Stress n. A mentally or emotionally disruptive or disquieting influence; distress. - tr. v.
stressed, stressing, stresses. To subject to pressure or strain; to distress. (The American Heritage Dictionary).
Everything in the Tribunal setting can cause stress or be stressful. The very act of performing the decisional process is stressful. An Administrative Law Judge (herein after referred to as ALJ), no matter what country they may be in, must rule in one parties favor and against another. Decisions are based on the credibility of witnesses and the weight of the evidence. In other words, you believe one person and not the other. On a personal level, this is often stressful for the decision maker.
The magnitude of the cases handled in the Tribunal or Administrative Hearing setting and the number of cases assigned can also have a stressful effect on the ALJ. Time limitations and anxious parties and attorneys can increase these pressures. Along with all of this, the ALJ does not need the added stress of threatened or actual litigation against the ALJ personally.
My observations, experience and the examples that follow in this paper are based on my legal practice in the United States and particularly in the State of Colorado. Although different than the legal system in Canada, I think these examples and some of the case law and statutes from the U.S. and Colorado are relevant to Canadian Tribunals and Administrative Law Judges. Even though the two legal systems are different, the evolution of both systems has had some similarities and sometimes follow each other. Canadian ALJ's may gain some insight from what the ALJ's in Colorado may have experienced.
As First Assistant Attorney General for the State of Colorado for the past 13 years I have handled several suits against ALJ's in state and federal courts. The State of Colorado was self-insured for liability purposes and the defense of state officials and employees (including ALJ's) was handled by the Tort Litigation Section of the Attorney General's Office of which I was one of the trial lawyers and mid-level supervisor. The types of suits that were brought against ALJ's were usually brought for violations of a parties constitutional rights under the United States Constitution. Parties that were ruled against by an ALJ would then bring a separate suit against the ALJ for a "due process" or "equal protection" violation. These claims are derived from various amendments to the United States Constitution.
These suits would be brought against the ALJ personally in most cases. Although the ALJ was always provided with a defense (the State of Colorado paid any legal fees and expenses to defend the ALJ), the question of indemnification (whether and who would pay for any judgement or settlement) was always a question left for the end of the litigation. The mere fact that an ALJ was sued personally for performing what he or she saw as their job was usually stressful enough to the individual. However, add to that the uncertainty of whom would ultimately be responsible for a money judgement or settlement and the stress would usually increase exponentially.
The uncertainty about indemnification is a function of government and budget considerations. In Colorado, the state adopted the Colorado Governmental Immunity Act §24-10-101 through 120, Colorado Revised Statutes. This law provides when a governmental official or employee may be sued in state court and what claims may be brought against them. It provides what amounts of money may be recovered against them. It also provides when the governmental entity will have to pay a judgement or settlement and when the individual may be personally liable. This law gives the governmental entity control over when indemnification will be provided and when it will not.
Additionally, since the United States has essentially two separate legal systems (federal courts, federal laws and the federal constitution vs. state courts, state laws and a state constitution), a state ALJ may be sued in either state or federal court. Most claims against a state ALJ would be brought in federal court to avoid state immunity laws because of the Supremacy Clause of the United States Constitution, which says that federal law is supreme over state laws. Thus, a suit for violations of a parties federal constitutional rights brought under 42 United States Code § 1983 would not be subject to the limitations on the type of actions or the amounts that can be recovered set out in the Colorado Governmental Immunity Act.
Suddenly, a state ALJ is in a non-familiar forum when suit is filed in federal court. The personal stress level may be increased. The uncertainty of the process may also lead to an increase in the stress. The ALJ, who is usually a lawyer, wonders what kind of defense he or she will be provided. Will their interests be represented or just that of the government who is paying for the defense? Are their personal assets at risk? All of this may lead to increased personal stress in the workplace.
Generally speaking, in the United States a judge is absolutely immune from any civil liability for his or her judicial acts. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L.Ed. 2d 396 (1982). The exceptions are few, with liability for administrative functions not related to the judicial function being the only real one. This doctrine of absolute judicial immunity has been extended to ALJ's under the doctrine of "quasi-judicial immunity". Butz v. Economou, 435 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). In other words, in almost all situations, an ALJ would be immune from suit for any act that arose out of their judicial function.
This does not prevent an ALJ from being sued in the United States, it only means that the suit will most likely be dismissed at some point during the litigation process. The mere fact that someone is sued and must deal with the litigation process as well as deal with all of the other requirements of their job can lead to increased stress. Add to that the fear that personal assets may be at risk and the stresses increase.
Although the law or the process may not exactly be the same in Canada as in the United States, Canadian Tribunal Judges may experience the same anxiety if involved in litigation. Even though Canadian constitutional law and civil rights laws are different than in the United States, these general principals may still apply, at least to create stress in the work place. Additionally, since the law is always evolving, these legal principals may find their way into Canadian law at some point.
The mere fact an individual is involved in litigation is a personal stressor. Even if the person is a lawyer, being a party to litigation changes their perspective. The discovery phase of litigation is time consuming and can be stressful. No matter how many times you have taken a deposition or put on witness evidence or sat as a judge, it is a new experience when you are the deponent or witness. There is a new anxiety level that goes with being involved as a party. The stress level can go up or down depending on how well one relates to their lawyer. Lawyers or ALJ's do not always make the best clients. A good working relationship with your lawyer is essential and can reduce the personal stress level.
A new and rather unusual method to strike back at ALJ's or judges who ruled against people has been tried recently in Colorado and elsewhere. Disgruntled parties have placed liens on the real property of judges or other government officials with whom they disagreed. These "false liens" would usually be placed on the real property seripticiously and may not be discovered until the person went to sell the property or borrow against it. Then the lien would show up and would have to be dealt with legally, usually at the personal expense of the judge, ALJ or other official. The stresses that can result from this situation are obvious.
In response to these tactics, several laws were passed in the State of Colorado making it a crime to record "false liens" on the property of another and also making it easier to remove these liens. § 18-5-114 Colorado Revised Statutes; § 38-35-109 (3) and §38-35-201, 202, 203 and 204 Colorado Revised Statutes. (Copies are attached as Appendix A). An ALJ may still be left with the prospect of prosecuting a lawsuit for slander of title or some other theory in order to clear the title to his or her property or to collect for any damages he or she may have suffered as a result of the false lien being filed against their property. During the pendency of any such action, the credit rating of the ALJ may be damaged. Once again, causing potential stresses in their life.
In order to deal with some of these matters before they turn into personal stressors, the ALJ must recognize the potential for their occurrence. Once that is done there are several proactive steps that can be done. First of all, an opinion may be requested from the governmental entity you work for on the issue of coverage. A request for an opinion about coverage should include both defense and indemnification issues. Although a governmental entity may not be willing to opine without an actual lawsuit and fact pattern on which to base a decision, at least you may know with more certainty where you stand with regard to coverage. You will be better able to deal with a situation if you have more information before the stressful situation occurs.
As far as false lien filing or whatever other strategy disgruntled parties may invent to harass an ALJ, consider pre-emptive statutory action. Consider asking your lawmakers at the local, regional or national level to consider legislation that will protect officials from harassment of these types. These laws can take the form of criminal penalties, civil remedies or administrative actions to prevent the legal harassment or to undo the harm without cost to the official.
Although nothing can guaranty that an ALJ will not be subjected to these kinds of stress in their job, the fact that an objective and independent judiciary is necessary to the fair and impartial administration of societies important issues, will lead to the protection of a Judge or Tribunal from most of these types of influence. Doctrines of judicial and quasi-judicial immunity will lead to protection of the ALJ in most situations. Although the stress can not be totally eliminated, it should not be allowed to affect the way in which an individual performs their duties for the Tribunal. A professional should always act professionally, no matter what the other parties are doing.
Government, by its very nature is tenuous. Political parties, ideologies and politicians come into power and leave with regularity. Government employment can be just as tenuous. Although the civil servant may have some employment protection, an appointed official does not. An ALJ may be turned out of his position if the party that appointed him or her is turned out.
Even if the ALJ's employment is not terminated, new regulations, procedures or rules may be implemented by the new ruling party or elected official, which would make continued employment untenable. (See Appendix B, a recent newspaper article about ALJ's leaving their jobs in Colorado because of a change in administrations, which led to changes in policies). The result is the same. Loss of employment is one of the "big three" personal stressors along with loss of a loved one and the breakup of a significant relationship.
Since change is inevitable in the political environment, it is important to recognize the possibility of job change now and be prepared for that possibility. The person who has the most options available to them when the need to change jobs arises is the one who will have the least amount of stress in their life. Therefore it is wise to always create as many employment options as you can, even while employed in a job you enjoy.
Networking in the legal community or with other governmental job opportunities is one effective means to accomplish this. Another way is to cultivate employment opportunities in other fields. One constraint on this is avoiding the appearance of bias or impropriety when attempting to obtain employment in an industry that you regulate or make decisions regarding.
Stress is a part of modern life. It cannot be eliminated. However, judicious planning and preparation can reduce it. If a problem has been anticipated and planned for, the personal stress it can cause has already been reduced. Whether that is in the litigation arena or in employment.