge in deciding legal disputes or rights, they are mixed administrative tribunals. ^[24] Unlike administrative adjudication that is delegated to a single ALJ and reviewed by a single executive, mixed administrative tribunals provide an opportunity for direct citizen participation in justice, which has diminished in civil disputes as cases are removed from the jury's reach by transfer to administrative proceedings, arbitration, and court-sponsored mediation. ^[25]

Unlike the jury, whose members are drawn by lot from the community, membership in tribunals is based on a theory of status representation. ^[26] Status representation states that when people are chosen because they are members of a group, they will act as members of the group would act. Status representatives include members appointed from specific geographic areas, minority populations, commercial industries, or professions. These appointments are often termed "designated seats." ^[27] Status representation by "public" or "consumer" members generally does not affect the way decisions are made. ^[28] Instead, public and consumer appointments...