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OAH 4-3600-20809-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC EMPLOYEES RETIREMENT ASSOCIATION
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In the Matter of the PERA Salary Determinations Affecting
Retired and Active Employees of the City of Allen Johnson, et al., Petitioners |
ORDER ON MOTION
TO COMPEL DISCOVERY AND
EXTEND DISCOVERY
DEADLINES |
This
matter came before Administrative Law Judge Bruce H. Johnson (the ALJ) on the
Motion by Petitioners Ostman, Purcell and Behning, Michog, Edwards, Belanger,
Salveson, Peterson, Harvey, Charbonneau, Johnson, and Wedin (Movants) to Compel
Discovery and Extend Discovery Deadlines (collectively, Motion to Compel). Movants filed the motion on December 2, 2009,
and the City of
Elizabeth
A. Storaasli, Dryer Storaasli Knutson & Pommerville, Ltd., appeared on
behalf of the Petitioners. Lisa D.
Wilson, Assistant City Attorney, appeared on behalf of the City of
Based upon all of the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED that:
(1) The Movants’ Motion to Compel Discovery is DENIED;
(2) The Movants’ motion to Extend Deadlines is GRANTED;
(3) The Movants’ motion to recover attorneys fee is DENIED; and
(3) The parties may continue to conduct further discovery and file dispositive motions pending further orders of the Administrative Law Judge.
Dated: January 7, 2010
s/Bruce H. Johnson
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BRUCE H. JOHNSON Assistant Chief Administrative Law Judge |
MEMORANDUM
I. Prior Proceedings
In
September 2008, the City of
On
July 10, 2009, the PERA Board of Trustees issued Notices of Hearing in 70
separate contested cases to current and retired employees of the City of
The Movants
are parties to this consolidated contested case. On September 30, 2009, some of them filed a
motion for compulsory joinder of the City as a party to this proceeding. On October 15, 2009, before the ALJ ruled on that
motion, the Movants prepared and issued a set of Combined Interrogatories and
Requests for Production of Documents (Combined Discovery Request) directed to
the City. On the following day, the
Movants requested a subpoena from the Chief Administrative Law Judge directing
the City to produce the documents that were described in the attached Combined
Discovery Request. On October 19, 2009,
the requested subpoena was issued and forwarded to counsel for the Movants. In other words, the Combined Discovery
Request was prepared and the associated subpoena requested in anticipation that
the motion for compulsory joinder would be granted and that the City would
thereby become a party to this contested case proceeding. By letter dated October 21, 2009, the
Movants served the Combined Discovery Request and the associated subpoena on
the City. However, on the previous day,
the ALJ had issued an Order denying the motion for joinder, and the City
therefore never acquired party status in this proceeding. It was therefore never obliged to respond to
the various kinds of discovery requests to which a party must respond under Minn. R. Civ. P. 26.01.
On
November 16, 2009, the City filed objections to the subpoena. Although the City agreed to supply the
Movants with some of the documents described in the Combined Discovery Request,
as a non-party, the City objected to answering any of the attached
interrogatories and objected to production of other documents on grounds that
some requests were overly broad, unduly burdensome, beyond the scope of this
proceeding, privileged or contained not public information under Minn. Stat.
Ch. 13.
The
Movants did not respond directly to the City’s objections to the subpoena. Rather, on December 2, 2009, the Movants
filed the pending Motion to Compel. The
relief that the Movants now seek is: (1) an order compelling the City to comply
in full with the subpoena issued by the Chief Administrative Law Judge on
October 19, 2009; (2) an order extending the deadlines for completing discovery
and for filing and responding to dispositive motions; and (3) an order awarding
attorneys fees associated with the Motion to Compel .
On
December 23, 2009, the City filed a response to the Motion to Compel in which
it essentially reasserted the objections previously raised in its November 16,
2009, objections to the subpoena previously served by the Movants on the City.
II. The ALJ Lacks Authority to Enforce the
Subpoena
As the
Movants correctly point out, Minn. R. 1400.6700, subp. 2, provides that “[a]ny
means of discovery available pursuant to the Rules of Civil Procedure for the
District Court of Minnesota is allowed.”
However, unlike judges of the district court, ALJs have neither general
jurisdiction nor inherent powers. They
may only exercise such jurisdiction and powers that the Legislature has
conferred on them. The Movants cite
Upon the chief administrative law judge's own initiative or upon written request of an interested party, the chief administrative law judge may issue a subpoena for the attendance of a witness or the production of books, papers, records or other documents as are material to any matter being heard by the Office of Administrative Hearings. The subpoenas shall be enforceable through the district court in the district in which the subpoena is issued. [Emphasis supplied.]
In short, Minn. Stat. §
14.51 does not empower the Chief Administrative Law Judge in any circumstance
to enforce a subpoena he issues, notwithstanding anything to the contrary in
Rule 45.02. If the Movants wish to
enforce the subpoena at issue, they must do so in district court.
III. The ALJ Lacks Authority to Impose
Discovery Sanctions on a Non-Party
Subp. 2. Discovery of other information. * * * If the party from whom discovery is sought objects to the discovery, the party seeking the discovery may bring a motion before the judge to obtain an order compelling discovery. In the motion proceeding, the party seeking discovery shall have the burden of showing that the discovery is needed for the proper presentation of the party's case, is not for purposes of delay, and that the issues or amounts in controversy are significant enough to warrant the discovery. In ruling on a discovery motion, the judge shall recognize all privileges recognized at law.
Subp. 3. Noncompliance. Upon the failure of a party to reasonably comply with an order of the judge made pursuant to subpart 2, the judge may make a further order as follows:
A. an order that the subject matter of the order for discovery or any other relevant facts shall be taken as established for the purposes of the case in accordance with the claim of the party requesting the order;
B. an order refusing to allow the party failing to comply to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence. [Emphasis supplied.]
Those rule provisions recognize
an ALJ’s lack of statutory authority over entities which are not parties to a
contested case proceeding. Subpart 2 expressly
applies only to objections of parties
from whom discovery is sought, and the sanctions for noncompliance available in
Subpart 3 deal exclusively with limiting evidence that can be received during an
evidentiary hearing. Those are sanctions
that are expressly applicable and meaningful only to parties to the contested case.
In summary, there is nothing in statute or rule that empowers an ALJ to
compel a nonparty to comply with a discovery request made in a contested case,
nor is an ALJ empowered to impose sanctions on a nonparty that refuses to
comply.
IV. The ALJ Lacks Authority to Assess Attorneys
Fees
As
discussed above, ALJs do not possess general jurisdiction or inherent powers. Although some statutes give ALJs statutory
authority to award attorneys fees in particular situations, the Legislature has
never granted ALJs general authority to award attorneys fees in contested
cases. For example, the Minnesota Equal
Access to Justice Act (MEAJA)[2]
authorizes an award of attorney fees and expenses to certain kinds of prevailing
parties in contested cases where a state
agency position is not “substantially justified.”[3] But an attorneys fees award under MEAJA is
only available to small business organizations; moreover, attorneys fees cannot
be obtained from parties who are not state agencies.[4] A further example is the Minnesota Human
Rights Act, which allows an ALJ to assess the cost of representation by the
Attorney General’s Office against a respondent who is determined to have
engaged in an unfair discriminatory practice.[5] However, there is no provision of law
authorizing an ALJ to assess attorneys fees against a nonparty who fails to
comply with a subpoena issued by the Chief Administrative Law Judge.
V. The Discovery Deadline Should be Extended
The
ALJ is not in a position to order or require a resolution to this pending discovery
dispute. If the Movants and the City are
unable to arrive at mutual agreement on production of the remaining disputed
items, it will be necessary for the Movants to take this dispute to the Ramsey
County District Court.[6] Fairness therefore requires an extension of
discovery deadline pending an agreement of the parties or an order of that District
Court. The ALJ also notes that the PERA
staff recently filed a motion for summary disposition, the adjudication of
which could possibly obviate the need for some of the requested discovery. The deadlines for discovery and dispositive
motions have therefore been extended indefinitely pending further orders of the
ALJ.
In
view of the foregoing, the Movants’ motions to compel discovery and to award
attorneys fees are denied, and the motion to extend deadlines for discovery and
dispositive motions is granted.
B.H.J.
[1] See Notices of Hearing.
[2]
[3]
[4]
[5]
[6]