Ford v. North Carolina Department of Environment, Health, & Natural Resources

WELLS, Judge. The Department assigns error to the trial court’s findings and conclusion that the Final Agency Decision did not state specific reasons for not adopting the ALJ’s conclusions of law and recommended decision. The Department further assigns as error the trial court’s conclusion of law that further judicial review pursuant to G.S. § 150B-51(b) was not required because it failed to state specific reasons why it did not adopt the ALJ’s recommended decision. This case presents a troubling question of legislative policy and intent in the area of administrative law. Prior to 1985, it was the usual practice for administrative agencies of state government to hear and determine their own contested cases. Our General *196 Assembly, after careful study and discussion, determined that the system needed change. There is no better way to put it than to go directly to the statutory enactments which implemented a new approach to the resolution of contested cases found in the pertinent sections of Article 60 of Chapter 7A of our General Statutes: Article 60 Office of Administrative Hearings § 7A-750. Creation; status; purpose. There is created an Office of Administrative Hearings. The Office of Administrative Hearings is an independent, quasi-judicial agency under Article III, Sec. 11 of the Constitution and, in accordance with Article IV, Sec. 3 of the Constitution, has such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purpose for which it is created. The Office of Administrative Hearings is established to provide a source of independent hearing officers to preside in administrative cases and thereby prevent the commingling of legislative, executive, and judicial functions in the administrative process. It shall also maintain dockets and records of contested cases and shall codify and publish all administrative rules. § 7A-751. Agency head; powers and duties. The head of the Office of Administrative Hearings is the Chief Administrative Law Judge. He shall serve as Director and have the powers and duties conferred on him by this Chapter and the Constitution and the laws of this State. . . . § 7A-752. Chief Administrative Law Judge; appointments; vacancy. The Chief Administrative Law Judge of the Office of Administrative Hearings shall be appointed by the Chief Justice for a term of office of four years. . . . The Chief Administrative Law Judge shall designate one administrative law judge as senior administrative law judge. The senior administrative law judge may perform the duties of Chief Administrative Law Judge if the Chief *197 Administrative Law Judge is absent or unable to serve temporarily for any reason. § 7A-753. Additional administrative law judges; appointments; specialization. The Chief Administrative Law Judge shall appoint additional administrative law judges to serve in the Office of Administrative Hearings in such numbers as the General Assembly provides. No person shall be appointed or designated an administrative law judge except as provided in this Article. The Chief Administrative Law Judge may designate certain administrative law judges as having the experience and expertise to preside at specific types of contested cases and assign only these designated administrative law judges to preside at those cases. § 7A-754. Qualifications; standards of conduct; removal. Only persons duly authorized to practice law in the General Court of Justice shall be eligible for appointment as the Director and chief administrative law judge or as an administrative law judge in the Office of Administrative Hearings. Neither the chief administrative law judge nor any administrative law judge may engage in the private practice of law as defined in G.S. 84-2.1 while in office; violation of this provision shall be grounds for removal. Having thus provided for the establishment of this “independent” scheme of hearing and determining contested cases, the Legislature amended the Administrative Procedure Code to reflect and emphasize its policy set out in Chapter 7A. We turn to those pertinent provisions of Chapter 150B to make that point. In summary, under the new method of hearing and determining contested cases, as found in G.S. § 150B, sections 24 through 33, ALJs have been given many of the powers and duties generally regarded as necessary to the independent function of our courts of justice. We now turn to the manner in which the Legislature has emphasized the primary function of ALJs to hear and determine contested cases. *198 § 150B-34. Recommended decision or order of administrative law judge. (a) Except as provided in G.S. 150B-36(c), in each contested case the administrative law judge shall make a recommended decision or order that contains findings of fact and conclusions of law. Further emphasizing the decision-making role of ALJs, we refer to the pertinent contents of G.S. § 150B-36(b): A final decision or order in a contested case shall be made by the agency in writing after review of the official record as defined in G.S. 150B-37(a) and shall include findings of fact and conclusions of law. If the agency does not adopt the administrative law judge’s recommended decision as its final decision, the agency shall state in its decision or order the specific reasons why it did not adopt the administrative law judge’s recommended decision. The agency may consider only the official record prepared pursuant to G.S. 150B-37 in making a final decision or order, and the final decision or order shall be supported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31. The mandate expressed in section 36(b) is then carried through to the judicial review process: § 150B-51. Scope of review. (a) Initial Determination in Certain Cases. — In reviewing a final decision in a contested case in which an administrative law judge made a recommended decision, the court shall make two initial determinations. First, the court shall determine whether the agency heard new evidence after receiving the recommended decision. If the court determines that the agency heard new evidence, the court shall reverse the decision or remand the case to the agency to enter a decision in accordance with the evidence in the official record. Second, if the agency did not adopt the recommended decision, the court shall determine whether the agency’s decision states the specific reasons why the agency did not adopt the recommended decision. If the court determines that the agency did not state specific reasons why it did not adopt a recommended decision, the court shall reverse the decision or remand the *199 case to the agency to enter the specific reasons. (Emphasis added.) Despite having thus developed a new system of administrative hearing, emphasizing the independent role and function of ALJs, the Legislature has continued to give the interested agency the duty and responsibility to enter final decisions, either adopting the ALJ’s recommended decision, or, in the alternative, entering its own order. See G.S. § 150B-36. Thus, the interested agency still has the authority to make its own findings of fact, conclusions of law and decision. The tension between the role and function of the independent hearing ALJ and the interested agency is clearly demonstrated in this case. The Department simply viewed the record of evidence differently from the ALJ, rejected many of the ALJ’s findings of fact, substituted its own, and on those grounds drew different conclusions of law —all leading to its rejection of the ALJ’s recommended decision. The bottom-line difference is that in its version of the facts, the agency found Mrs. Ford’s violations to be willful. Then, even though it found the “danger” to be “not substantial,” it saw fit to levy a heavy fine indeed — $8,620.00. The Department’s order explains why it changed the findings of fact. Then, its order explains that on the facts as found by it, different conclusions of law must be drawn. We reluctantly agree that the Department’s order meets the spirit of the mandates we have spoken to in this opinion. Now this case must go back to the Superior Court, where that Court must once again resolve Mrs. Ford’s appeal. See G.S. § 150B-51. This case therefore further illustrates that the present system of resolving contested cases carries with it the inherent risk of inefficient, if not wasteful, use of judicial resources. It is certainly not inconceivable that when the trial court resolves this case once again, the case may return to this Court. In this case, where we are presented with one narrow question, the Department has filed a record on appeal totaling 303 pages, most of which is not pertinent to the question before us. We therefore order that the Department be charged with the entire cost in this Court associated with the record. For the reasons stated, the order of the court below is reversed and this case is remanded for further appropriate proceedings. *200 Reversed and remanded. Judges ARNOLD and EAGLES concur.