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Life In The Administrative State – Part 3 of an Occasional Series

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Continuing my look at life in the administrative state, I began with some definition and generalities.  I then took a look at some examples of the petty power play.  In this entry I want to look at the process by which disputes are handled with the administrative state and whether it comes with a presumption of innocence or guilt.

The presumption of innocence has its roots not in the constitution, but in the English common law.  (Disclaimer, I am not a lawyer.)  It is generally discussed only in criminal cases because civil cases are about disputes, they are not the power of government seeking to punish a wrong-doer.  And this, frankly is the first place the administrative state starts to get really off-beam.  So, so many administrative enforcement actions, if they ever make it out of the administrative process (more on that in a minute) and into the actual court room are handled as civil cases – not criminal.

That, on its face, just seems wrong.  A agency of government accuses you of violating some regulation.  They may choose not to call it a crime – but come on, when the government accuses you of something you are in the dock whether they call it an administrative case, a civil case, or a criminal case.  But the point is if it is not a crime, after they make the accusation it is generally up to you to prove you did not do it as opposed to them proving you did.

Of course, the agency in question has thoroughly investigated and compiled evidence and have a lot of it, but so do prosecutors in a genuine criminal case, that does not mean you are not entitled to a trial and the other aspects of due process.  The administrative state has all sorts of mechanisms that shortcut the traditional due process that we all know from civics classes and, to a limited extent, television.  It can be bewildering and overwhelming.  And while the shortcuts usually contain some method to achieve actual due process, that path is well disguised, onerous, and generally more expensive than simply giving the agency the fine it wants and moving on.

Sometimes, it comes in a form that most of us would recognize – a ticket.  Someone from the agency checks you out in some fashion.  They find a problem – like a cop catching you speeding.  Sometime later a piece of mail arrives telling you, you owe $XXX as a fine.  But here is the difference – when you get a traffic ticket, it is a court summons and the document that comes in the mail that you sign is a guilty plea and the cop tells you that at the time and everybody knows what they are signing when they pay the fine.  But the administrative state is very different – there is no guilt, no plea, just, “This agency finds you in violation, you must pay….”  Unlike the traffic ticket where you can just show up in court instead of pay the fine, and argue your case – in the administrative case, you must APPEAL the agency’s finding if you want to disagree with the agency.  Do you see the difference there?  It is not a matter of agreeing or disagreeing with your guilt – you are guilty and are now appealing your case.  The agency has judged your guilt without a trial.  And if you do go through the incredible pain of an appeal, that appeal is heard in front of a appeals board of the agency – not an independent judiciary.

That is not always how it works, but that is the most common.  Sometimes instead of the agency simply leveling a fine, they threaten you with civil litigation or referral from criminal prosecution – but you can avoid all that if you will just meet with them and discuss how much you will pay to avoid it.  Everybody knows about such settlement agreements or plea bargains – we see them on TV every day.  But when it is a government agency telling you you have violated XYZ, rules that often you did not even know existed, the line between settlement conference and extortion gets really thin.  Heck, just finding a lawyer that really knows about this stuff is incredibly difficult.

This settlement process can, depending on the agency in question, be even more extortive in nature than it would seem on first blush.  I have been involved in some where the agency and its representation (sometime agency lawyers, sometime the AG of the jurisdiction in question) simply says, “We found a number of violations, but have not worked them into specific charges yet.”  In other words, you are in the process of negotiating “a fine” for “a crime” unspecified.  How does one even begin to defend oneself against accusations of an unspecific nature?  The justification for this procedure is that it saves both “the accused” and “the state” enormous amounts of money because of what it would cost for the lawyers to work up specific charges and the member of the regulated community to retain counsel.  This justification has some validity, but regardless the exercise seems much like a guy in a pinstripe suit entering your store front and saying “Nice store, it would be a shame if something bad happened to it.”

I have been told by legal experts that ought to know that all I have described herein is legal – been tried against the constitution and found valid, but I cannot help but wonder if that has something to do with the fact that it is called regulation and not legislation, and that the regulation is drafted as civil, not criminal issues.  In other words, the foundation on which all this is built is some linguistic sleight-of-hand to make it easy for the state to operate outside its normal parameters.  There is no question that were all this made into simple criminal violations the courts would choke on both the volume of work and the technical complexity of the cases, and that the cost of adjudicating everything would break more than one member of the regulated community, but that makes me wonder if it is a place the state ought to be meddling in at all.  Even if the “public good” is at stake, maybe the public ought bring actual civil litigation against the actor for the damages it suffers, rather than the government represent the people.  If a few members of what is now the regulated community were to lose such cases, the rest of the community would amend their ways pretty quickly.

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