Impt info. regarding State Police Appeals to OAH

delegatemikesmigiel · Jul 7, 2019

I have just recently become aware of an improper procedure being followed by the OAH in Appeals taken by the State Police from HPRB hearings.

I believe the State Police believed there was not going to be any HPRB and thus the applicants would be appealing to the OAH. It would then have been the burden of the applicants to show the State Police decisions below were incorrect. Hogan's veto of the bill disbanding the HPRB messed up that plan, for now.

I need to hear from those who won before the HPRB and had the State Police Appeal to the OAH. Was anyone told the burden was on them, the applicant to prove the State Police were incorrect in their decision instead of the burden being placed on the State Police to prove the HPRB was incorrect in its decision to overrule the State Police?

Even if your Appeal date has passed, arguably, applicants should be able to open the Appeal back up. I plan on putting all this on the record for an Appeal to the high court eventually but am wondering how widespread this practice has been. Anyone challenging this improper procedure will need to get a transcript of the hearing and since this is infringing upon the Constitutional Rights of every applicant before the OAH it should be a priority with the Courts.

I'm interested in hearing if others are having this experience.

Stoveman · Jul 7, 2019

Smigiel said:
I have just recently become aware of an improper procedure being followed by the OAH in Appeals taken by the State Police from HPRB hearings.

I believe the State Police believed there was not going to be any HPRB thought there would be no HPRB and thus the applicants would be appealing to the OAH. It would then have been the burden of the applicants to show the State Police decisions below were incorrect. Hogan's veto of the bill disbanding the HPRB messed up that plan, for now.

I need to hear from those who won before the HPRB and had the State Police Appeal to the OAH. Was anyone told the burden was on them, the applicant to prove the State Police were incorrect in their decision instead of the burden being placed on the State Police to prove the HPRB was incorrect in its decision to overrule the State Police?

Even if your Appeal date has passed, arguably, applicants should be able to open the Appeal back up. I plan on putting all this on the record for an Appeal to the high court eventually but am wondering how widespread this practice has been. Anyone challenging this improper procedure will need to get a transcript of the hearing and since this is infringing upon the Constitutional Rights of every applicant before the OAH it should be a priority with the Courts.

I'm interested in hearing if others are having this experience.

Welcome to MDS, Delegate.

I'm sure others who will chime in but from the multiple people that I know who have been through their OAH hearing all tell me that your description of the hearings and the burden is spot on.

welder516 · Jul 7, 2019

I won at HPRB level and Lost at the OAH and it was stated to my attorney and me that the burden of proof was on me to convince the hearing judge I was right .

They recorded the hearing and I am sure it was transcribed as well . I will also add it is a shit-show and a farce the whole OAH , they will never side with the applicant ...prove me wrong folks

dblas · Jul 7, 2019

Smigiel said:
I have just recently become aware of an improper procedure being followed by the OAH in Appeals taken by the State Police from HPRB hearings.

I believe the State Police believed there was not going to be any HPRB and thus the applicants would be appealing to the OAH. It would then have been the burden of the applicants to show the State Police decisions below were incorrect. Hogan's veto of the bill disbanding the HPRB messed up that plan, for now.

I need to hear from those who won before the HPRB and had the State Police Appeal to the OAH. Was anyone told the burden was on them, the applicant to prove the State Police were incorrect in their decision instead of the burden being placed on the State Police to prove the HPRB was incorrect in its decision to overrule the State Police?

Even if your Appeal date has passed, arguably, applicants should be able to open the Appeal back up. I plan on putting all this on the record for an Appeal to the high court eventually but am wondering how widespread this practice has been. Anyone challenging this improper procedure will need to get a transcript of the hearing and since this is infringing upon the Constitutional Rights of every applicant before the OAH it should be a priority with the Courts.

I'm interested in hearing if others are having this experience.

Welcome back Mike, as several have said, OAH has made that statement to EVERY person that has been in front of the OAH that MSP has appealed.

tmd99 · Jul 7, 2019

Isn't it a de novo appeal (as opposed to an appeal on the record) which means everyone starts from the beginning? (Md Code Ann. Public Safety § 5-312(e)(2))("Within 60 days after the receipt of a request from the applicant, the holder of the permit, or the Secretary, the Office of Administrative Hearings shall schedule and conduct a de novo hearing on the appeal, at which witness testimony and other evidence may be provided."). Not sure how a de novo appeal would place the burden on the State Police if the burden was originally on the applicant (when a de novo appeal is effectively a do-over of proceedings at the lower level). Similar to de novo appeals from district court to circuit court. The burden remains with whoever originally had it....unless i am missing something here, which is possible.

Stoveman · Jul 7, 2019

tmd99 said:
Isn't it a de novo appeal (as opposed to an appeal on the record) which means everyone starts from the beginning? (Md Code Ann. Public Safety § 5-312(e)(2))("Within 60 days after the receipt of a request from the applicant, the holder of the permit, or the Secretary, the Office of Administrative Hearings shall schedule and conduct a de novo hearing on the appeal, at which witness testimony and other evidence may be provided."). Not sure how a de novo appeal would place the burden on the State Police if the burden was originally on the applicant (when a de novo appeal is effectively a do-over of proceedings at the lower level). Similar to de novo appeals from district court to circuit court. The burden remains with whoever originally had it....unless i am missing something here, which is possible.

IANAL (the OP is) but I believe the difference is in who is doing the appealing.

The applicant would appeal the decision of the Secretary of the MSP to impose restrictions at the HPRB. The loser at the HPRB, in this case MSP, is the party who initiates the appeal to the OAH.

Why should it be the permit holder's burden if MSP is the aggrieved party?

You are correct in that it is a de novo hearing and I have always questioned how this could be considering that the MSP is appealing a decision by the HPRB which, as I understand it, didn't happen legally. I'm sure some of our legal eagles can explain it but I have never been able to wrap my brain around the process.

A bad law written and enacted by idiots.

Occam · Jul 7, 2019

Stoveman said:
Why should it be the permit holder's burden if MSP is the aggrieved party?

Maybe it makes more sense in the context of the HPRB being abolished, which has obviously been the GA’s plan all along. No HPRB, and the appeal at the OAH is the permit applicant/holder being the aggrieved party.

welder516 · Jul 7, 2019

All I can tell you is I believed I was wronged by OAH and it's process , but I suppose one could argue that anyone that loses a case would say that very thing .

The whole restriction issue is a farce , and I have wondered for years how the state of Maryland can keep this whole scheme going for the many years . I would have thought one lawyer would have had an opportunity to de-ball the state .

I would say let Gov. Hogan do without protection while he is on vacation with his family , not sure why he is better then any of us .

Dingo3 · Jul 7, 2019

welder516 said:
All I can tell you is I believed I was wronged by OAH and it's process , but I suppose one could argue that anyone that loses a case would say that very thing .

The whole restriction issue is a farce , and I have wondered for years how the state of Maryland can keep this whole scheme going for the many years . I would have thought one lawyer would have had an opportunity to de-ball the state .

I would say let Gov. Hogan do without protection while he is on vacation with his family , not sure why he is better then any of us .

And no taxpayer protective details for any MD State officials, lawmakers, coaches (MSP travels with UMD), judges. Police Officers must leave their issued arms at the station when off and have the same next-to-zero chance of a non business owner of being bestowed a permit by the crown. No separate standards for anyone.

MJD438 · Jul 7, 2019

Dingo3 said:
And no taxpayer protective details for any MD State officials, lawmakers, coaches (MSP travels with UMD), judges. Police Officers must leave their issued arms at the station when off and have the same next-to-zero chance of a non business owner of being bestowed a permit by the crown. No separate standards for anyone.

Minor correction - UMD teams travel with UMPD as security, not MSP.

Sent from my SM-G960U using Tapatalk

Dingo3 · Jul 7, 2019

MJD438 said:
Minor correction - UMD teams travel with UMPD as security, not MSP.

Sent from my SM-G960U using Tapatalk

Thank you. Not the first time I’ve been mistaken and definitely not the last. Could of sworn I have seen seen state troopers on the sidelines at away football games.

Stoveman · Jul 7, 2019

Occam said:
Maybe it makes more sense in the context of the HPRB being abolished, which has obviously been the GA’s plan all along. No HPRB, and the appeal at the OAH is the permit applicant/holder being the aggrieved party.

But the aggrieved party would be the one filing the appeal. If I was a carpenter and I applied for a permit to build a deck and was denied it wouldn't be the county permit department who appealed it would be me. In that case I would have the burden and not the county.

Not one of the permit holders who have had a hearing at the OAH have filed the appeal, it's been MSP. So why would it not be their burden?

Again, stupid law enacted by stupid legislators.

Dingo3 · Jul 7, 2019

Please allow me to think out loud and dumb it down for myself: so the applicant wins at HPRB (either receiving a permit or restrictions being lifted), MSP appeals to the OAH thus making MSP now the appellant where the burden of proof falls upon them (MSP), yet the OAH places the burden of proof upon the original applicant? How is this even legal?

To quote Shakespeare “something rotten in the state of Denmark”. Hamlet Act I Scene IV

Occam · Jul 7, 2019

My point is: picture the HPRB missing from the picture. That puts an OAH hearing’s appellant the permit holder/seeker (not the MSP), because they’re appealing an MSP action. Clearly whoever wrote the law introducing the OAH option we’re seeing a future without the intervening step of the HPRB. Without the board, it’s not the MSP appealing anything to OAH, it’s us.

Dingo3 · Jul 7, 2019

Occam said:
My point is: picture the HPRB missing from the picture. That puts an OAH hearing’s appellant the permit holder/seeker (not the MSP), because they’re appealing an MSP action. Clearly whoever wrote the law introducing the OAH option we’re seeing a future without the intervening step of the HPRB. Without the board, it’s not the MSP appealing anything to OAH, it’s is.

That I actually can wrap my brain around. It’s with the veto of the HPRB going away that throws the monkey wrench into the system they ineptly, yet thought they had so cleverly set up. Or perhaps not so ineptly; until and unless the veto is overturned, much money and time will be spent by appellants yet the state plays with tax money

Stoveman · Jul 7, 2019

Dingo3 said:
Please allow me to think out loud and dumb it down for myself: so the applicant wins at HPRB (either receiving a permit or restrictions being lifted), MSP appeals to the OAH thus making MSP now the appellant where the burden of proof falls upon them (MSP), yet the OAH places the burden of proof upon the original applicant? How is this even legal?

To quote Shakespeare “something rotten in the state of Denmark”. Hamlet Act I Scene IV

Ed Zachary

Occam said:
My point is: picture the HPRB missing from the picture. That puts an OAH hearing’s appellant the permit holder/seeker (not the MSP), because they’re appealing an MSP action. Clearly whoever wrote the law introducing the OAH option we’re seeing a future without the intervening step of the HPRB. Without the board, it’s not the MSP appealing anything to OAH, it’s is.

I absolutely get your point, hence my reference to the quality of the law and the lawmakers who passed it, but the HPRB is in play thanks to FL's veto.

Not surprised that dimwitted lawmakers passed such a law but I am more than a little surprised that even in this state that an ALJ has not ruled in the favor of the applicant solely on this basis.

ted76 · Jul 8, 2019

Thank you for your hard work and support for our 2A rights here in Maryland.

:thumbsup:

motorcoachdoug · Jul 8, 2019

welder516 said:
All I can tell you is I believed I was wronged by OAH and it's process , but I suppose one could argue that anyone that loses a case would say that very thing .

The whole restriction issue is a farce , and I have wondered for years how the state of Maryland can keep this whole scheme going for the many years . I would have thought one lawyer would have had an opportunity to de-ball the state .

I would say let Gov. Hogan do without protection while he is on vacation with his family , not sure why he is better then any of us .

Are you going to file an appeal with the circuit court? Was it before the board was disbanded for a while or after? and who did the appealing before the ALJ? If MSP did the appealing and the ALJ said you had to prove to him why restrictions should be removed then shouldn't MSP have to prove why and not you? If you point this out to the judge that might be enough to over rule the ALJ ruling against you. Also could a lawsuit be filed against MD to force the burden to be placed on MSP as well>??? Also I think its in COMAR that the top officials in the MD Gov are provided a security detail as well.

ironpony · Jul 8, 2019

Delegate, Thanks for noticing how the MSP are policing the citizens of MD and their rights, almost a triviality given the amount of tax payers held down by their system (MSPLD) but help at any stage is appreciated. The fight, for Life, Liberty and the pursuit of Happiness in MD continues ...

Doctor_M · Jul 8, 2019

ironpony said:
Delegate, Thanks for noticing how the MSP are policing the citizens of MD and their rights, almost a triviality given the amount of tax payers held down by their system (MSPLD) but help at any stage is appreciated. The fight, for Life, Liberty and the pursuit of Happiness in MD continues ...

Ditto for me. :thumbsup:

Impt info. regarding State Police Appeals to OAH

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