Legalectric

Here’s the OAH panel’s decision on Overland v. Gary Iocco for Mayor #3 — DISMISSED:

Aspects of this Order are bizarre. Iocco’s testimony that he’d paid the November 1, 2024 Wylie Wilson Trucking invoice “just before the hearing” in February, over three months overdue, was NOT credible. He offered zero evidence that it’d been paid, in fact he’d offered not a single piece of evidence in this Complaint #3 or Complaint #2 either. He’d not responded to Discovery in either docket, and I should have filed a Motion to Compel, but too much going on, no time.

And regarding ALJ Mortenson? I’ve posted about this before… This is the same Administrative Law Judge threatened the “Union Intervenors” with unauthorized practice of law… veiled threat? No, it was overt. He had to take the action of looking beyond the simple and very clear OAH Rules to find Minn. Stat. § 481.02 and Minn. Stat. § 481.02, subd. 3(5) (2022) that clearly allow non-attorneys to practice, and he said citing an inapplicable statute considering the Office of Administrative Hearings rules:

In short, while the Judge does not intend to manage the practice of law in this matter, parties should be aware that potential issues could arise for non-lawyers who are not statutorily exempted from the general prohibition of non-lawyer practice of law in Minn. Stat. § 481.02. The Lawyers Professional Responsibility Board may be a resource for more information on this topic.

Order_Granting-Union-Intervention_20241-202712-01 Download

Really, that’s a quote from his order — and no, it’s not a “helpful cautionary warning” — check this footnote, the full text from that Order:

Hard to imagine how the rules could be more clear:

So based on that bizarre statement, which is contrary to the OAH rules, I filed this and copied the OAH Chief Judge:

I’m sure that went over well, but threats like that should not slide by…

There was also an issue in the Freeborn County Wind transmission docket, where ALJ Mortenson resisted swearing in my client group members on oath, those many folks in red, and others as well. I’d reported on this at the time:

Before that Freeborn hearing started, I’d approached the ALJ and requested that he swear people on oath or affirm, and he said something to the order of “Oh, I remember you” as I’d requested that before.  He didn’t want to put people under oath.  I reiterated that I’d been present, twice, at Commission meetings where Commissioners asked if specific testimony had been provided under oath, and that where testimony was not under oath, they gave it less weight, as allowed by the rules. Those rules do provide for testimony under oath as an option, so I wanted to assure that’s not an issue.  The ALJ was not happy, but essentially agreed to swear people in if so requested.  AAAAAAAAAAAAAARGH!

The rules? Minnesota Rules include swearing in as a duty of the ALJ:

1400.5500 DUTIES OF ADMINISTRATIVE LAW JUDGE.

Consistent with law, the judge shall perform the following duties:

…  F. administer oaths and affirmations;

That’s a “shall.”

Minnesota Rules have many provisions regarding being sworn in, and the necessity of testimony under oath for consideration regarding “a fact at issue” in a contested case hearing:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Minn. R. 1400.7800(g).  That’s another “shall.”  Here are a few more citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

1400.7800 CONDUCT OF HEARING, Subp. G.  Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

1405.0800 PUBLIC PARTICIPATION, Subp. B.  … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.

Oath?  Affirmation?  This is not something anyone should have to push about… but we did, and each of those public witnesses made their statements under oath. Every Association of Freeborn County Landowner participant requested to be sworn on oath and was.  And for the record, not one of the Invenergy/Freeborn Wind Project witnesses speaking in support of the project requested to be sworn on oath, not one of them made their statements under oath.

This background is why I chose to challenge the ALJ. If I had misinterpreted that “question,” that would have been said that day on the record, the “other” case would have been cited, and I would have been in deep doo-doo. It was not. BUT, I’ll have to listen to the tape. I do note though that instead of going forward with the statement before the break that I’d threatened the judge and violated the Rules of Professional Responsibility, it became a matter of whether my comments were a Motion to Recuse, a 180 turn-around. That limbo is not a comfortable place to be, but given past experience, I took that risk.

This Complaint #3 was dismissed. Note that this Complaint was not deemed frivolous, and that most importantly, there were no sanctions.

Win some, lose some.

I hope future candidates will pay attention and follow the law!!