An area most often misunderstood in the regulation of the professions is the separation of powers.  To put it simply, the difference between the people or person who seeks to discipline a licensee, and the people or person who decides whether or not to discipline the licensee.  We usually refer to these "people" collectively as "the Board" or "the Department."  Sometimes we call some of them "the Attorney General."  These non-specific labels are misleading and mask the true nature of the system.

In the criminal justice system, when we violate the law we are arrested by a police officer or investigated by a detective.  The police officer or detective puts together the evidence and walks it into the District Attorney’s office.  The D.A. decides whether to file the case, and if he does, he takes it to the court to file the case and (sometimes) to a judge to get a warrant.  The judge later acts as referee of the case (between the accused and the prosecutor).  If the case is not resolved by agreement of the prosecutor and defendant, then a jury decides guilt or innocence, and the judge imposes a sentence.  Therefore, the independent district attorney, elected judge and selected jury all act as checks upon the power of the police, to ensure the fair and lawful handling of cases.  

In licensing law, the licensing agency typically is comprised of two distinct "entities."  On the one hand, there is the administrative staff, which includes enforcement staff, that acts like the police. The administrative staff may have its own lawyers, who work for enforcement staff, or may contract with the Attorney General’s office for legal representation.  In California, boards and bureaus typically hire the Attorney General’s office, while Departments (such as real estate or insurance) have their own in-house lawyers.  Lawyers who represent licensing agencies typically have less independence than a criminal prosecutor.  The criminal prosecutor can freely reject cases, but the licensing agency attorney is not usually free to make that decision, but instead must persuade their client (like in the private sector) that a case lacks merit. 

The second entity that makes up the licensing agency is the decision-maker, which is a board or an agency head.  The decision-maker should have no foreknowledge of a disciplinary matter until it is brought to them for a decision, just as an impartial jury should have no foreknowledge of a criminal matter.  Due to the volume of cases and complexity of legal issues, the decision-maker may have their own in-house adviser attorneys to help analyze cases or, in the case of a sole decision maker, lieutenants (also usually high ranking lawyers) who can aid in making decisions.  In most cases, decision-makers are too busy to hear cases themselves, so they delegate the job of hearing cases to administrative law judges, who make proposed decisions.  The administrative law judges must prepare detailed proposed decisions to give the decision-makers sufficient information to comfortably adopt most decisions.

Therefore, the licensing agency has a sort of dual personality.  For example, the Medical Board has within it administrative staff including enforcement staff.  The enforcement apparatus of the Medical Board of California has considerable resources.  With a large staff in Sacramento and twelve district offices, enforcement staff includes analysts and investigators in the field who identify and build cases against physicians.  This enforcement work is done with no direct supervision by or knowledge of the Medical Board itself, a 15 member group that meets about 4-6 times per year to make decisions, including decisions on disciplinary matters.  Board enforcement staff hires and pays the Department of Justice to provide it with Deputy Attorney Generals to represent it in legal matters.  Only once a case has been litigated until a proposed decision is reached does that case then come before the Medical Board to make a final decision.  The formal structure used by the Medical Board is based upon a separation of powers: enforcement staff is a type of executive (with an executive director above all administrative staff) and the decision-making Board is a form of judiciary, like a judge or jury.

This structure often leads licensees and their attorneys to conclude that administrative courts are "kangaroo courts."  After all, the "complainant" who brings a case, which may be the executive director of an agency or the head of enforcement, is typically the trusted and well-liked employee of the agency head or board that ultimately decides a case.  Although an administrative law judge is impartial, his or her proposed decision can be voided by the agency head or board and replaced with a decision more to the agency head’s or board’s liking.  Although there is some truth in these observations, the reality is more complex.

Due to the high volume of cases, administrative agency heads or boards must, as a practical matter, agree with the decisions of administrative law judges almost all of the time, because the reweighing of evidence required to render a new and different decision taxes the limited resources of the decision-maker.  Also, the Superior Court and Appellate Court are an important check on licensing agencies to ensure they act in a reasonable, deliberate and lawful fashion.  But perhaps most importantly, licensing agencies must carefully balance public protection with the interests of the licensees the agencies regulate.  Although public protection is the stated mission of licensing agencies, an overzealous regulator can cripple the industry it regulates or create unintended results, such as driving significant numbers of individuals to work without licenses.

What I have learned in handling hundreds of licensing matters is that the administrative arena has many traps for unwitting attorneys.  Lawyers accustomed to the impartiality and significant due process protections of Superior Court often fail to understand who the decision makers are and how decisions are made in license discipline litigation.  Administrative law requires a "Goldilocks" approach.  If the lawyer is too aggressive or enjoys early success based upon exploiting legal technicalities or hiding the ball, the administrative process has a way of catching up to and extinguishing such successes through the ultimate power of the agency head or board.  If a lawyer is too passive, concluding that the whole system is rigged and there is no way to win, important opportunities to influence the decision-makers will be lost and the lawyer’s fatalism will breed failure.  Attorneys must be thoughtful, prepared, persuasive and proactive, but also honest, forthright and determined, to achieve the best results in license cases