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Executive control of agencies: State hiring or appointment of administrative law judges (2020)

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This survey is part of a series of 50-state surveys examining the five pillars key to understanding the administrative state
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This page contains information from a Ballotpedia survey about state constitutions or administrative procedure acts that provided for the hiring or appointment of administrative law judges or other hearing officers.

Looking at state administrative law judges (ALJs) and other hearing officer selection provides insight into how executive control of agencies works at the state level. Executive control is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

In some cases, the constitution and APA did not mention whether those listed officials were hired or appointed. This page indicates which states did not answer the question in those documents.

According to the 2020 BP survey, more states hired ALJs and those who serve as hearing officers.

This page features the following sections:

In 2025, Ballotpedia updated the pillar system used to understand the main areas of debate about the nature and scope of the administrative state. Click here to learn more about this updated structure and to see Ballotpedia's current content related to the administrative state.




Background

Ballotpedia conducted a survey of all 50 state constitutions and administrative procedure acts (APAs) to learn whether ALJs and other hearing officers were hired or appointed. In theory, ALJs and officers who are hired will have more political independence than those who receive appointments from the governor or another political official.

A state ALJ or hearing officer oversees agency adjudication of contested cases. These officers resolve disputes and make sure the agency and those with business before the agency follow proper procedures.

Adjudication procedures varied from state to state. This page covers the hiring or appointment of any officer who presided over agency hearings. Most states call those officers ALJs or hearing officers, but the survey found and included states that called such officers hearing examiners, presiding officers, or other similar names.

State APAs govern procedures for state administrative agencies to propose and issue regulations, adjudicate disputes, and provide for judicial review of agency decisions. Many state APAs are modeled on the federal APA, which governs the administrative processes of federal executive branch agencies. Text of all 50 state APAs is available here.

Summary of findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of March 2020):

  • 12 states, 24%, had APAs that provided for the hiring of ALJs or hearing officers
  • 7 states, 14%, had APAs that provided for the appointment of ALJs or hearing officers
  • The South Carolina APA provided for the election of ALJs by the general assembly
  • The Arizona APA mentioned ALJs as both appointed and hired officers
  • The Connecticut APA mentioned that hearing officers are appointed but can also be employees of agencies
  • 28 states, 56%, had constitutions and APAs that did not mention the hiring or appointment of ALJs or hearing officers

States with APAs or constitutions that provided for the hiring or appointment of administrative law judges or other hearing officers

The table below includes each state in alphabetical order and indicates those with specific provisions in their constitutions or APAs providing for the hiring or appointment of administrative law judges or other hearing officers.

  • Done means that the state constitution or APA provided for the hiring of administrative law judges or other hearing officers
  • Right-facing-Arrow-icon.jpg means that the state constitution or APA provided for the appointment of administrative law judges or other hearing officers
  • Pending legislation means that the state constitution or APA provided for the election of administrative law judges or other hearing officers
  • DefeatedA means that the state constitution or APA did not provide for the hiring or appointment of administrative law judges or other hearing officers
State Constitutional provision related to the hiring or appointment of administrative law judges or other hearing officers State APA provision related to the hiring or appointment of administrative law judges or other hearing officers
Alabama DefeatedA DefeatedA
Alaska DefeatedA DefeatedA
Arizona DefeatedA DoneRight-facing-Arrow-icon.jpg*
Arkansas DefeatedA DefeatedA
California DefeatedA Right-facing-Arrow-icon.jpg
Colorado DefeatedA DefeatedA
Connecticut DefeatedA DoneRight-facing-Arrow-icon.jpg*
Delaware DefeatedA DefeatedA
Florida DefeatedA Done
Georgia DefeatedA Done
Hawaii DefeatedA DefeatedA
Idaho DefeatedA DefeatedA
Illinois DefeatedA DefeatedA
Indiana DefeatedA DefeatedA
Iowa DefeatedA DefeatedA
Kansas DefeatedA Done
Kentucky DefeatedA Done
Louisiana DefeatedA Done
Maine DefeatedA Done
Maryland DefeatedA DefeatedA
Massachusetts DefeatedA DefeatedA
Michigan DefeatedA DefeatedA
Minnesota DefeatedA Right-facing-Arrow-icon.jpg
Mississippi DefeatedA DefeatedA
Missouri DefeatedA DefeatedA
Montana DefeatedA Right-facing-Arrow-icon.jpg
Nebraska DefeatedA DefeatedA
Nevada DefeatedA DefeatedA
New Hampshire DefeatedA DefeatedA
New Jersey DefeatedA DefeatedA
New Mexico DefeatedA DefeatedA
New York DefeatedA Done
North Carolina DefeatedA Right-facing-Arrow-icon.jpg
North Dakota DefeatedA Done
Ohio DefeatedA Right-facing-Arrow-icon.jpg
Oklahoma DefeatedA Right-facing-Arrow-icon.jpg
Oregon DefeatedA Done
Pennsylvania DefeatedA Right-facing-Arrow-icon.jpg
Rhode Island DefeatedA DefeatedA
South Carolina DefeatedA Pending legislation
South Dakota DefeatedA DefeatedA
Tennessee DefeatedA Done
Texas DefeatedA DefeatedA
Utah DefeatedA DefeatedA
Vermont DefeatedA DefeatedA
Virginia DefeatedA DefeatedA
Washington DefeatedA DefeatedA
West Virginia DefeatedA DefeatedA
Wisconsin DefeatedA Done
Wyoming DefeatedA Done
Notes: * - Arizona and Connecticut have APAs that indicate that ALJs and hearing officers are both appointed and hired

Text of state APAs that provided for the hiring of administrative law judges or other hearing officers

This section contains text from the state APAs that provided for the hiring of administrative law judges or other hearing officers. Statutes from other states with different systems are not included in this section.

Some sections display whole articles from a state APA while others only show relevant segments.

Arizona

See also: Arizona Constitution and Arizona Administrative Procedure Act

Section 41-1092.01 of the Arizona APA:

B. The governor shall appoint the director pursuant to section 38-211. At a minimum, the director shall have the experience necessary for appointment as an administrative law judge. The director also shall possess supervisory, management and administrative skills, as well as knowledge and experience relating to administrative law.


C. The director shall:

1. Serve as the chief administrative law judge of the office.
2. Make and execute the contracts and other instruments that are necessary to perform the director's duties.
3. Subject to chapter 4, article 4 of this title, hire employees, including full-time administrative law judges, and contract for special services, including temporary administrative law judges, that are necessary to carry out this article. An administrative law judge employed or contracted by the office shall have graduated from an accredited college of law or shall have at least two years of administrative or managerial experience in the subject matter or agency section the administrative law judge is assigned to in the office.[1]

Connecticut

See also: Connecticut Constitution and Connecticut Administrative Procedure Act

Section 4-166(6) of the Connecticut APA:

(6) “Hearing officer” means an individual appointed by an agency to conduct a hearing in an agency proceeding. Such individual may be a staff employee of the agency;[2]

Florida

See also: Florida Constitution and Florida Administrative Procedure Act

Section 120.65 of the Florida APA:

The Division of Administrative Hearings within the Department of Management Services shall be headed by a director who shall be appointed by the Administration Commission and confirmed by the Senate. The director, who shall also serve as the chief administrative law judge, and any deputy chief administrative law judge must possess the same minimum qualifications as the administrative law judges employed by the division.[3]

Georgia

See also: Georgia Constitution and Georgia Administrative Procedure Act

Section 50-13-40 of the Georgia APA:

(b) The head of the office shall be the chief state administrative law judge who shall be appointed by the Governor, shall serve a term of six years, shall be eligible for reappointment, and may be removed by the Governor for cause. ...


(e)

(1) The chief state administrative law judge shall have the power to employ full-time assistant administrative law judges who shall exercise the powers conferred upon the chief state administrative law judge in all administrative cases assigned to them.[4]

Kansas

See also: Kansas Constitution and Kansas Administrative Procedure Act

Section 77-514 of the Kansas APA:

For all agencies, except for the state board of tax appeals, the agency head, one or more members of the agency head or a presiding officer assigned by the office of administrative hearings shall be the presiding officer.[5]

Kentucky

See also: Kentucky Constitution and Kentucky Administrative Procedure Act

Section 13B.030 of the Kentucky APA:

(2)(a) In securing hearing officers as necessary to conduct administrative hearings under the jurisdiction of the agency, an agency may:


1. Employ hearing officers;
2. Contract with another agency for hearing officers; or
3. Contract with private attorneys through personal service contract.[6]

Louisiana

See also: Louisiana Constitution and Louisiana Administrative Procedure Act

Section 994 of the Louisiana APA:

A. The director of the division shall employ the administrative law judges for the division ...[7]

Maine

See also: Maine Constitution and Maine Administrative Procedure Act

Article V, Part 2, Section 1 of the Maine Constitution:

An agency may authorize any agency member, employee or agent to act as presiding officer in any hearing. [8]

New York

See also: New York Constitution and New York Administrative Procedure Act

Section 303 of the New York APA:

Except as otherwise provided by statute, the agency, one or more members of the agency, or one or more hearing officers designated and empowered by the agency to conduct hearings shall be presiding officers.[9]

North Dakota

See also: North Dakota Constitution and North Dakota Administrative Procedure Act

Section 28-32-01(6) of the North Dakota APA:

"Hearing officer" means any agency head or one or more members of the agency head when presiding in an administrative proceeding, or, unless prohibited by law, one or more other persons designated by the agency head to preside in an administrative proceeding, an administrative law judge from the office of administrative hearings, or any other person duly assigned, appointed, or designated to preside in an administrative proceeding pursuant to statute or rule.[10]

Oregon

See also: Oregon Constitution and Oregon Administrative Procedure Act

Article VI, Section 1 of the Oregon Constitution:

(1) The Governor shall appoint a person to serve as chief administrative law judge for the Office of Administrative Hearings. The Governor shall consider recommendations by the Office of Administrative Hearings Oversight Committee in appointing a chief administrative law judge. ... the chief administrative law judge shall employ all persons necessary for the administration of the office, prescribe the duties of those employees and fix their compensation. ...


(2) The chief administrative law judge shall employ administrative law judges.[11]

Tennessee

See also: Tennessee Constitution and Tennessee Administrative Procedure Act

Section 4-5-324 of the Tennessee APA:

(a) Each person employed to serve as an administrative judge or hearing officer within the executive branch shall, within the six-month period following the date of such employment, participate in a program of training for administrative judges and hearing officers conducted by the department of human resources, division of training.[12]

Wisconsin

See also: Wisconsin Constitution and Wisconsin Administrative Procedure Act

Section 227.46.1 of the Wisconsin APA:

Except as provided under s. 227.43 (1), an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any contested case.[13]

Wyoming

See also: Wyoming Constitution and Wyoming Administrative Procedure Act

Section 16-3-112(a) of the Wyoming APA:

(a) If not otherwise authorized by law there shall preside at the taking of evidence in all contested cases the statutory agency, one (1) or more members of the body which comprises the agency, or an employee of the agency or an employee of another agency designated by the agency to act as presiding officer.[14]

Text of state APAs that provided for the appointment of administrative law judges or other hearing officers

This section contains text from the state APAs that provided for the appointment of administrative law judges or other hearing officers. Statutes from other states with different systems are not included in this section.

Some sections display whole articles from a state APA while others only show relevant segments.

Arizona

See also: Arizona Constitution and Arizona Administrative Procedure Act

Section 41-1092.01 of the Arizona APA:

B. The governor shall appoint the director pursuant to section 38-211. At a minimum, the director shall have the experience necessary for appointment as an administrative law judge. The director also shall possess supervisory, management and administrative skills, as well as knowledge and experience relating to administrative law.


C. The director shall:

1. Serve as the chief administrative law judge of the office.
2. Make and execute the contracts and other instruments that are necessary to perform the director's duties.
3. Subject to chapter 4, article 4 of this title, hire employees, including full-time administrative law judges, and contract for special services, including temporary administrative law judges, that are necessary to carry out this article. An administrative law judge employed or contracted by the office shall have graduated from an accredited college of law or shall have at least two years of administrative or managerial experience in the subject matter or agency section the administrative law judge is assigned to in the office.[1]

California

See also: California Constitution and California Administrative Procedure Act

Section 11370.2 of the California APA:

(b) The director shall have the same qualifications as administrative law judges, and shall be appointed by the Governor subject to the confirmation of the Senate.[15]


Section 11370.3 of the California APA:

The director shall appoint and maintain a staff of full-time, and may appoint pro tempore part-time, administrative law judges qualified under Section 11502 which is sufficient to fill the needs of the various state agencies.[16]

Connecticut

See also: Connecticut Constitution and Connecticut Administrative Procedure Act

Section 4-166(6) of the Connecticut APA:

(6) “Hearing officer” means an individual appointed by an agency to conduct a hearing in an agency proceeding. Such individual may be a staff employee of the agency;[2]

Minnesota

See also: Minnesota Constitution and Minnesota Administrative Procedure Act

Section 14.48 of the Minnesota APA:

Subd. 2. Chief administrative law judge. The office shall be under the direction of a chief administrative law judge who shall be learned in the law and appointed by the governor, with the advice and consent of the senate, for a term ending on June 30 of the sixth calendar year after appointment. Senate confirmation of the chief administrative law judge shall be as provided by section 15.066. The chief administrative law judge may hear cases and shall appoint additional administrative law judges and compensation judges to serve in the office as necessary to fulfill the duties of the Office of Administrative Hearings. ...


Subd. 3. Administrative law judges and compensation judges. (a) All administrative law judges and compensation judges shall be in the classified service except that the chief administrative law judge shall be in the unclassified service, but may be removed only for cause.[17]

Montana

See also: Montana Constitution and Montana Administrative Procedure Act

Section 2-4-611 of the Montana APA:

(1) An agency may appoint hearing examiners for the conduct of hearings in contested cases.[18]

North Carolina

See also: North Carolina Constitution and North Carolina Administrative Procedure Act

Section 150B-2 of the North Carolina APA:

(1) "Administrative law judge" means a person appointed under G.S. 7A-752, 7A-753, or 7A-757.[19]

Ohio

See also: Ohio Constitution and Ohio Administrative Procedure Act

Section 119.09 of the Ohio APA:

In any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may appoint a referee or examiner to conduct the hearing. The referee or examiner shall have the same powers and authority in conducting the hearing as is granted to the agency. Such referee or examiner shall have been admitted to the practice of law in the state and be possessed of such additional qualifications as the agency requires. [20]

Oklahoma

See also: Oklahoma Constitution and Oklahoma Administrative Procedure Act

Section 75-250.3(7) of the Oklahoma APA:

"Hearing examiner" means a person meeting the qualifications specified by Article II of the Administrative Procedures Act and who has been duly appointed by an agency to hold hearings and, as required, render orders or proposed orders;[21]

Pennsylvania

See also: Pennsylvania Constitution and Pennsylvania Administrative Procedure Act

Article IV, Section 4 of the Pennsylvania APA:

"Presiding officer." An individual appointed by an agency to preside at an administrative proceeding[22]

Text of state APAs that provided for the election of administrative law judges or other hearing officers

This section contains text from the state APAs that provided for the appointment of administrative law judges or other hearing officers. Statutes from other states with different systems are not included in this section.

Some sections display whole articles from a state APA while others only show relevant segments.

South Carolina

See also: South Carolina Constitution and South Carolina Administrative Procedure Act

Section 1-23-510 of the South Carolina APA:

The judges of the division must be elected by the General Assembly in joint session, for a term of five years and until their successors are elected and qualify;[23]

See also

Footnotes

  1. ↑ 1.0 1.1 JUSTIA, "2019 Arizona Revised Statutes, Title 41 - State Government § 41-1092.01 Office of administrative hearings; director; powers and duties; fund," accessed March 11, 2020
  2. ↑ 2.0 2.1 JUSTIA, "2019 Connecticut General Statutes, Title 4 - Management of State Agencies, Chapter 54 - Uniform Administrative Procedure Act, Section 4-166 - Definitions," accessed March 11, 2020
  3. ↑ JUSTIA, "2019 Florida Statutes, Title X - Public Officers, Employees, and Records, Chapter 120 - Administrative Procedure Act, 120.65 - Administrative Law Judges," accessed March 11, 2020
  4. ↑ JUSTIA, "2017 Georgia Code, Title 50 - State Government, Chapter 13 - Administrative Procedure, Article 2 - Office of State Administrative Hearings § 50-13-40. Office created; chief state administrative law judge," accessed March 11, 2020
  5. ↑ JUSTIA, "2017 Kansas Statutes Chapter 77 STATUTES; ADMINISTRATIVE RULES AND REGULATIONS AND PROCEDURE, Article 5 ADMINISTRATIVE PROCEDURE ACT, 77-514 Presiding officer," accessed March 11, 2020
  6. ↑ JUSTIA, "2018 Kentucky Revised Statutes, CHAPTER 13B - ADMINISTRATIVE HEARINGS .030 Powers of agency head -- Hearing officers," accessed March 11, 2020
  7. ↑ JUSTIA, "2018 Louisiana Laws, Revised Statutes, TITLE 49 - State Administration, RS 49:994 - Administrative law judges," accessed March 11, 2020
  8. ↑ JUSTIA, "2019 Maine Revised Statutes, TITLE 5: ADMINISTRATIVE PROCEDURES AND SERVICES, Part 18: ADMINISTRATIVE PROCEDURES, Chapter 375: MAINE ADMINISTRATIVE PROCEDURE ACT, Subchapter 4: ADJUDICATORY PROCEEDINGS, 5 §9062. Presiding officers," accessed March 11, 2020
  9. ↑ New York State Senate, "State Administrative Procedure Act, Article 3: Adjudicatory Proceedings," accessed March 11, 2020
  10. ↑ North Dakota Legislature, "North Dakota Administrative Agencies Practice Act," accessed March 11, 2020
  11. ↑ Oregon Legislature, "Oregon Constitution," accessed March 11, 2020
  12. ↑ JUSTIA, "2018 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases, § 4-5-324. Training program for administrative judges or hearing officers," accessed March 11, 2020
  13. ↑ Wisconsin Legislature, "Wisconsin APA," accessed March 11, 2020
  14. ↑ JUSTIA, "2018 Wyoming Statutes, TITLE 16 - CITY, COUNTY, STATE AND LOCAL POWERS, CHAPTER 3 - ADMINISTRATIVE PROCEDURE, SECTION 16-3-112 - Contested cases; presiding officers; qualifications; powers; outside personnel; hearing officers," accessed March 11, 2020
  15. ↑ JUSTIA, "2019 California Code, Government Code - GOV, TITLE 2 - GOVERNMENT OF THE STATE OF CALIFORNIA, DIVISION 3 - EXECUTIVE DEPARTMENT, PART 1 - STATE DEPARTMENTS AND AGENCIES, CHAPTER 4 - Office of Administrative Hearings, ARTICLE 1 - General Provisions, Section 11370.2," accessed March 11, 2020
  16. ↑ JUSTIA, "2019 California Code, Government Code - GOV, TITLE 2 - GOVERNMENT OF THE STATE OF CALIFORNIA, DIVISION 3 - EXECUTIVE DEPARTMENT, PART 1 - STATE DEPARTMENTS AND AGENCIES, CHAPTER 4 - Office of Administrative Hearings, ARTICLE 1 - General Provisions, Section 11370.3," accessed March 11, 2020
  17. ↑ JUSTIA, "2019 Minnesota Statutes, Chapters 14 - 15A — State Agencies, Chapter 14 — Administrative Procedure, Section 14.48 — Office Of Administrative Hearings," accessed March 11, 2020
  18. ↑ Montana Legislature, "Montana Code Annotated 2019, TITLE 2. GOVERNMENT STRUCTURE AND ADMINISTRATION, CHAPTER 4. ADMINISTRATIVE PROCEDURE ACT, Part 6. Contested Cases," accessed March 11, 2020
  19. ↑ JUSTIA, "2019 North Carolina General Statutes, Chapter 150B - Administrative Procedure Act, Article 1 - General Provisions. § 150B-2 - Definitions," accessed March 11, 2020
  20. ↑ JUSTIA, "2019 Ohio Revised Code, Title 1 I STATE GOVERNMENT, Chapter 119 - ADMINISTRATIVE PROCEDURE, Section 119.09 - Adjudication hearing," accessed March 11, 2020
  21. ↑ JUSTIA, "2018 Oklahoma Statutes, Title 75. Statutes and Reports, §75-250.3. Definitions," accessed March 11, 2020
  22. ↑ JUSTIA, "2019 Pennsylvania Consolidated Statutes, Title 2 - ADMINISTRATIVE LAW AND PROCEDURE, Chapter 1 - General Provisions, Section 101 - Definitions," accessed March 11, 2020
  23. ↑ South Carolina Legislature, "South Carolina Code of Laws Unannotated, Title 1 - Administration of the Government, Chapter 23, State Agency Rule Making and Adjudication of Contested Cases, Article 1, State Register and Code of Regulations," accessed March 23, 2020
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