Byers v. State

CHARLES E. MOYLAN, JR., Judge, retired, specially assigned. This case is a classic appellate court’s nightmare, except that it does not fade at the break of day. It is as if we were called upon to apply the official Major League Baseball Rulebook to a spirited and hard fought neighborhood game of three-at-the-bat. It was a contest with competent adversaries performing skillfully on the field, except for an incorrigible tendency to make up many of the rules as they went along.

The appeal is further complicated by the questionable extent to which we may take notice, nostra sponte, of breaches of the rules when neither party noticed the breaches and where neither, therefore, lodged objections. It behooves us, of course, to look first at the rulebook. The rulebook is Maryland Code, Criminal Procedure Article, Title 3, “Incompetency and Criminal Responsibility in Criminal Cases.” Sections 3-109 through 3-113 spell out how one who has committed a crime but is not criminally responsible gets committed to the Department of Health and Mental Hygiene (“the Department”) in the first place. Sections 3-114 through 3-123 then spell out how, if ever, one gets out.

The statutory ⁵⁰² “rulebook” itself, unfortunately, is not totally free of ambiguity. Particularly vexing is that it is not always clear whether the assigned role of the judge is simply that of refereeing the play of the administrative agency or is one involving the actual participation of the judge in the game itself. The Initial Commitment For the appellant, Sherwood Byers, Jr., how he got in to the custody of the Department poses no present problem. He was originally convicted in the Circuit Court for Prince George’s County on January 30, 2007, for first-degree assault in a court trial on an agreed statement of facts.

On February 27, 2007, however, the original trial judge further found that the appellant had not been criminally responsible at the time of the crime. See Treece v. State, 313 Md. 665 , 547 A.2d 1054 (1988). Accordingly, the appellant was committed to the Department pursuant to §§ 3-109 and 3-112. See Pouncey v. State, 297 Md. 264, 266-69 , 465 A.2d 475 (1983).

Section 3-109(a) provides: (a) In general. — A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: (1) appreciate the criminality of that conduct; or (2) conform that conduct to the requirements of law. Section 3-112(a) provides: (a) In general. — Except as provided in subsection (c) of this section, after a verdict of not criminally responsible, the court immediately shall commit the defendant to the Health Department for institutional inpatient care or treatment. Untroubled by any foolish consistency, the appellant, once in, wanted out. What is literally before us on this appeal is the December 19, 2007, decision by the original trial judge to deny the recommendation of the Department that the appellant be discharged unconditionally.

The resolution of the appellant’s appeal from that denial requires a painstaking .examination of the statutorily mandated procedures governing ⁵⁰³ the release of a person previously committed to the Department. A First Application or a Later One? As we undertake that examination, two problems loom on our appellate horizon. There is first the problem of whether the denial of discharge now being challenged was 1) a denial of the first application for release or discharge or 2) a denial of a subsequent application.

It makes a big difference. Rules 3-114 through 3-118 prescribe the procedures for handling the initial application for release or discharge. Section 3-119, by sharp contrast, prescribes a distinct procedure for handling a subsequent application by the committed inmate. Section 3-120 prescribes a procedure for handling a subsequent application by the Department.

Perplexingly, the case before us tended to blur that distinction in sequencing, or, worse perhaps, failed to take cognizance of the fact that the distinction even existed. A Judicial Decision or an Administrative One? The second problem that looms, ominously, on our horizon goes to the very heart of what our appellate review should consist of. Are we, on the one hand, reviewing an essentially de novo judicial decision by the circuit court?

If so, there is a distinct set of rules of review that must be employed. Should that be the case, moreover, we are probably looking at an affirmance. Or are we, on the other hand, reviewing the circuit court’s handling of something in the nature of, even if not purely, an administrative appeal? Should that be the case, a very different set of rules of review comes into play.

Should that be the case, moreover, we are probably looking at a reversal. The litigants before us randomly wander back and forth across the line, however, sometimes invoking one set of rules and sometimes the other. Right and wrong are not moral absolutes. A decision may readily be either right or wrong depending on which set of rules we bring to bear on it.

Whether a judge is right or wrong, of course, all depends on what the judge is being asked ⁵⁰⁴ to do. Under Modality A, a typical review of an earlier administrative decision, the reviewing judge might well say, “I acknowledge that there was substantial evidence (although I personally wouldn’t believe it for a minute) to have permitted the agency legitimately to decide as it did. Therefore, I must, unhappily, affirm.” By contrast, under Modality B, a de novo decision on the ultimate merits, the same judge on precisely the same evidence might well say, “Although there was substantial evidence that could legitimately have ■ persuaded the agency to do what it did, it doesn’t persuade me. Therefore, I, happily, reverse.” Where the judge comes out on the issue is a function of where the judge goes in.

What must be determined in this case is not the abstract rightness of what the trial judge decided, but the very nature of the decision she was authorized to make. The hypothetical problem we pose in this case is very real. If, on the ultimate merits of whether this appellant “would not be a danger,” the judge in this case had been authorized to make that determination for herself, the judge would not have been in error in denying release or discharge and should be affirmed. If, on the other hand, the judge was required to decide the very different question of whether there was substantial evidence to have permitted the ALJ and the Board to reach the diametrically opposite conclusion, the judge’s decision would be in error and would have to be reversed.

What is critical is not the ultimate decision as an abstraction, but the type of decision being made. Even an impeccably correct decision that one is not authorized to make can be a case of being in the right pew but the wrong church. One final preliminary note: It is necessary that we undertake a close examination of all of Title 3 in its entirety because, on the critical question of whether the trial judge was authorized to make the final decision on the merits of the appellant’s discharge, there are in Title 3, to be sure, one or two oblique indications that the answer to that question is, “Yes.” Those indications, however, are outnumbered by a dozen other oblique indications that the answer is, “No.” To get an accurate count of the oblique affirmative indications ⁵⁰⁵ versus the oblique negative indications, we need to look at the statutory scheme in its totality. The Statutory Scheme The procedures by which one who has been committed to the custody of the Department of Health and Mental Hygiene may subsequently be released or discharged from that custody are all creatures of statute.

As we undertake a review of that statutory scheme, we must bear in mind that, although the caption of a case such as this would seem to indicate that it is a criminal case, a proceeding to release or discharge a person committed to the Department because of a finding of not criminally responsible is a civil proceeding. Harvey v. State, 51 Md.App. 113 , 114 n. 1, 441 A.2d 1094 , cert. denied, 293 Md. 616 (1982). The overall statutory plan calls for release or discharge to be a hybrid determination engaging both the executive branch and the judicial branch in the decisional process. Both the Department of Health and Mental Hygiene and the Office of Administrative Hearings act on behalf of the executive branch.

The circuit court acts for the judicial branch. Ideally, the statute should set out with precision the relationship and the rules for interaction between the two branches. The statute, however, does not always turn square corners. Title 3 maps out two different routes to release or discharge, one for the first-time application and another for subsequent applications by the committed person himself.

There is some overlap but there are significant differences. Sections 3-114 through 3-118 control the handling of a first application, as well as subsequent applications filed by the Department pursuant to § 3-120. Section 3-119 controls the handling of all subsequent applications by the committed person. An appreciation of the whole statutory scheme is important because each of the modalities sheds significant light on the other.

Section 3-119, for instance, provides two different forums for adjudicating the release or discharge. Subsection (b) provides an “Administrative procedure.” Subsection (c) provides a “Court procedure.” Subsection (a) ⁵⁰⁶ further provides that “a committed person may apply for release under either subsection (b) or (c) of this section, but not both” (Emphasis supplied). Section 3-119(b)(2), moreover, fleshes out the short-hand reference to “Administrative procedure” by applying to it the fuller provisions already spelled out for first-time applications by §§ 3-114 through 3-118. Reciprocally, any possible doubt about the essentially administrative character of §§ 3-114 through 3-119, arguably uncertain if those sections were looked at in a vacuum, is quickly dissipated by § 3-119(b)’s characterization of the whole § 3-114 through § 3-118 package as an “Administrative procedure.” Release or Discharge Generally Section 3-114 governs release generally and is applicable to first-time applications and subsequent applications alike.

Subsection (a) points out that the procedures that must be followed are spelled out in §§ 3-115 through 3-122. (a) In general. — A committed person may be released under the provisions of this section and §§ 3-115 through 3-122 of this title. Subsection 3-114(b) sets out the controlling criterion for an unconditional discharge. (b) Discharge. — A committed person is eligible for discharge from commitment only if that person would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others if discharged.

(Emphasis supplied). Subsection 3-114(c) parallels subsection (b) except that it recognizes the possibility of conditions being imposed on a release by the court. (c) Conditional release. — A committed person is eligible for conditional release from commitment only if that person would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of ⁵⁰⁷ others if released from confinement with conditions imposed by the court. (Emphasis supplied).

Subsection (d) then establishes that the burden of proof to establish eligibility for discharge or conditional release is allocated to the person seeking such release. It places on the “committed person,” as the proponent of the motion, the ordinary civil burden of persuasion. (d) Burden of proof. — To be released, a committed person has the burden to establish by a preponderance of the evidence eligibility for discharge or eligibility for conditional release. (Emphasis supplied).

Realistically, subsection (d) treats the committed person as the proponent even if the application for release has been brought by the Department. Subsections 3-115 through 3-122 then spell out the procedures by which a discharge or conditional release is to be adjudicated. Prior to their recodification as part of the Criminal Procedure Article, through ch. 10 of the Acts of 2001, these provisions were found in the Health-General Article as §§ 12-114 through 12-121. The revisor’s notes to the recodification point out that the changes, if any, were only of style and not of substance.

These procedural provisions, in their earlier manifestation, were first made a part of Maryland law when ch. 501 of the Acts of 1984 completely revised Maryland’s insanity laws. In Anderson v. Department of Health and Mental Hygiene, 64 Md.App. 674, 681 , 498 A.2d 679 (1985), reversed on other grounds, 310 Md. 217 , 528 A.2d 904 (1987), Judge Wilner noted the significance of the 1984 Act. Much of this procedure changed in 1984, with the enactment of 1984 Md. Laws, ch. 501. In the aftermath of the celebrated trial of John Hinckley, the Governor created a Task Force to Review the Defense of Insanity.

Ch. 501 is largely the product of that Task Force. Although the 198b Act completely rewrote title 12 of the Health-General article (which, by virtue of Code Revision had supplanted former art. 59 in 1982), a great deal of the ⁵⁰⁸ existing law was unchanged. The insanity defense was retained, as were the substantive tests or standards of competence to stand trial, criminal responsibility, and eligibility for release following an adjudication of insanity. (Emphasis supplied).

In its Anderson v. Department, 310 Md. at 221-22 , 528 A.2d 904 , the Court of Appeals, through Judge Eldridge, also reviewed these procedural provisions. Ch. 501 of the Acts of 1984 abolished the rule that in the criminal trial the State had the burden of establishing the defendant’s sanity. Section 12-109 of the Health-General Article (1986 Cum.Supp.) now provides: “(b) Burden of proof. — The defendant has the burden to establish by a preponderance of the evidence, the defense of not criminally responsible.” Chapter 501 also eliminated the initial commitment examination and hearing procedures; instead it contained an automatic commitment requirement. Section 12-lll(a) [now CP, § 3-112(a) ] provides that “after a verdict of not criminally responsible, the court immediately shall commit the defendant to the Department for institutional, inpatient care or treatment. ” This automatic commitment continues indefinitely until the criminal defendant prevails at an administrative proceeding or a judicial release hearing or obtains a writ of habeas corpus.

Lastly, Ch. 501 abolished the requirement that, in an administrative release hearing, the State has the burden of proving the necessity for the criminal defendant’s continued commitment. Section 12-113(d) now places the burden of proof on the defendant to show by a preponderance of the evidence that he no longer meets the standards for commitment. Thus, under the new statute, the criminal defendant must prove his eligibility for release whether in a judicial proceeding or an administrative proceeding. (Emphasis supplied).

In his Anderson opinion, Judge Wilner also examined the now prevailing procedures for discharge or conditional release. ⁵⁰⁹ A similar shift in burden of proof was made with respect to both the initial commitment proceeding and a subsequent bi-level proceeding for release. Under new § 12-111, a defendant found not criminally responsible is automatically committed to DHMH for institutional inpatient treatment; under § 12-113 [CP, § 3-11U], he is eligible for release only if he would not be a danger to himself or to the person or property of others, and “[t]o be released, a committed individual has the burden to establish by a preponderance of the evidence eligibility for discharge or eligibility for conditional release.” Section 12-114 [CP, § 3-115] requires that, within 50 days after initial commitment, a hearing must be held before a DHMH hearing officer, “to consider any relevant information that will enable the hearing officer to make recommendations to the court as to whether the committed individual is eligible for release under § 12-113----” At the conclusion of the hearing, the hearing officer prepares and sends to the court a report containing (1) a summary of the evidence presented at the hearing, (2) “[rjecommendations of the hearing officer as to whether the individual proved, by a preponderance of the evidence, eligibility for conditional release, or eligibility for discharge,” and (3) if the hearing officer determines that the defendant “proved eligibility for conditional release,” the recommended conditions of the release. See § 12-115. 64 Md.App. at 683 , 498 A.2d 679 (emphasis supplied). Prompt Consideration of Possible Release It is § 3-115 that automatically provides for a prompt release hearing to be conducted by the Office of Administrative Hearings.

That is a hearing conducted within the confines of the Executive Branch of government by an Administrative Law Judge (“ALJ”). Subsection (a) provides that the function of the ALJ is “to make recommendations to the court” with respect to eligibility for release. (a) When required. — Within 50 days after commitment to the Health Department under § 3-112 of this title, a hear ⁵¹⁰ ing officer of the Health Department shall hold a hearing to consider any relevant information that mil enable the hearing officer to make recommendations to the court as to whether the committed person is eligible for release under § 3-114 of this title. (Emphasis supplied).

Subsection (b) provides that the initial release hearing before the ALJ may be postponed 1) “for good cause” or 2) by the “agreement of the committed person and the Health Department.” The initial hearing may, moreover, be waived by the committed person. Absent an affirmative waiver, however, a hearing will automatically be scheduled. The 50-day time limit for the hearing is, subject only to subsection (b), mandatory. Cf.

Harvey v. State, 51 Md.App. 113 , 441 A.2d 1094 , cert, denied, 293 Md. 616 (1982). This is not the case with respect to subsequent applications for release or discharge by a committed person. Even if the initial hearing is waived, subsection (c) directs that the Department shall complete an examination and shall prepare an evaluation report, a copy of which shall be sent to 1) the committed person, 2) counsel for the committed person, 3) the State’s Attorney, and 4) the Office of Administrative Hearings. Subsection (e) then sets out the requirements for the conduct of the hearing before the ALJ.

(e) Conduct of hearing. — (1) Formal rules of evidence do not apply to the release hearing, and the office may admit and consider any relevant evidence. (2) The hearing shall be recorded, but the recording need not be transcribed unless requested. The requesting party shall pay the costs of the transcript and, if exceptions have been filed, provide copies to other parties and the court. If the court orders a transcript, the court shall pay the costs of the transcript.

(3) Any record that relates to evaluation or treatment of the committed person by this State shall be made available, on request, to the committed person or counsel for the committed person. ⁵¹¹ (4) The Health Department shall present the evaluation report on the committed person and any other relevant evidence. (5) At the release hearing, the committed person is entitled: (i) to be present, to offer evidence, and to cross-examine adverse witnesses; and (ii) to be represented by counsel, including, if the committed person is indigent, the Public Defender or a designee of the Public Defender. (6) At the release hearing, the State’s Attorney and the Health Department are entitled to be present, to offer evidence, and to cross-examine witnesses. (Emphasis supplied).

It is what happens after the § 3-115 administrative hearing that creates the current problem. An Executive-Judicial Hybrid As we have pointed out, the administrative determination within the ranks of the executive branch that the committed person satisfies the criteria for release or discharge, even without any request for judicial review, is not self-executing. A judge must “sign off’ on the release or discharge. A judge, after all, “committed” the person.

Only a judge, therefore, may “uncommit” the person. The problem before us in this case is to decide whether that “signing off’ on the release decision by the judge 1) contemplates only a monitoring by the judge of the operation of the adjudicative machinery before the agency or 2) whether it contemplates an actual decision by the judge on the ultimate merits of the release. Sections 3-116, 3-117, and 3-118 in combination reveal an adjudicative procedure that is a curious executive branch-judicial branch hybrid. Although it will be our ultimate conclusion that the handling of the first application for release or discharge is unquestionably an “administrative procedure,” what is now before us is far from a pure administrative appeal.

In administrative law, if no petition for judicial review is taken by one of the parties, the administrative decision takes effect ⁵¹² and is a final resolution of the problem. In those cases where court intervention is requested, moreover, the judicial review is unquestionably deferential to the decision of the executive branch under scrutiny. That, however, is not necessarily the case before us. The preliminary decision of the ALJ or of the Department in this case is not even presumptively self-executing.

Those earlier actions within the executive branch are but antecedents to the final action which is for the court alone. After the ALJ has conducted a hearing, § 3-116 mandates that a report shall be prepared for forwarding to the court for its ultimate action. Unless and until the court acts, nothing is done. (a) In general. — Within 10 days after the hearing ends, the Office shall prepare a report of recommendations to the court that contains: (1) a summary of the evidence presented at the hearing; (2) recommendations of the Office as to whether the committed person proved, by a preponderance of the evidence, eligibility for conditional release or eligibility for discharge; and (3) if the Office determines that the committed person proved eligibility for conditional release, the recommended conditions of the release in accordance with subsection (b) of this section.

(b) Consideration of conditions for release. — In recommending the conditions of a conditional release, the Office shall give consideration to any specific conditions recommended by the facility of the Health Department that has charge of the Committed person, the committed person, or counsel for the committed person. (c) Copies of report. — The Office shall send copies of the report of recommendations: (1) to the committed person; (2) to counsel for the committed person; (3) to the State’s Attorney; (4) to the court; and ⁵¹³ (5) to the facility of the Health Department that has charge of the committed person. (d) Exceptions. — The committed person, the State’s Attorney, or the Health Department may file exceptions to the report of the Office within 10 days after receiving the report. (Emphasis supplied).

Because the ALJ and the Department do not even make a presumptively final decision but only “prepare a report of recommendations to the court,” it might at first glance appear that the court is simply utilizing the adjudicative machinery of the executive branch, to wit, the Office of Administrative Hearings, just as the court regularly utilizes adjunct adjudicative machinery within its own branch of government, to wit, preliminary fact-finding and recommendations by masters in chancery. In the latter case, the court is obliged ultimately to make its own independent decision and may, should it choose to do so, receive evidence, hear witnesses, and engage in its own de novo fact-finding. Section 3-117 makes it very clear, however, that the court possesses no such wide-ranging prerogatives when acting upon the recommendations of the ALJ. Section 3-117 provides that upon the court’s receiving the report of recommendations from the ALJ, the court may hold a hearing.

A significant limitation, however, is that the hearing shall be “on the record that was made before the Office.” Section 3-117, moreover, does not authorize the taking of evidence by the court itself. If the court needs more evidence, it must remand the case to the ALJ for that purpose. (a) In general. — Within 30 days after the court receives the report of recommendations from the Office: (1) the court on its own initiative may hold a hearing; or (2) if timely exceptions are filed, or if the court requires more information, the court shall hold a hearing unless the committed person and the State’s Attorney waive the hearing. ⁵¹⁴ (b) Conduct of hearing. — (1) The court shall hold the hearing on the record that was made before the Office. (2) At the judicial hearing, the committed person is entitled to be present and to be represented by counsel.

(3) The court may continue its hearing and remand for the Office to take additional evidence. (Emphasis supplied). Although ordinarily a judicial hearing might contemplate the possibility of taking evidence, such is not always or necessarily the case. There could well be a hearing for the more limited purpose of allowing counsel, in the presence of the parties, to clarify issues and to argue the law.

Such nonevidentiary hearings are frequently conducted on a motion to dismiss a pleading, a motion for summary judgment, or a variety of post-trial motions. As we examine the complete statutory scheme, subsection 3-117(b), prescribing he conduct of the possible hearing before the judge, is a strong indication that the basic release or discharge determination is intended to be an administrative decision to be made within the executive branch of government, subject only to judicial monitoring of its procedural propriety, and is not intended to be something that segues into an actual judicial determination on the ultimate merits. Subsection (b)(1), of course, mandates that the court hearing shall be “on the record that was made before the Office.” Most significantly, subsection (b)(3) then goes on to prescribe the steps that need to be taken in case further evidence should be needed. If the Legislature contemplated that the ultimate decision on the factual merits was to be made by the judge, both the more sensible and the more efficient procedure would be for the additional evidence to be presented before the court.

The judge would then be in the position to ask the clarifying and/or probing questions necessary to persuade the judge on the ultimate merits. The judge would be in the position to assess the credibility of the witnesses and to decide the relative weight to be given to the expert opinions of psychiatrists and ⁵¹⁵ psychologists. To permit the court, should it wish to do so, to conduct its own further evidentiary hearing would clearly be both faster and more efficient than to remand the case back to the Office of Administrative Hearings, to wait for an additional administrative hearing to be scheduled and held without the benefit of “the formal rules of evidence,” to wait for the ALJ to prepare a summary of the evidence and perhaps supplementary recommendations, and to have the entire package then returned to the court. The entire release or discharge procedural package, it must be remembered, is a creature of statute, and only those things may be done that are authorized by the controlling statute.

The circuit court is not in such a case exercising inherent common law powers. The statute in this regard does not provide for the taking of evidence or for any fact-finding to be engaged in by the court. The reason for this seems clear. If further evidence is required, that further evidence is not for the benefit of the court and is, therefore, not presented to the court.

It is for the benefit of the ALJ and is, therefore, presented to the ALJ. The judge’s role is only to determine, as a matter of law, whether the evidence before the ALJ was substantial enough to support the recommendation of the ALJ. This evidence-taking remand procedure, one that would otherwise be bizarre, buttresses our conclusion that, subject only to one situation yet to be discussed pursuant to § 3-119(c), the role of the judge in this entire statutory scheme is that of providing a mandatory judicial review of this particular variety of administrative decision (in this case, a recommendation) and not that of making a judicial decision on the ultimate merits. It remains a classic administrative appeal.

The penultimate piece in the statutory puzzle is § 3-118, spelling out what the judge must do after 1) receiving the recommendation from the Office and 2) holding a hearing unless the hearing is waived. In terms of the nature of the judge’s decisional responsibility, the statutory language is by no means free of ambiguity. In pertinent part for our present analysis, § 3-118 provides: ⁵¹⁶ (a) In general. — Within 15 days after a judicial hearing ends or is waived, the court shall determine whether the evidence indicates that the committed person proved by a preponderance of the evidence eligibility for release, with or without conditions, in accordance with § 3-114 of this title, and enter an appropriate order containing a concise statement of the findings of the court, the reasons for those findings, and ordering: (1) continued commitment; (2) conditional release; or (3) discharge from commitment. (b) Order without hearing. — (1) If timely exceptions are not filed, and, on review of the report of recommendations from the Office, the court determines that the recommendations are supported by the evidence and a judicial hearing is not necessary, the court shall enter an order in accordance with the recommendations within 30 days after receiving the report from the Office.

(2) A court may not enter an order that is not in accordance with the recommendations from the Office unless the court holds a hearing or the hearing is waived. (e) Appeals. — (1) An appeal from a District Court order shall be on the record in the circuit court. (2) An appeal from a circuit court order shall be by application for leave to appeal to the Court of Special Appeals. (Emphasis supplied).

Section 3-118(a) is perplexingly vague not only about what the judge is supposed to do but even vaguer about how the judge is supposed to do it. After stating the 15-day time limit within which the judge, after a hearing, must make a decision, the statute directs the judge to determine whether “the evidence indicates that the committed person proved by a preponderance of the evidence eligibility for release.” (Emphasis supplied). “Proved” to whom? To the ALJ? Or to the reviewing judge?

That language, even if unartfully expressed, ⁵¹⁷ might be taken arguably to mandate an inquiry into whether the committed person had met his burden of production at the earlier hearing before the ALJ by offering some substantial evidence in support of the ALJ’s finding. The reference, however, to “a preponderance of the evidence” is the classic language of persuasion. That language, standing alone, would seem to indicate that it is the judge who must be personally persuaded that release or discharge is called for rather than an indication that the judge must only be satisfied, as a matter of law, that the evidence was sufficient for the ALJ to have been so persuaded. Such a reading, however, would be a significant departure from conventional or routine judicial review of an administrative decision, wherein the judge is concerned only with the burden of production before the agency and not with the burden of persuasion before himself.

At the most fundamental level, it is unclear whether the statute implies that the judge must be persuaded “by a preponderance of the evidence,” or must simply decide, as a matter of law, whether the evidence before the ALJ was “substantial” enough to have permitted the ALJ to have been persuaded “by a preponderance of the evidence?” If it were the judge who had personally to be persuaded, what would the evidence be that might persuade the judge? The judge would have heard no witnesses and would not be in the ordinary posture for assessing credibility. The judge, conducting only a “hearing on the record that was made before the Office,” might have nothing more than the ALJ’s “summary of the evidence presented at the hearing” along with the “recommendations of the [ALJ].” Section 3-115(e) does not even require that a transcript of the hearing before the ALJ shall have been prepared, although it does require that the hearing shall have been recorded. Either party, of course, may have ordered a transcript and offered it before the judge.

Section 3-115(e)(2) further provides that “[i]f the court orders a transcript, the