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OAH 2000-21209-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES
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In the Matter of the Appeal
of the Notice of Seizure and Intent To Forfeit Firearm, CF No. 366052 &
366053 |
NOTICE OF PREHEARING CONFERENCE AND
NOTICE OF HEARING |
PLEASE BE ADVISED that a prehearing
conference will be held by telephone conference call on April 27, 2010, beginning at 2:00 p.m. and continuing as long as
necessary.
Participating in the prehearing
conference telephone call will be Kathleen D. Sheehy, the undersigned
Administrative Law Judge, whose office is located at
The purpose of the prehearing
conference telephone call is to determine the nature of the dispute that caused
the appeal, and to determine the best way to resolve it. The parties may agree that the Administrative
Law Judge may issue a recommended decision based on the record made during the
prehearing conference. If the appeal
cannot be resolved during the telephone call itself, then the Judge will set a
time for a hearing. The Judge will also
decide whether the hearing shall be held by telephone or in person.
The citation which is being appealed
was issued pursuant to Minn. Stat. § 97A.223, subd. 3 (2008). That statute provides that if a person appeals
the seizure and administrative forfeiture of property, the hearing shall be
held pursuant to procedures set forth in Minn. Stat. § 116.072, subd. 6. That statute in turn provides for an
expedited administrative hearing process, and refers to Minn. R. 1400.8510
to 1400.8612. These are the rules which
will govern the conduct of this appeal.
Copies of the above-referenced statutes and rules may be obtained from
The rules
may be found at www.revisor.leg.state.mn.us/arule/.
In this case, the DNR maintains that
it seized the firearm because Marshall Jarvela unlawfully possessed it in
violation of federal law, specifically 18 U.S.C. § 922(g)(9). That provision makes it unlawful for any
person who has been convicted in any court of a misdemeanor crime of domestic
violence to possess any firearm or ammunition.
The DNR must prove that Marshall Jarvela was convicted of a misdemeanor
crime of domestic violence, as that term is defined in 18 U.S.C. § 921(a)(33), and that he
possessed a firearm on November 7, 2009.
If the parties anticipate offering any documents into evidence during
the telephone conference, including conviction or sentencing records, they must
send them to the Administrative Law Judge by April 20, 2010, and send copies to the other parties on the same
date.
It is not necessary that a person have
an attorney in order to participate in this case. They may, however, choose to be represented
by legal counsel or any other representative of their choice.
Unless the Administrative Law Judge
decides differently, the only parties to participate in the prehearing
conference telephone call will be Officer Hadrits, Agent Doctor, Marshall
Jarvela and James Jarvela. Any other
person who desires to become a party to this case must submit a timely petition
to intervene pursuant to Minn. R. 1400.8570. This petition must show how that person's
legal rights, duties and privileges may be determined or affected by the
decision in this case. The petition must
also set forth the grounds and purposes for which intervention is sought, and
shall indicate petitioner's statutory right to intervene if one should
exist. If the petition is granted, and
the petitioner is given full party privileges, then the petitioner will have
the right to present evidence and witnesses, and will also have the right to
question witnesses presented by the other parties. Even without filing a petition to intervene,
any person may offer testimony or other evidence which is relevant to the case,
but they are subject to being questioned by the parties. Generally, non-parties are not allowed to
question witnesses provided by the parties.
If a hearing is held, the Administrative
Law Judge and the Commmissioner can base
their decision only on factual information or evidence that is part of the
hearing record. Persons participating in
the hearing should have available all documents, records, witnesses and any
other evidence they need to present their position. Subpoenas may be available to compel the
attendance of witnesses or other production of documents. See
Minn. R. 1400.8601 for the procedures regarding subpoenas.
If a hearing is held, the Administrative
Law Judge will issue a recommended decision after the record has closed. A copy of the decision will be sent to each
party and to the Commissioner. After allowing at least five days to pass,
the Commissioner will issue a
final order. During the five-day period,
the parties may file comments with the Commissioner regarding
the recommended decision.
Failure to participate in the
prehearing conference telephone call or failure to appear at the hearing will
result in the citation being upheld and the fine will have to be paid within
thirty (30) days of the issuance of the Commissioner’s final decision, with no
further opportunities for administrative appeal.
It is likely that an appeal hearing
will cost the taxpayers more than the amount of the fine imposed by the
citation. Appeal hearings should be
limited to cases where there is a legitimate, good faith disagreement about the
facts or the law. The statute (section 116.072,
subd. 6(d)) provides that if the Administrative Law Judge finds that a hearing
was requested solely for purposes of delay or that the hearing request was
frivolous, the costs of holding the hearing may be added to the amount of the
fine.
Questions concerning settlement of
this matter may be directed to the Administrative Law Judge at 651-361-7900 or
Pat Watts, Policy/Legal Analyst, Minnesota Department of Natural Resources,
Dated: March 24, 2010
s/Kathleen D.
Sheehy
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KATHLEEN D. SHEEHY Administrative Law Judge |