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Five Questions Every Manager Should Ask about Judicial Decision-making

This article appeared in the Summer print issue of PA TIMES.

Heidi O. Koenig

The impact of courts and judicial decision making are found in every public organization’s environment–courts are part of the structure of every constitutional government in the United States and are also part of the public organization’s implementation process. Whether as remote as a decision by the court of another jurisdiction or as close as a decision to which the organization is a party, every manager in a public organization has their work altered by judicial activity.

Over the past four decades scholars including John Rohr, David H. Rosenbloom, Rosemary O’Leary and Charles Wise have called for a better understanding of the role the judiciary plays in the work of public organizations. These and other authors have written about cases in an attempt to make sense of judicial involvement in public sector bureaucracy. Textbooks about administrative law have been written and rewritten, and efforts are made to convince students that judicial processes and legal decision making matter.

Unfortunately, the force of these arguments can be negated by one simple thought: Because most public administrators are not experts in the law, they are limited in their ability to bring judicial decision-making to bear on management practices.

Public administrators often excel at gathering information from their environment and using it to make their organizations run more efficiently and get their jobs done more effectively. Gathering information from a judicial opinion, though, seems to require more training than most managers have. However, a basic understanding of a legal decision can be acquired by asking and answering only five questions. These are:

• What is the relative position of the parties to the litigation?

• Is a statutory or constitutional right being asserted?

• How did other courts rule in the case?

• Does our government face a similar issue? How common are these issues?

• If necessary, how can the court’s decision be implemented into the decision making structure of the organization?

Answering these questions will help managers place the holding and logic of the case into the practices of their organization. By knowing the information or at least knowing the information to seek out, the public administrator will be able to use the court’s decision to craft a ore thorough understanding of the legal environment of the organization.

Using the five questions to understand a legal decision does not replace the valuable role an attorney can play withing an organization, but instead supplements it. The manager who asks all five and works toward the answers to them will ask better developed management-oriented questions, and will be able to maximize the use of the attorney’s legal analyses within the management framework of the organization. Again, the purpose is not to supplant the attorney but instead to supplement the analyses accomplished by the attorney by viewing the court’s ruling from a management perspective.

Some of the five questions have fixed answers. For instance, the first question focuses on the type of relationship between the parties to the case. Possible relationships include: employer/employee; citizen/government; government/government; or business/government. The nature of the relationship helps to determine the level of scrutiny used by the court in reviewing the organization’s actions.

The second question must be answered as either statutory, common law, constitutional, or a combination of the three. A statutory rights is one that exists because it is defined by legislatively-created law to exist. Common law is law that has been built incrementally by court decisions over time. Citizens may also sue claiming that their constitutional rights have been violated. It is also possible that citizens may sue claiming their constitutional rights, further defined by statute, have been violated by the government and that the common law supports a finding that the statutory language is proper. The court decides on each claim separately acceptably through the sentencing process.

The answer to the third question listed–how did courts rule in the case–draws on different aspects of the court’s decision. The first is the ruling of the court. The ruling of the court is easy to find. The decision issued by the court issued by the court will undoubtably have statements along the lines of: “it is the ruling of this court” or “this court finds” or “the ruling of the lower court is” overturned, upheld, vacated, etc. The final ruling is very important, particularly to the public organization involved in the lawsuit.

The verdict of the court is not the only portion of the opinion that matters. A great deal of information about potential management pitfalls can be gleaned from cases cited in the decision. All courts must explain the logic of the application of law to the facts of the case. The sources of law will include statutory and constitutional language, and will also include discussions about cases that have come before the one being ruled on. Because the interpretation and application of statutes and judicially created legal principles vary based on the facts of the case, it is important to understand what laws were used by the court to make its decision.

Rulings by other courts are the other sources of information that can be used to answer the third question. When law is applied in a decision, judges make small changes at the margins of prior judicial decisions just as managerial changes are brought about by making small adjustments to practice. Precedent that forces a court to decide an issue in the case in a particular manner is called binding precedent. Persuasive precedent is law that the parties to the case have identified in their arguments about the case–the parties hope to convince the court to interpret the law and the facts so that their side wins.

After reading a number of cases, public administrators should be able to begin to see separations between binding and persuasive precedent. The next step is to learn to make judgements about the impact of the courts logic on their organizations.

Determining whether some application of a specific court decision within the public organization is covered by the fourth question–does your government face a similar issue and if so, how common is the issue in the organization. Not every case applies to every organization and not every department will be affected by a judge’s decision. It is possible that all departments within an organization may have a similar process that needs to be reviewed.

It is also possible that the decision centered on the activities of one office. The first case might be response to citizen requests; the second case might be managing audits of grants. It is important to know where the decision will have an impact within the organization, as managers will seek to make change strategically rather than rewrite the organization’s activities under duress.

The fifth question–how can the judicial decision be integrated into the organization–is the most challenging. To be successful in integrating rulings by courts, managers must consider how judicial decision making will be brought into daily processes of the organization. It is possible that an organization’s leadership is proactive and builds into the organization the capacity to respond to legal decision making as a form of environmental stress. It is also possible that the managers of the organization may choose to refuse to consider change until it is mandated for their organization.

The choice of response should be carefully considered and they systematized whenever possible; to successfully navigate the process of incorporating judicial decisions into practice it is necessary to understand how that might happen before such change is accomplished. Taking the time to answer the five questions will advance the administrator’s ability to stabilize the public organization within its environment and enhance the capacity of all levels of actors within the organization to successfully complete the work of government.

ASPA member Heidi O. Koenig is an associate professor in the Division of Public Administration at Northern Illinois University in DeKalb, IL. Email: [email protected]

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