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Minnesota Legislature

Office of the Revisor of Statutes

Chapter 268

Section 268.105

Recent History

268.105 Hearings; appeals.

Subdivision 1. Hearing. (a) Upon appeal the department shall set a time and place for a de novo evidentiary hearing and mail notice to any involved applicant and any involved employer not less than ten calendar days prior to the date of the hearing.

(b) The evidentiary hearing shall be conducted by a reemployment compensation judge without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding. The commissioner shall adopt rules on evidentiary hearings. The rules need not conform to common law or statutory rules of evidence and other technical rules of procedure. A report of any employee of the department, except a determination, made in the regular course of the employee's duties, shall be competent evidence of the facts contained in it.

(c) After the conclusion of the hearing, upon the evidence obtained, the reemployment compensation judge shall make written findings of fact and decision and mail those to all involved parties. The reemployment compensation judge's decision is the final department decision unless a further appeal is filed pursuant to subdivision 2.

(d) The commissioner shall designate classified employees of the department as reemployment compensation judges to conduct evidentiary hearings on appeals. The commissioner or authorized representative may personally hear or transfer to another reemployment compensation judge any proceedings pending before a reemployment compensation judge. Any proceedings removed to the commissioner or authorized representative shall be heard in accordance with this subdivision.

Subd. 2. Commissioner review. (a) Within 30 calendar days after mailing of the reemployment compensation judge's decision, any involved applicant or involved employer may appeal and obtain a de novo review by the commissioner or an authorized representative. The commissioner within the same period of time may on the commissioner's own motion order a de novo review.

(b) The authorized representative of the commissioner shall be an attorney who is a classified employee of the department. The authority to act on behalf of the commissioner under this section shall be by specific written delegation filed with the secretary of state.

(c) Upon de novo review, the commissioner shall, on the basis of that evidence submitted at the hearing under subdivision 1, make findings of fact and decision, or remand the matter back to a reemployment compensation judge for the taking of additional evidence and the making of new findings and decision based on all the evidence. The commissioner shall, independent of the findings of fact and decision of the reemployment compensation judge, examine the evidence and make those findings of fact as the evidence, in the judgment of the commissioner require, and make that decision as the facts found by the commissioner require.

(d) The commissioner may conduct a de novo review without argument by any involved party, or the commissioner may allow written argument. The commissioner shall not, except for purposes of deciding whether to remand a matter to a reemployment compensation judge for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the reemployment compensation judge.

(e) The commissioner shall mail to any involved party the commissioner's findings of fact and decision. The decision of the commissioner is the final department decision. Unless judicial review is sought under subdivision 7, the decision of the commissioner shall become final 30 calendar days after mailing.

Subd. 3. Withdrawal of appeal. (a) Any appeal that is pending a decision before a reemployment compensation judge or the commissioner may be withdrawn by the appealing person, or an authorized representative of that person, upon filing of a notice of withdrawal.

(b) The appeal shall, by written order, be dismissed if a notice of withdrawal is filed, unless the commissioner, by written order, directs that further adjudication is required for a proper result.

(c) A notice of withdrawal may be filed by mail, by telephone, or if the commissioner allows, by electronic transmission.

Subd. 3a. Decisions. (a) If a reemployment compensation judge's decision or the commissioner's decision allows benefits to an applicant, the benefits shall be paid regardless of any appeal period or any appeal having been filed.

(b) If a reemployment compensation judge's decision modifies or reverses a determination allowing benefits to an applicant, any benefits paid pursuant to the determination is considered an overpayment of those benefits under section 268.18, subdivision 1.

(c) If a commissioner's decision modifies or reverses a reemployment compensation judge's decision allowing benefits to an applicant, any benefits paid pursuant to the reemployment compensation judge's decision is considered an overpayment of those benefits under section 268.18, subdivision 1.

(d) If the commissioner affirms a reemployment compensation judge's decision on an issue of disqualification that allows benefits to an applicant, the commissioner's decision, if finally reversed by the Minnesota Court of Appeals or the Supreme Court of Minnesota, shall not result in a disqualification of the applicant from benefits under section 268.095.

(e) If the commissioner, pursuant to subdivision 2, remands a matter to a reemployment compensation judge for the taking of additional evidence, the prior reemployment compensation judge's decision shall continue to be enforced until new findings of fact and decision are made by a reemployment compensation judge.

Subd. 4. Testimonial powers. The reemployment compensation judge, the commissioner, or authorized representative, may administer oaths and affirmations, take depositions, and issue subpoenas to compel the attendance of witnesses and the production of documents and other personal property considered necessary as evidence in connection with the subject matter of an evidentiary hearing. The subpoenas shall be enforceable through the district court in the district that the subpoena is issued. Witnesses subpoenaed, other than an involved applicant or involved employer or officers and employees of an involved employer, shall be paid by the commissioner the same witness fees as in a civil action in district court.

Subd. 5. Use of information. (a) All testimony at any evidentiary hearing conducted pursuant to subdivision 1 shall be recorded. A copy of any recorded testimony and exhibits received into evidence at the hearing shall, upon request, or upon directive of the commissioner, be furnished to a party at no cost during the time period for filing an appeal to the commissioner or while such an appeal is pending. If requested, the commissioner shall make available a device for listening to the recording if an appeal is pending before the commissioner under subdivision 2.

(b) Regardless of any provision of law to the contrary, if recorded testimony and exhibits received into evidence at the evidentiary hearing are not requested during the time period for filing an appeal to the commissioner, or while such an appeal is pending, that testimony and other evidence shall later be made available to an involved party only pursuant to a court order. A subpoena shall not be considered a court order.

(c) Testimony obtained under subdivision 1, may not be used or considered for any purpose, including impeachment, in any civil, administrative, or contractual proceeding, except by a local, state, or federal human rights agency with enforcement powers, unless the proceeding is initiated by the department.

(d) No findings of fact or decision issued by a reemployment compensation judge or the commissioner may be held conclusive or binding or used as evidence in any separate or subsequent action in any other forum, except proceedings provided for under this chapter, regardless of whether the action involves the same or related parties or involves the same facts.

Subd. 6. Representation; fees. (a) In any proceeding under subdivision 1 or 2, an applicant or involved employer may be represented by any agent.

(b) Except for services provided by an attorney-at-law, an applicant shall not be charged fees, costs, or disbursements of any kind in a proceeding before a reemployment compensation judge, the commissioner, the Minnesota court of appeals, or supreme court of Minnesota.

Subd. 7. Judicial review. (a) The Minnesota court of appeals shall, by writ of certiorari to the commissioner, review the decision of the commissioner provided a petition for the writ is filed with the court and a copy is served upon the commissioner and any other involved party within 30 calendar days of the mailing of the commissioner's decision.

(b) Any employer petitioning for a writ of certiorari shall pay to the court the required filing fee and upon the service of the writ shall furnish a cost bond to the commissioner in accordance with the rules of civil appellate procedure. If the employer requests a written transcript of the testimony received at the evidentiary hearing conducted pursuant to subdivision 1, the employer shall pay to the commissioner the cost of preparing the transcript.

(c) Upon issuance by the Minnesota court of appeals of a writ of certiorari as a result of an applicant's petition, the commissioner shall furnish to the applicant at no cost a written transcript of the testimony received at the evidentiary hearing conducted pursuant to subdivision 1, and, if requested, a copy of all exhibits entered into evidence. No filing fee or cost bond shall be required of an applicant petitioning the Minnesota court of appeals for a writ of certiorari.

(d) The commissioner shall be considered the primary responding party to any judicial action involving the commissioner's decision and the case title shall be, "In Re the matter of: (named petitioner) and the commissioner of economic security." The commissioner may be represented by an attorney who is a classified employee of the department designated by the commissioner for that purpose.

HIST: 1995 c 54 s 11; 1996 c 417 s 22,31; 1997 c 66 s 60; 1998 c 265 s 31,44; 1999 c 107 s 47,66