Rulemaking on OAH Process & Procedure
July 22nd, 2012
Well, folks, here we go, just got notice TODAY from Judge Lipman of the rulemaking at Office Administrative Hearings. Send Comments to:
Honorable Eric L. Lipman, Assistant Chief ALJ
St. Paul, Minnesota 55164-0620,
Electronic Mail: eric.lipman@state.mn.us
Here’s the “purpose” according to OAH (listed in numbers, not letters):
The purpose of these draft revisions to Parts 1400 and 1405 is to:
- streamline hearing procedures across different types of administrative proceedings;
- leverage the broader familiarity with contested case procedures to improve predictability in the hearing process for other types of cases;
- better reflect contemporary hearing practice and the technological changes occurring since September of 2001 (when the last revision of OAH’s procedural rules was completed); and
- improve predictability in the hearing process by more closely aligning OAH’s procedures with the General Rules of Practice of the District Courts.
I have a vested interest in this because I’d filed a Rulemaking Petition ages ago:
That was March, 2011, IT TOOK A YEAR AND A HALF!
Here are a few things I hope you’ll look at — the parts cited with a page number are from the OAH Rulemaking Draft Changes:
- Draft Changes, p. 2, definitions of Participant and Person – narrowing definition of person:
As proposed, on p. 4:
20 Subp. 6a. Participant. “Participant” means a nonparty who:
21
22 A. files comments or makes a formal appearance in a
23 proceeding authorized by the Minnesota Public Utilities
24 Commission, other than those commission proceedings that
25 are conducted to receive general public comments; or,
26
27 B. with the approval of judge, offers testimony or
28 evidence pursuant to part 1400.7150 or 1400.8605.37 Subp. 8. Person. “Person” means any individual, business,
38 nonprofit association or society, or governmental entity.
As found in the PUC’s Rules, Minn. R. 7829.0100, Subp. 13 and 15:
Another in a trend of limiting participation by the public, QUESTIONING WITNESSES IS OUT – SAY WHAT???? See Draft Changes, p. 14-15 (see also p. 59-60):
45 Subp. 5. Participation by public. The judge may, in the
46 absence of a petition to intervene, nevertheless hear the1 testimony and receive exhibits from any person at the
2 hearing, or allow a person to note that person’s appearance,
3 or allow a person to question witnesses, but no person shall
4 become, or be deemed to have become, a party by reason
5 of such participation. Persons offering testimony or exhibits
6 may be questioned by parties to the proceeding.
Where then PUC’s rules provide for much more — check out current Minn. R. 1405.0800, which they want to just ELIMINATE! It starts here:
Here’s one of the really limiting changes that is NOT OK:
20 1405.0800 PUBLIC PARTICIPATION.
21
22 At all public hearings conducted in proceedings pursuant to
23 an order of the Commission parts 1405.0200 to 1405.2800,
24 all persons will be allowed and encouraged to participate
25 without the necessity of intervening as parties. Such
26 participation shall include, but not be limited to:
27
28 A. offering testimony or other material at the public
29 hearing;
30
31 B. questioning any agency official or agent of an
32 applicant who participates in the public hearing; or,
33
34 C. offering testimony or other material within the
35 designated comment period.
36
37 A Offering direct testimony with or without benefit of oath or
38 affirmation and without the necessity of prefiling as required
39 by part 1405.1900.
40
41 B. O offering direct testimony or other material in written
42 form at the public hearing or within the designated comment
43 period following the hearing. However, testimony which is
44 offered without benefit of oath or affirmation, or written
45 testimony which is not subject to cross-examination, shall be1 given such weight as the administrative law judge deems
2 appropriate.
3
4 C. Questioning all persons testifying. Any person who
5 wishes to cross-examine a witness but who does not want to
6 ask questions orally, may submit questions in writing to the
7 administrative law judge, who will then ask the questions of
8 the witness. Questions may be submitted before or during
9 the hearings.
Comments are due by 4:30 p.m. on Wednesday, October 31, 2012. Guess they’re in no hurry here!
From the notice:
Another odd thing from the notice, as this is a PRE-Rulemaking Comment Period: