December 13, 2002

 

 

Michael Baxter, Esq. 14501 Granada Drive Apple Valley, Minnesota 55124

Wade A. Kish Assistant Mille Lacs County Attorney 525 Second Street Southeast Milaca, Minnesota 56353

 

          Re:     In the Matter of the Immediate Suspension of the Family Child

Care License of Valerie Palmquist; OAH Docket No. 7-1800-14359-2

 

Dear Counsel:

 

          Please allow this letter to serve as the Order of the Administrative Law Judge on the County’s Motions In Limine and Mr. Baxter’s response to those Motions.  I took the matter under advisement and considered the issues raised.  I will address the issues in the sequence presented in the County’s Prehearing Motions filing:

 

1.              The Motion to Suppress for Lack of Compliance with the Disclosure Rule is DENIED.  The problem presented in this regard has been cured by the lengthy stay in the proceedings.  It is Judge’s best information and belief that the Respondent has filed discovery responses and served them on the County.  It appears the County has suffered no prejudice and the Motion to Suppress is denied accordingly.

2.              The Motion for Finding that Reasonable Cause Exists is GRANTED.  The Licensee’s objection due to a reliance on documentary evidence is misplaced.  Reasonable cause merely means “some evidence” that is not inadequate, on its face, to support a conclusion that the allegation may be true.  The purpose of the reasonable cause provision in the licensing statutes is to determine who bears the burden of proof, and it is understood that the evidence relied upon is, at this stage, less than a preponderance of the evidence.

3.              The Motion to Admit Prior Statements of the (Alleged) Victim is GRANTED.  Previous consistent statements made by the alleged victim in this matter regarding the criminal acts alleged in the complaint are admissible, unless they are too prejudicial and unreliable to be accorded any weight.  The Statements will be dealt with on an individual basis.  Any previously-videotaped statements by the alleged victim will also be considered in the same manner.

4.              The Motion to Exclude Defense Witnesses is DENIED.  The basis for this Motion appears no longer to exist, since the Licensee has now notified the County of the identity of her witnesses.

5.              The Motion to Deny Competency Hearing is GRANTED.  It appears that the District Court has ruled already that the alleged victim was not competent to testify.  It is normal practice to use evidence other than the testimony of children in matters such as this, and the Administrative Law Judge is unaware of any reason to differ from that practice in this case.  But if the alleged victim is called to testify, I will decide whether it is appropriate to proceed with such testimony and, if such testimony is taken, I will give it the appropriate weight.

6.              The Motion to Deny Alibi Evidence is DENIED.  No basis exists for denying any defense that Licensee offers in good faith.

7.              The County’s preliminary motion to deny the Licensee the opportunity to introduce evidence regarding prior reports or exposure of the victim to criminal sexual activity, or to suppress an attempt by the Licensee to show evidence of fabrication or an alternate source is DENIED.  It has not been demonstrated that the County would be prejudiced by the presentation of such evidence.

8.              The Administrative Law Judge will allow the presence of an appropriate support person if the alleged victim testifies.

9.              The County’s request that witnesses be sequestered is GRANTED.  The Licensee may be present through the entire proceeding.

10.          Regarding the concerns raised in paragraphs 10-12, on the offering of personal opinions of counsel, comments about witnesses made by counsel and the possible consequences of orders adverse to the Licensee, the Administrative Law Judge intends to ignore, whenever appropriate, personal opinion or comments regarding the failure to call certain witnesses.  At the same time, the Judge expects counsel to argue appropriately, and will entertain objections as needed.  The Licensee’s counsel has the right to argue the consequences of any decision based on the facts as presented at trial.

 

Please take note that the hearing will begin in Milaca on Wednesday, December 18, 2002, at 11:00 a.m., due to a conflict in the Judge’s schedule that prevents him from starting the matter at 10:00 a.m. (which was scheduled originally).  I look forward to seeing you all next week.

 

                                                                      Very truly yours,

 

                                                                      /s/ Richard C. Luis

                                                                      RICHARD C. LUIS

                                                                      Administrative Law Judge

 

RCL:mo                                                          Telephone: (612) 349-2542

 

cc:      Matthew M. Quinn, Assistant Mille Lacs County Attorney