1-1004-14523-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF COMMERCE

 

In the Matter of the Barberton Rescue Mission, Inc., Christian Brotherhood Newsletter, aka CBN and Christian Brotherhood Newsletter, Inc., aka CBN, Inc.

ORDER

          On December 20, 2002, John and Lynne Cooke filed a Petition to Intervene in this matter seeking full party status.  The Department of Commerce filed objections to the petition on January 3, 2003.  The respondents and the petitioners filed a reply to the objections on January 16, 2003.  The Department filed a response on January 17, 2003.

          The petitioners are represented by William M. Hart, Esq., and Jenneane L. Jansen, Esq., of the firm of Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, Minnesota 55402.  The Department is represented by Jennifer S. Kenney, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130.  The respondents are represented by Jeffery J. McNaught, Esq., of the firm of Lindquist & Vennum, 4200 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402-2274. 

          Based upon the submissions by the parties, and for the reasons set out in the attached Memorandum,

          IT IS FURTHER ORDERED:

1.     That the Petition to Intervene as a party with all the rights of a party is denied.

2.     That the petitioners may file a written brief on the constitutional issues they raise without acquiring the status of a party.

 

 

Dated this 23rd day of July, 2003

 

 

                                                                      S/George A. Beck

                                                                      GEORGE A. BECK

                                                                      Administrative Law Judge

 

         

 

MEMORANDUM

 

          This administrative proceeding was initiated on June 20, 2001, when the Department issued a Cease and Desist Order against the Christian Brotherhood Newsletter alleging that it was engaging in the business of insurance without being properly licensed.  After a hearing was requested, the Department issued a Notice of an Order for Hearing on October 25, 2001.  The parties have been engaged in an extensive discovery schedule which included an Order Compelling Discovery by the respondents.  The discovery schedule was extended and the parties completed all written discovery and depositions during the week of December 9, 2002.  At present a Cross Motion for Summary Disposition is due February 18, 2003 and Reply Briefs are due March 18, 2003. 

 

          Petitioners are Minnesota residents and devote Christians who have been subscribers to the Christian Brotherhood Newsletter since February of 1990.  They believe that subscribing to the newsletter allows them to practice their Christian faith by helping other individuals who are also of the Christian faith.  They state that the Department’s allegation that the newsletter is transacting the business of insurance interferes with their rights of freedom of religion and freedom of association.  They also allege that their privacy rights under Minn. Stat. Ch. 13 may be directly affected by this contested case proceeding.  They state that the end of the newsletter’s mission in Minnesota would cause them harm by imposing government regulation of their Christian gift sharing practices and beliefs.  They do not believe that the respondents adequately represent their viewpoint and seek full party status.

 

          The OAH intervention rule, Minn. Rule Part 1400.6200 provides in part as follows:

 

Subp. 1.  Petition.  Any person not named in the notice of hearing who desires to intervene in a contested case as a party shall submit a timely written petition to intervene to the judge and shall serve the petition upon all existing parties and the agency.  Timeliness will be determined by the judge in each case based on circumstances at the time of the filing.  The petition shall show how the petitioner’s legal rights, duties, or privileges may be determined or affected by the contested case; shall show how the petitioner may be directly affected by the outcome or that petitioner’s participation is authorized by statute, rule, or court decision; shall set forth the grounds and purposes for which intervention is sought; and shall indicate the petitioner’s statutory right to intervene if one should exist….

 

Subp. 3.  Order.  The judge shall allow intervention upon a proper showing pursuant to Subp. 1 unless the judge finds that the petitioner’s interest is adequately represented by one or more parties participating in the case.  An order allowing intervention shall specify the extent of participation permitted the petitioner and shall state the judge’s reasons.  A petitioner may be allowed to:

 

A.    file a written brief without acquiring the status of a party;

B.    intervene with all the rights of a party; or

C.    intervene as a party with all the rights of a party but limited to specific issues and to the means necessary to present and develop those issues.

         

          The Department argues that its regulation of an unlicensed insurance company will not affect the petitioners’ spiritual beliefs.  It states that it cannot regulate the petitioner’s desire to share gifts with other Christians but that it simply seeks to regulate the way in which respondent’s business operates.  The Department also cites case law suggesting that the First Amendment’s protection of religious freedom may not always prevail where the state has a compelling government interest in regulation.[1]  However, these arguments are addressed to the merits of the constitutional claim and do not determine whether the petitioners have satisfied the standards for intervention.[2] 

 

          It seems clear that the petitioner’s legal rights may be directly affected by the outcome of this contested case proceeding. If the newsletter is found to be an unlicensed insurance company, it would be ordered to cease operations and this would prevent the newsletter from facilitating the Cooke’s practice of sharing gifts with other Christians.  Intervention may be based on noneconomic interests such as constitutional rights.[3]  Based upon the petitioner’s religious beliefs, their long-standing relationship with the newsletter and their interest in continuing that relationship, they have demonstrated that their legal rights may be directly affected by the outcome of this case.

 

          The petitioners also argue that they have privacy interests that support intervention.  The Department sought and obtained the names of Minnesota subscribers to the newsletter during discovery.  However, all of the discovery in this contested case proceeding has now been completed.  As a part of a discovery motion, a Protective Order was issued by Judge Nielson which limits the Department’s use of the information disclosed by respondents, such as that concerning subscribers like the petitioners, to the pending case.  Once this case is concluded, all such documents and copies must be returned to the respondents.  Judge Nielson’s order determined that it had not been shown that it was likely that newsletter subscribers would be affected by the release of information about them.  The Administrative Law Judge concludes that the petitioner’s privacy concerns are adequately protected by Judge Nielson’s order.  Should they appear as witnesses, they would be able to request further protection of data relating to them. 

 

          The petitioners must also demonstrate that their interest is not adequately represented by another party and that their petition is timely.  The Department argues that the respondents are making the same constitutional objections that the petitioners seek to make.  It points out that petitioners are listed as witnesses in this case and will present evidence in that fashion.  The petitioners argue, however, that only they can make an adequate factual basis about their own individual and personal Christian faith and the effect of the Department’s action on their beliefs and practices.  The respondents also assert that the Newsletter cannot protect the individual interests of any particular subscriber and note that they cannot hold legally privileged communications with the petitioners. 

 

          The petitioners’ and the respondents’ interests are so closely aligned that it must be concluded that the petitioner’s interest is adequately represented by the respondents.  Certainly they have the same interest in the outcome of the case, namely that the respondents be allowed to continue their operation in Minnesota.  It also seems reasonable to assume that the respondents will not ignore the petitioner’s religious and consumer interests in presenting their testimony in this forum.  The petitioner’s interest can be adequately protected by the filing of a written brief without acquiring the status of a party.[4]  Their interest in the constitutional issues involved in this case can be presented through a brief with minimal factual development.  It should also be noted that neither the Administrative Law Judge nor the Commissioner of Commerce has jurisdiction to determine whether or not a statute is unconstitutional on its face. 

 

          The timeliness of a petition to Intervene is determined in each case based upon the circumstances at the time of filing.  This petition has not been shown to be timely.  Generally, the criteria to be considered includes how far the case has progressed at the time the petition is filed, and whether intervention will cause undue delay, or whether it would have other significant adverse results to the original parties.[5]  A Notice of an Order for Hearing was issued on October 25, 2001.  The petitioners were listed as witnesses by the respondents on April 30, 2002.  Counsel for petitioners announced their intention to intervene by letter on November 6, 2002.  Yet the petition was not filed until December 20, 2002.  This was the case despite the Administrative Law Judge providing a copy of the Revised Scheduling Order dated November 8, 2002 to counsel for the petitioners.  The Revised Scheduling Order provided that remaining documents were to be provided by November 14, 2002, and depositions to be completed by the week of December 9, 2002.  The petitioners suggest that their participation as a party will not create delay.  However, they do request “a few months in which to get their bearings” and decide what discovery they might wish to seek.  They would then seek a period of time to make their own exchanges of written discovery with the other parties before briefing dispositive motions.  This would create a significant and unjustified delay in this proceeding, which would be prejudicial to the Department. 

 

          Although the petitioners note that the Cease and Desist Order in this matter limits the newsletter operations in Minnesota, the newsletter is still presently allowed to continue to collect and distribute money from and to its current Minnesota subscribers.  A significant delay, such as proposed by the petitioners, could potentially have a significant effect on the interests that the Department is proposing to protect. 

 

          Both the petitioners and the respondents requested a hearing on the petition and the responses by the parties.  The OAH rule provides for a hearing only where necessary to develop a full record and more specifically to determine standards that will apply to each category of intervenor and to define the scope of intervention.[6]  A hearing is not necessary to a complete record since both of the petitioners and the Department have filed two lengthy written submissions and the respondents have made one submission.  The requests do not indicate how a hearing will develop a full record and a hearing would also contribute to further delay in this matter.  The request is therefore denied.

 

          The interests advanced by the petitioners can be adequately advanced by filing a written brief without acquiring the status of a party.  The constitutional arguments can be fully argued in a brief.  The brief will be due February 18, 2003.  This means of participation is especially appropriate due to the untimeliness of the Petition to Intervene.

GAB