HPRB still in effect?

Schipperke · May 6, 2018

I do not think an ALJ in this scheme even considers what conclusion the HPRB came to. It is a rehearing on the facts, not the ruling or interpretation of the HPRB. I believe an ALJ will side with MSP more readily than the HPRB though. If MSP denies a permit, you're asking the ALJ to replace their judgement\discretion over MSP, and unless there is some law MSP is breaking, probably a tough road to hoe.

Occam · May 6, 2018

dblas said:
Since the ALJ normally sides with the administrative agency that made the decision (in this case the HPRB) how would that work if they were sued by another administrative agency (MSP)?

Alas, that's not what this is. The dance in front of the ALJ is de novo ... a "do over." Like the HPRB hearing never happened. The agency decision/action being reviewed by the ALJ would be the MSP's, not the board's. The MSP would get a lot of deference if the ALJ follows the normal path of things.

dblas · May 6, 2018

Occam said:
Alas, that's not what this is. The dance in front of the ALJ is de novo ... a "do over." Like the HPRB hearing never happened. The agency decision/action being reviewed by the ALJ would be the MSP's, not the board's. The MSP would get a lot of deference if the ALJ follows the normal path of things.

It would be the HPRB decision/action being reviewed in all cases, whether the HPRB is being sued by the applicant or the MSP. As an applicant you can't sue the MSP for an HPRB decision/action at the ALJ, likewise, the MSP would be taking the HPRB to the ALJ for their action/decision.

dblas · May 6, 2018

Schipperke said:
I do not think an ALJ in this scheme even considers what conclusion the HPRB came to. It is a rehearing on the facts, not the ruling or interpretation of the HPRB. I believe an ALJ will side with MSP more readily than the HPRB though. If MSP denies a permit, you're asking the ALJ to replace their judgement\discretion over MSP, and unless there is some law MSP is breaking, probably a tough road to hoe.

It is a rehearing on the fact, but it would be between the MSP and the HPRB if the MSP appeals to ALJ, not between the MSP and you. Same thing if you file a lawsuit with the ALJ, you would be suing the decision of the HPRB, not the denial of the MSP, since the lawsuit would be on the HPRB finding.

Yes, you could bypass the HPRB and go to the ALJ, but why would we want the MSP to be the department of record instead of the HPRB??

Schipperke · May 6, 2018

We will have to wait if an attorney can clear it up. I believe Occam and myself stated the same thing a bit differently. A de novo hearing as I understand it, the ALJ is basically rehearing your case, essentially not considering the HPRB reasoning of their determination at all. The facts of the matter presented at the initial HPRB hearing do not change and are still on record. I believe too, you are free to add more evidence or witnesses you may have not brought to the HPRB. In essence I do believe one attorney in the thread characterized this as a do over. You are now stating the case in front of an ALJ, not the board. The ALJ's ruling is superior to the HPRB.

CharlieFoxtrot · May 7, 2018

The de novo appeal would be a new hearing on whatever the dispute is with the MSP's initial decision (or final decision after an informal review). It would be immaterial to the ALJ what the decision of the HRPB was. Any factual determination that the HPRB made would be given no weight. Only thing you can use at subsequent administrative hearing from HPRB hearing is if people testified under oath at HPRB or introduced exhibits as evidence. Admission for use at administrative law hearing of these is not automatic. You'd have to introduce them again as part of your de novo appeal. It is really a do over.

The way I see it most hearings will go one of two ways:

1. You apply for permit
2. Denied- appeal to HPRB
3. Board grants in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial denial was correct.

OR

1. You apply for permit
2. MSP issues but with restrictions, appeal restrictions to HPRB
3. Board modifies in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial issuance of restricted permit was correct.

F5guy · May 7, 2018

While we are at it may I ask what it the best course of action for hrpb for appealing restrictions- bring a lawyer or simply answer questions in layman’s terms ?

Sent from my iPhone using Tapatalk

Applehd · May 7, 2018

F5guy said:
While we are at it may I ask what it the best course of action for hrpb for appealing restrictions- bring a lawyer or simply answer questions in layman’s terms ?

Visit a hearing on one of the Tuesday evenings. There are usually quite a few MDS members to share information and a lot can be learned by sitting in. If you're unable to attend, listen to some past hearings posted by markgrutz on the opening HPRB Meeting thread page.

ETA... Click on the DPSCS website on that page also to find meeting dates.
I will be there for sure on May 15th...

Stoveman · May 7, 2018

F5guy said:
While we are at it may I ask what it the best course of action for hrpb for appealing restrictions- bring a lawyer or simply answer questions in layman’s terms ?

Sent from my iPhone using Tapatalk

Applehd said:
Visit a hearing on one of the Tuesday evenings. There are usually quite a few MDS members to share information and a lot can be learned by sitting in. If you're unable to attend, listen to some past hearings posted by markgrutz on the opening HPRB Meeting thread page.

ETA... Click on the DPSCS website on that page also to find meeting dates.
I will be there for sure on May 15th...

This ^^^^.

Once you have attended a hearing or three you will see how simple the process actually is.

protegeV · May 7, 2018

Stoveman said:
This ^^^^.

Once you have attended a hearing or three you will see how ~~simple~~ fvcked the process actually is.

ftfy

Stoveman · May 7, 2018

protegeV said:
ftfy

I agree, but we've got to play the hand we are dealt.

protegeV · May 7, 2018

Stoveman said:
I agree, but we've got to play the hand we are dealt.

For truth. Just saying. I went a handful of times(5 or 6) and couldn't believe what I saw/heard. Kudos for all of you that continue to fight the good fight :thumbsup:

Applehd · May 7, 2018

"God is good..."

welder516 · May 7, 2018

Applehd said:
"God is good..."

Congrats , and it's only Monday . :cool:

Schipperke · May 7, 2018

CharlieFoxtrot said:
The de novo appeal would be a new hearing on whatever the dispute is with the MSP's initial decision (or final decision after an informal review). It would be immaterial to the ALJ what the decision of the HRPB was. Any factual determination that the HPRB made would be given no weight. Only thing you can use at subsequent administrative hearing from HPRB hearing is if people testified under oath at HPRB or introduced exhibits as evidence. Admission for use at administrative law hearing of these is not automatic. You'd have to introduce them again as part of your de novo appeal. It is really a do over.

The way I see it most hearings will go one of two ways:

1. You apply for permit
2. Denied- appeal to HPRB
3. Board grants in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial denial was correct.

OR

1. You apply for permit
2. MSP issues but with restrictions, appeal restrictions to HPRB
3. Board modifies in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial issuance of restricted permit was correct.

With that who bears the burden of proof? Hasn't it shifted to MSP here, as they are asserting their denial or restrictions is permissible and/or reasonable. Every HPRB hearing I've seen, MSP goes first then applicant then MSP offered rebuttal. That pattern there, the party going first then rebutting is typically the one with the burden, no?

Stoveman · May 7, 2018

Schipperke said:
With that who bears the burden of proof? Hasn't it shifted to MSP here, as they are asserting their denial or restrictions is permissible and/or reasonable. Every HPRB hearing I've seen, MSP goes first then applicant then MSP offered rebuttal. That pattern there, the party going first then rebutting is typically the one with the burden, no?

I agree with you, it's ass backwards. But at one time, back when they were meeting in the city, there was debate about this because on the HPRB site somewhere the language was that MSP had the burden which would make sense as to why MSP goes first.

Somewhere along the way JV Lawyer and the board determined that the applicant has the burden. Why that didn't change the order of testimony I have no clue.

Schipperke · May 7, 2018

Stoveman said:
I agree with you, it's ass backwards. But at one time, back when they were meeting in the city, there was debate about this because on the HPRB site somewhere the language was that MSP had the burden which would make sense as to why MSP goes first.

Somewhere along the way JV Lawyer and the board determined that the applicant has the burden. Why that didn't change the order of testimony I have no clue.

Most likely because MSP cites legal precedent that predates the Heller and McDonald decisions. So they pulled shenanigans shifting burden where is does not belong. I'm not sure what MSP could come up with to move the scale against any law abiding applicant that tips the needle to threatening public safety by any remarkable if even measurable amount. Heck, a good attorney could argue an armed citizen enhances public security.

esqappellate · May 7, 2018

CharlieFoxtrot said:
The de novo appeal would be a new hearing on whatever the dispute is with the MSP's initial decision (or final decision after an informal review). It would be immaterial to the ALJ what the decision of the HRPB was. Any factual determination that the HPRB made would be given no weight. Only thing you can use at subsequent administrative hearing from HPRB hearing is if people testified under oath at HPRB or introduced exhibits as evidence. Admission for use at administrative law hearing of these is not automatic. You'd have to introduce them again as part of your de novo appeal. It is really a do over.

The way I see it most hearings will go one of two ways:

1. You apply for permit
2. Denied- appeal to HPRB
3. Board grants in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial denial was correct.

OR

1. You apply for permit
2. MSP issues but with restrictions, appeal restrictions to HPRB
3. Board modifies in which case MSP appeals or Board denies in which case you appeal
4. Hearing before ALJ on sole issue of whether MSP's initial issuance of restricted permit was correct.

I completely agreed. That’s what de novo means.

montoya32 · May 7, 2018

Stoveman said:
I agree with you, it's ass backwards. But at one time, back when they were meeting in the city, there was debate about this because on the HPRB site somewhere the language was that MSP had the burden which would make sense as to why MSP goes first.

Somewhere along the way JV Lawyer and the board determined that the applicant has the burden. Why that didn't change the order of testimony I have no clue.

Agree. We bear the burden for the application, we initiate the application and we have to comply with policy and law. I still do not see an explanation of denial in the letters, unless that has changed since my renewal. That little tidbit would help. Just a reason for denial instead of citing "failed to meet G&S".

montoya32 · May 7, 2018

esqappellate said:
I completely agreed. That’s what de novo means.

So how does circuit court address OAH hearing decisions vs HPRB decisions?

HPRB still in effect?

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