TALLAHASSEE — Florida House lawmakers are making a second attempt to give Gov. Rick Scott the power to appoint administrative law judges, something that would threaten the independence of that judicial group, the Association of Administrative Law Judges president said during a recent interview.

"The integrity of any adjudicatory system depends on judges being independent," AALJ President Marilyn Zahm, an administrative law judge, told Florida Record. "It is equally as important that Judges be perceived by the public as independent. A system of selection of ALJs that allows for partisan politics erodes the perception of the neutral decision-maker."

Rep. Heather Fitzenhagen (R-Fort Myers)
Rep. Heather Fitzenhagen (R-Fort Myers)

This month, a state House committee approved an amendment to an existing bill that would give Scott power to appointment administrative law judges. The amendment follows a House bill, which failed last spring, that would have provided the governor that same power.

HB 941 is an administrative procedures bill filed Dec. 7 in the state House. The bill was placed on the Government Accountability Committee's agenda Feb. 6 and the new language that makes up Amendment No. 142551, proposed by Rep. Heather Fitzenhagen (R-Fort Myers), was added the following day.

Under the amendment's provisions, statewide nominating commission would be established to vet administrative law judge candidates, from whom the governor and the governor's cabinet would select to fill a vacant position.

HB 941, along with Amendment No. 142551, was unanimously adopted by a committee vote Feb. 8. The entire bill was placed on the House calendar Tuesday.

A similar Senate bill, SB 1410, has been in that chamber's Governmental Oversight and Accountability committee since Jan. 12 but does not contain the language of Amendment No. 142551. To become law, the two bills would have to be reconciled or one would have to pass both chambers before it would go to Scott to sign or veto.

Amendment No. 142551 is not the first time Florida lawmakers have attempted to grant the governor power to appoint administrative judges. HB 1225, introduced into the state House early last March, would also have granted the governor power to appoint administrative law judges. That bill also would have limited administrative law judges to a maximum term of eight years unless the governor chooses to remove a judge.

HB 1225 also spent time in the House Government Accountability Committee before it was referred to the House Governmental Oversight and Accountability Committee on April 26, where it died May 5 after being indefinitely postponed and was withdrawn from consideration.

The method for selecting an administrative law judge under HB 941 Amendment No. 142551 certainly isn't how federal administrative law judges are chosen, Zahm said. "Federal ALJs are chosen after a rigorous process administered by the Office of Personnel Administration," she said.

"We are required to have significant litigation experience, take a full day written test, and be interviewed by a panel of judges and attorneys. Our qualifications are scored and, when a federal agency wants to hire an ALJ, the agency is provided with a list of the top three candidates and must choose from that list. This process ensures that judges are qualified and are chosen on merit, not politics."

That method of selecting federal administrative law judges has worked well at the federal level, Zahm said. "The above method works well, as the ALJ Corps in the federal government is top-notch, filled by former state judges and ALJs, federal magistrates, law school professors, and highly skilled private sector and public sector attorneys," she said.

Zahm also said that administrative law judge selection is not uniform across U.S. states. "I have limited familiarity with state ALJs, although I was a New York State ALJ before I became a federal ALJ," she said. "My selection was made by the head of the agency that employed me, the New York State Public Employment Relations Board, and my hiring was based solely on merit and my background.  It is my understanding that the scope and function of ALJs varies from state to state and the selection process varies from state to state as well."

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