The

Janet Napolitano
Governor

OAH

Cliff J. Vanell
Director

Vol. 34
January 2005
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

An Open Letter to the Administrative Law Judges
by Cliff J. Vanell, Director

As we begin our ninth year at the OAH, I can only thank
you for the efforts you have given to your cases and the
parties who have come before you. My words are in
many ways distillations of what I have seen in you. We
can never be too mindful of the effect we can have on

A man is woken up at 2:00 am, dragged from his bed by strangers
and carted off into another room when he is rendered unconscious,
his body exposed and cut open. Eventually he regains consciousness to painfully heal over weeks and months. A crime scene?
Yesterday’s news?
This is surgery from the patient’s point of view.
I first heard this take on a patient’s experience from a faculty member of the Arizona Medical Center as she addressed first year medical students. The purpose was to sensitize them about how vulnerable patients can feel and how important it is to relieve stress
and minimize trauma.
Surgery and the legal system have much in common. Both can be
traumatic, both are necessary and must be endured, one to cure
an illness, one to redress a grievance.
The creation of the OAH to a certain extent was designed to do for
administrative hearings what the faculty member was exhorting
future doctors to do. The OAH was designed to be user-friendly,
accessible to the unrepresented, efficient, so that whatever ill could
be addressed with the minimum of stress and trauma, personal,
financial or otherwise.
Central to OAH’s effort in this regard is the attention that we place
on the character and demeanor of the Administrative Law Judge.
It is with this in mind that I address my comments in this issue to
the Administrative Law Judges of the OAH.

The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies
began in 1945 with California. The current American states and cities, and Canadian

parties. We can never know enough, there will never
be an end to the refinement that only experience, and
yes, mistakes, can give us. We must be less distressed about an incorrect citation to the law, or a
mistaken finding of fact. Those can be cured. It has
been said that people will often not remember what we
say, but they will remember how we made them feel.
Let our greatest distress be for those times that we
could have been more patient, chosen our words a
little better, explained something yet again to a confused party.
When I was a pro tem judge appearing in various
courts throughout the Phoenix area, I created a simple
ceremony of sorts that I used when I put on the black
robe. I reminded myself that putting on that robe was
a small death, a temporary setting aside of myself: my
needs, my wants or preferences, my prejudices. I
reminded myself that I had an obligation to the parties
to do nothing, by word or by deed, to undermine the
trust that the robe represented. It didn’t matter how I
felt, who I liked, what I was used to, or how sophisticated the parties were.
This moment of recollection was born not out of innate
judging skills so much as the desire to measure up to
the standards that I had seen in judges that I had

“Open Letter”
(continued on page 2)

provinces, having adopted the model, with year of inception are: Alabama (1998);
Alaska (2004); Arizona (1996); California (1961); City of Chicago (1997); Colorado
(1976); Florida (1974); Georgia (1995); Iowa (1986); Kansas (1998); Louisiana (1996);
Maine (1992); Maryland (1990); Massachusetts (1974); Michigan (1996); Minnesota
(1976); Missouri (1965); New Jersey (1979); New York City (1979); North Carolina
(1986); North Dakota (1991); Oregon (1999); South Carolina (1994); South Dakota
(1994); Tennessee (1975); Texas (1991); Washington D.C. (1999); Washington (1981);
Wisconsin (1978); Wyoming (1987); and Province of Quebec ( ).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.

2nd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
95.4% of all Administrative Law Judge Decisions acted upon by
the agencies.* ALJ Decisions, including orders, were accepted
without modification in 93.95% of all Administrative Law Judge
Decisions acted upon by the agencies. 33.36% of all agency
modification was of the order only (i.e. penalty assessed).

As Administrative Law Judges
of the Office of Administrative
Hearings, you do not wear
robes. Instead, you hold yourselves accountable through the
evaluations that you bring to the
attention of the parties at your
hearings. Even more so than
any symbolic representation of
your positions, they flatly challenge you to measure up to
explicit expectations of a judge.

distraction and with as much understanding as we can muster. We must
be conscious of the forces that can
distract us, be they unguarded presuppositions, routine, professional pride,
annoyance with an unruly witness or
party, or personal problems.

To decide impartially
It has been said that the opposite of
Appeals to Superior Court:
love is not hate, but disinterest.
There were 13 appeals filed in Superior Court.
Dispassion should not be mistaken for
Rehearings:
impartiality, since excessive bloodThe rehearing rate was 1.07%, defined as rehearings scheduled
lessness can rob the judge of the
Socrates said that there are
(10) over hearings concluded (936).**
four things important for a judge: necessary impetus to word a decision
Completion Rate:
so as to respect all parties as people
to listen patiently, to speak
The completion rate was 101.2%, defined as cases completed
wisely, to deliberate soberly and with real live interests, emotions and
(2066) over new cases filed (2042).
sensitivities. The ideal judge is one
to decide impartially.
Continuance:
who is impartial, not because dispasThe average length of a first time continuance based on a
sionate or uninterested, but because
To listen patiently
sample of cases (first hearing setting and first continuance both
occurred in the 2nd quarter) was 48.58 days. The frequency of
equally passionate for and interested
The very fact that hearings are
continuance, defined as the number of continuances granted
in the needs of both parties.
called
“hearings”
establishes
the
(239) over the total number of cases first scheduled (2010),
pivotal nature of listening. But
expressed as a percent, was 11.89%. The ratio of first settings
(2105) to continued settings on the calendar (230) was 1 to .109
the very act of listening involves Consistent with these principles, you
ask parties to reflect on your attentivethe need for patience. We all
Dispositions:
approach explaining things in
ness, your effectiveness in explaining
Hearings conducted: 56.8%; vacated prior to hearing: 41.3%;
hearings withdrawn by the agency: 1.9%.
different ways. The very fact
the hearing process, your use of clear
that some people can tell jokes and neutral language, your impartialContrary Recommendations and Agency Response: 13.8%
and some can’t, demonstrates
of Administrative Law Judge Decisions were contrary to the
ity, and your effectiveness in dealing
original agency action where the agency took a position.
that presentation can somewith the issues of the case. You ask
Agency acceptance of contrary Administrative Law Judge
times be everything. Yet at
Decisions was 85.45%.
whether they have been given suffihearing, great latitude must be
cient space, free from distractions,
*1.08% of Administrative Law Judge Decisions were certified as final by
given for personal style, choices
the OAH due to agency inaction or were rendered moot by settlement.
and whether they have had their
** Cases which were vacated or which settled on the day of hearing are
of words, cadence and volume
not included.
questions responded to promptly and
in speaking and the choices
completely. You want to know
people make in what to approach first. Failure to allow the whether they have been treated
courteously by all.
necessary latitude results in frustration
“Open Letter”
in
the
parties
and
consequently
the
(continued from page 1)
As any judge must necessarily admit,
judge saying more and more and the
we do not always measure up to our
parties saying less.
appeared before for many years as a
standards. We are a human instituprosecutor. It was born of the knowltion. However, we become increasedge that I could be abrupt if I was not To speak wisely
ingly refined as we remain open,
To speak wisely is to say what is
careful. That I could wrongly assume
approachable and teachable. Citizens
necessary and useful. For a judge,
that the parties knew more about the
would be heartened to know how
speech should be primarily to encourprocess than they did; that I could
vigorously we strive to receive
age others to speak about their posiforget that the parties often were less
comment and how seriously we take it
tions. This is done by explaining the
comfortable than they appeared, that
when we receive it. Let us all renew
procedures that will be employed at
judges can look very scary, and that
our commitment to provide full, fair,
hearing. It consists of ruling on objecpeople want to believe that win, lose
tions in a way to help parties know what impartial, independent and prompt
or draw, they were given a fair shake
was objectionable and how to proceed. hearings to all who come before us.
to explain their side before someone
For my part, I promise to support you
they could respect. Therefore, I must
in your continuing education, listen
To deliberate soberly
speak more slowly, react less freEvery case is the most important to the when you have concerns, and chalquently, take a little more time to
lenge you to meet the highest levels of
parties. Thus, every case must be
explain, express compassion, and be
public service that you can provide.
given the attention it deserves, without
aware of my expressions.

page 2

Agency Response to Administrative Law Judge Decisions October 1, 2004 - December 31, 2004
900
777

800

Agency rejects the
Administrative Law Judge
Decision
2.03%

700

Cases

600

Administrative Law Judge
Decision moot
0.12%

Agency amends order only
1.44%

500

Administrative Law Judge
Decision certified as final upon
agency inaction
0.96%

400

Agency amends findings of
fact/conclusions of law only
2.51%

300
200

17

Agency amends
order only

Agency rejects
the
Administrative
Law Judge
Decision

1

8
Administrative
Law Judge
Decision
certified as final
upon agency
inaction

12

Administrative
Law Judge
Decision moot

21
Agency amends
findings of
fact/conclusions
of law only

100

Agency accepts
without
modification

0

Agency accepts without
modification
92.94%

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, October 1 - December 31, 2004
60.00
48.78

50.00

47.68

Days

40.00
30.00
20.00

13.39 14.21

10.00
1.86

14.15

14.99

AAA
CC

4.53

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a
hearing. A typical example would be the denial of a license. A party is entitled to a hearing
before the OAH before the action becomes final. Contested Cases involve actions yet to be
determined by an agency. An example would be proposed discipline on a professional
license with the possibility of suspension or revocation. Parties are entitled to a hearing
before the OAH prior to the agency acting.

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing to ALJ Decision to Agency
ALJ Decision
Action

2042 Cases Filed October 1, 2004 - December 31, 2004
2nd Q

Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
Arizona Trial Courts
Arizona Retirement Sys.
Attorney General
Arizona Works
Athletic Board
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental

FY 2005

1
3
0
0
0
4
85 144
1
1
0
0
975 1992
0
0
15
30
0
0
3
4
0
1
0
0
0
0
7
20
1
2
14
32
5
6
3
5
0
0
0
0
0
3
6
11

2nd Q

Economic Security
Economic Security-CPS
Education (Department)
Environ. Quality
Fingerprinting
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Massage Therapy
Medical Board
Medical Radiologic
Naturopathic
Nursing
Nursing Care Admin.
Occupation Therapy
Optometry
Osteopathic
Parks

page 3

FY 2005

0
62
4
39
80
0
1
89
22
1
12
0
0
4
5
0
0
21
3
0
0
0
0

0
115
5
71
193
0
4
204
40
4
24
0
0
4
8
0
0
42
6
0
1
0
0

2nd Q FY 2005

2
Peace Ofc. Standards
0
Physical Therapy
0
Podiatry
1
Psychologist Examiners
3
Public Safety - CW
6
Public Safety - Trans
0
Public Safety - Adult CC
0
Pvt. Post. Ed.
0
Racing
0
Radiation Regulatory
467
Registrar of Contractors
41
Real Estate
11
Revenue
0
School - Deaf & Blind
3
Secretary of State
State Board of Education 1
2
Structural Pest Control
1
Technical Registration
0
Veterinary Board
3
Water Qual. App. Bd.
2
Water Resources
40
Weights and Measures

9
0
0
1
5
11
0
0
0
0
989
82
43
0
9
1
9
1
0
4
4
72

Evaluations of OAH Services
Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ
involved. They are used by management to improve the OAH process and do not affect the
decisions issued.

All Responses 2nd Quarter

Unrepresented Responses 2nd Quarter
300

600

250

500
Excellent

200

Good

150

Average

100

Poor

400
300
200

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100

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50

Questions:

5. Effectiveness in dealing with the issues of the case

1. Attentiveness of ALJ

6. Sufficient space

2. Effectiveness in explaining the hearing process

7. Freedom from distractions

3. ALJ’s use of clear and neutral language

8. Questions responded to promptly and completely

4. Impartiality

9. Treated courteously

This publication is available in alternative formats. The OAH is an equal opportunity employer.

Excellent
Good
Average
Poor