Combining Investigative, Prosecutorial, and Judicial Powers

The legislature can render the decision making authority to an administrative board without violating the doctrine of separation of powers.  The administrative board with such authority possesses dual character in which some of its acts come under legislative or administrative area while some others equalize to a judgment.  Such an administrative board has the right to give verdicts to the issues that affects private rights[i].

Some administrative agencies investigate violations of law.  They act as accusers, advocates or prosecutors as well as judges in the same proceeding.  It is not uncommon for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings.  This procedure will not violate the Administrative Procedure Act and due process of law[ii].

In New York State Dairy Foods v. Northeast Dairy Compact Comm’n, 26 F. Supp. 2d 249, 264 (D. Mass. 1998), the court observed that a fair proceeding before an impartial decision maker is a basic requirement of due process and is applicable to both administrative agencies and the courts.

The probability of unfairness occurs more in an agency where there is a high degree of concentration of both prosecuting and judicial functions.  The chance of unfairness increases especially when the functions are entrusted in the same person.

[i] McKay v. New Hampshire Compensation Appeals Bd., 143 N.H. 722 (N.H. 1999)

[ii] Withrow v. Larkin, 421 U.S. 35 (U.S. 1975)


Inside Combining Investigative, Prosecutorial, and Judicial Powers