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15-0320-21579-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Patricia Anderson, Complainant, vs. Rebecca Otto, and Rebecca Otto for Auditor, Respondents. |
ORDER
ON RESPONDENT’S MOTION FOR IN-PERSON PROBABLE CAUSE HEARING AND TO
CROSS-EXAMINE COMPLAINANT |
TO: Patricia Anderson and her attorney, Edward T.
Matthews; and Rebecca Otto, and Rebecca Otto for Auditor, and their attorneys David
Lillehaug and Christopher A. Stafford, Fredrikson & Byron, P.A.
The Probable Cause Hearing in this matter is scheduled for October 4, 2010. On September 30, 2010, Respondent Rebecca Otto submitted a letter motion requesting: 1) that the Probable Cause Hearing be conducted in-person instead of by telephone; and 2) that Respondent be able to cross-examine Complainant and confront her with documents and a video clip.
Based upon the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED:
1. That the probable cause hearing will be conducted at the Office of Administrative Hearings.
2. That the Respondent will be permitted to cross-examine the Complainant if she testifies in support of the Complaint. Respondent will not be allowed to call Complainant as a witness or compel her presence at the hearing.
Dated: September 30, 2010
s/
Beverly Jones Heydinger
BEVERLY JONES HEYDINGER
Administrative Law Judge
In-Person Hearing
Respondent has requested that the hearing be conducted in-person rather than by telephone. Probable cause hearings under Minn. Stat. § 211B are customarily conducted telephonically. Respondent, however, has indicated that she wishes to produce documents and possibly a video at the hearing. The Administrative Law Judge will hold the hearing in-person to accommodate her request. The Administrative Law Judge notes that the parties and their attorneys are located in the metropolitan area. Their appearance at the hearing will not cause any undue hardship.
The Respondent should bring copies of any video offered during the hearing for the Administrative Law Judge and Complainant. Respondent should also bring any equipment necessary to play and project the video.
Request to
Cross-Examine Complainant
Respondent has also requested that she be able to cross-examine the Complainant. Respondent cites to Minn. R. Crim. P. 11.03, which provides that during a probable cause hearing the court may “receive such evidence as may be offered in support or opposition,” and that each party may “cross-examine any witnesses produced by the other.” Respondent argues that Complainant has already been produced as a witness because part of the record evidence is the Complaint itself, which Complainant verified under oath. The Administrative Law Judge disagrees.
In a probable cause hearing, due process does not require “the full panoply of adversarial safeguards such as witness confrontation, cross-examination, and compulsory process for witnesses.”[1] In the criminal context, defendants have a limited right to call witnesses at a probable cause hearing.[2] “The probable cause hearing should not be used as a substitute for disclosure and discovery and the legitimate concern of the defendant to know the case against him before trial should be dealt with by other means.”[3]
Here, the statute does not contemplate the compulsion of witnesses at probable cause hearings. Minn. Stat. § 211B.36, subd. 4, provides that the administrative law judge must hold a probable cause hearing on the complaint no later than three business days after receiving the assignment if an expedited hearing is required. The statutory timeframe effectively precludes the issuance of subpoenas to compel the attendance of witnesses.
Finally, Respondent is not entitled to cross-examine the Complainant merely because the Complainant verified the complaint. The Complaint includes approximately 200 pages of attachments and an extensive narration of the alleged violation. At this stage, the judge must determine if the Complaint is supported by sufficient evidence to overcome a motion to dismiss. The Complainant may testify at this stage, but she is not required to do so, nor is she compelled to appear at the hearing (as long as her attorney appears on her behalf). If the Complainant testifies on her own behalf, Respondent may cross-examine her. Respondent may not call her to testify.
The purpose of a probable cause determination is to determine whether, given the facts disclosed by the record, it is fair and reasonable to hear the matter on the merits.[4] A judge’s function at a probable cause hearing does not extend to an assessment of the relative credibility of conflicting testimony. As applied to these proceedings, a probable cause hearing is not a preview or a mini-version of a hearing on the merits; its function is simply to determine whether the facts available establish a reasonable belief that the Respondents have committed a violation. At a hearing on the merits, a panel of judges will consider the alleged violations with the benefit of a fully developed record and the opportunity to gauge the credibility of witnesses. The panel will make its determination based on the record as a whole and the applicable evidentiary burdens and standards.
B. J. H.