OAH 4-1302-19919-2
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR
THE BOARD OF TEACHING
|
In the Matter of the Teaching
License of Julia O. Lund |
MOTION
IN LIMINE |
This matter is before Administrative Law Judge Bruce H. Johnson
on a Motion in Limine to Exclude Evidence brought by Julia O. Lund
(“Respondent”). Respondent’s motion was filed on November 10, 2008. The Board of Teaching (“Board”) filed a
response to Respondent’s motion on November 19, 2008 and Respondent filed her
reply to the Board’s response on December 2, 2008.
Christina L. Clark, Attorney for
Education Minnesota,
Based upon the record in this matter, the Administrative Law
Judge makes the following:
The Respondent’s Motion in Limine to
exclude records in the Board’s possession regarding Respondent’s criminal
investigation and 2007 court proceedings is DENIED.
Dated: December
10, 2008
s/Bruce
H. Johnson
|
BRUCE H.
JOHNSON Assistant
Chief Administrative Law Judge |
The
underlying action in this matter is a disciplinary proceeding by the Board
against Respondent based on alleged immoral conduct in violation of Minn. Stat.
§ 122.20 and Minn. R. 8700.7500. The
Board’s action arose after Respondent was charged with one count of third
degree criminal sexual conduct, and two later charges were added and then
dropped. Respondent was acquitted
following a jury trial. Respondent
petitioned for an Order for Expungement.
Her petition was granted and the
Respondent maintains
that any records in the Board’s possession relating to the criminal
investigation and subsequent court proceedings are inadmissible because of the expungement
order. Respondent claims that the
records are not the Board’s records because they were not generated by the
Board. Therefore, Respondent reasons, the
records are covered by the expungement order.
Furthermore, Respondent
asserts that her due process rights would be violated if the records are
admitted into evidence. Respondent
argues that allowing the records to be part of the Board’s case against her
would result in too great a risk of erroneously depriving her of her ability to
work as a teacher.
Section
609A.03, subdivision 3 requires a petitioner to
[s]erve . . . the petition for
expungement and a proposed expungement order on the prosecutorial office that
had jurisdiction over the offense for which expungement is sought and all other
state and local government agencies and jurisdictions whose records would be affected
by the proposed order.
Respondent states that her failure to serve the petition for
expungement and proposed order on the Board is “immaterial.”[3]
The language
of section 609A.03, subdivision 3 is unambiguous. If Respondent wanted the Board included in
the expungement order, she had to provide the Board with notice and include the
Board in the proposed order. If records
relating to a criminal investigation created by law enforcement but held by a
state or local agency were not considered records for purposes of the
expungement statute, there would be no need for the notice requirement
described in section 609A.03. The court
would merely have to serve a copy of its expungement order on the agencies and
jurisdictions holding copies of the affected records. Similarly, the many
The intent of
the parties was uncommonly clear at the hearing on this expungement
petition. Respondent’s prior attorney
stated on the record at that hearing:
[W]e are not asking that the Board
of Teaching records be expunged, because I don’t think the Court has any
authority over that anyway, and we’re not asking for a return of any of the
police reports that went to the Board of Teaching, I think [the county
attorney], under those circumstances, is not opposing our Petition for
Expungement, Your Honor.[5]
It is clear from this statement that the court’s order did
not accidentally overlook the Board of Teaching. The parties explicitly agreed in open court
that the records held by the Board were not included in the order and the
language of the order is consistent with that agreement.[6]
Respondent’s
due process concerns are not well-founded.
The Board’s disciplinary action will be tested in a contested case
hearing. Respondent can challenge any
evidence introduced by the Board, cross-examine the Board’s witnesses, and
present evidence on her own behalf. The
Administrative Law Judge will determine the admissibility of any evidence the
Board introduces, as well as the weight given to that evidence. The contested case hearing will provide
Respondent all appropriate and required due process protections.
Finally,
Respondent expressed concerns about the sensitivity of some of the records
which the Board may seek to introduce.
The Administrative Law Judge will consider any motion either party may
bring seeking a protective order pursuant to Minn. Stat. § 14.60, subd. 2 to
seal a part of the hearing record containing not public data.
Because
Respondent’s petition for expungement and the resulting expungement order did
not include records in the possession of the Board of Teaching, Respondent’s
Motion in Limine to exclude those records is denied.
B. H. J.
[1]
Respondent’s Motion in Limine at pages
1-2. See
Board’s Memorandum in Opposition to Respondent’s Motion in Limine, Attachment
A, State of Minnesota v. Julia Ozirski
Lund, Carver County Court File No. 10-CR-06-1117, Order for Expungement.
[2]
[3]Respondent’s Reply Memorandum in Response to Board’s
Memorandum in Opposition to Motion in Limine at page 2.
[4] See,
[5]
Board’s Memorandum in Opposition to Respondent’s
Motion in Limine, Attachment B at page 2.
[6]
Board’s Memorandum in Opposition to
Respondent’s Motion in Limine, Attachment A.