2004 Minnesota Statutes

     268.105 Appeals. 

    Subdivision 1.    Evidentiary hearing by an unemployment 
 law judge.  (a) Upon a timely appeal having been filed, the 
 department shall send a notice of appeal to all involved parties 
 that an appeal has been filed, that a de novo due process 
 evidentiary hearing will be scheduled, and that the parties have 
 certain rights and responsibilities regarding the hearing.  The 
 department shall set a time and place for a de novo due process 
 evidentiary hearing and send notice to any involved applicant 
 and any involved employer, by mail or electronic transmission, 
 not less than ten calendar days prior to the date of the hearing.

    (b) The evidentiary hearing shall be conducted by an 
 unemployment law judge without regard to any common law burden 
 of proof as an evidence gathering inquiry and not an adversarial 
 proceeding.  The unemployment law judge shall ensure that all 
 relevant facts are clearly and fully developed.  The department 
 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.  The department shall have 
 discretion regarding the method by which the evidentiary hearing 
 is conducted.  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 unemployment law judge shall make findings of fact 
 and decision and send those, by mail or electronic transmission, 
 to all involved parties.  The unemployment law judge's decision 
 is the final department decision unless a further appeal is 
 filed pursuant to subdivision 2. 

    (d) Only employees of the department shall serve as 
 unemployment law judges.  A senior unemployment review judge may 
 personally hear or transfer to another unemployment law judge 
 any proceedings pending before an unemployment law judge.  Any 
 proceedings removed to a senior unemployment review judge shall 
 be heard in accordance with this subdivision. 

    Subd. 2.    De novo review by a senior unemployment review 
 judge.  (a) Except as provided under subdivision 2a, any 
 involved applicant or involved employer may appeal a decision of 
 an unemployment law judge and obtain a de novo review by a 
 senior unemployment review judge by filing with a senior 
 unemployment review judge an appeal within 30 calendar days 
 after the sending of the unemployment law judge's decision.  A 
 senior unemployment review judge within the same period of time 
 may, on a senior unemployment review judge's own motion, order a 
 de novo review of any decision of an unemployment law judge.  

    (b) A senior unemployment review judge shall be an attorney 
 who is an employee of the department.  

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

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

    (e) The senior unemployment review judge shall send, by 
 mail or electronic transmission, to any involved party the 
 senior unemployment review judge's findings of fact and 
 decision.  The decision of the senior unemployment review judge 
 is the final decision of the department.  Unless judicial review 
 is sought under subdivision 7, the decision of the senior 
 unemployment review judge shall become final 30 calendar days 
 after sending. 

    Subd. 2a.    Orders by a senior unemployment review judge. 
  (a) If an applicant or employer files an appeal in a matter 
 where an unemployment law judge affirmed a determination issued 
 under section 268.101, and there is no dispute regarding the 
 determinative facts, a senior unemployment review judge shall 
 have the discretion to decline to conduct a de novo review.  If 
 de novo review is declined, the senior unemployment review judge 
 shall issue an order adopting the unemployment law judge's 
 findings of fact and decision. 

    (b) If an involved party fails, without good cause, to 
 appear and participate at the evidentiary hearing conducted by 
 an unemployment law judge under subdivision 1, and that party 
 files an appeal, a senior unemployment review judge shall have 
 the discretion to decline to conduct a de novo review.  If de 
 novo review is declined, the senior unemployment review judge 
 shall issue an order dismissing the appeal. 

    Submission of a written statement shall not constitute an 
 appearance and participation at an evidentiary hearing for 
 purposes of this paragraph. 

    All involved parties must be notified of this paragraph 
 with the notice of appeal and notice of hearing provided for 
 under subdivision 1.  The senior unemployment review judge shall 
 allow for the submission of a written argument on the issue of 
 good cause before dismissing an appeal under this paragraph.  

    "Good cause" for purposes of this paragraph is a compelling 
 reason that would have prevented a reasonable person acting with 
 due diligence from appearing and participating at the 
 evidentiary hearing. 

    (c) The senior unemployment review judge shall send to any 
 involved party the order issued under this subdivision.  The 
 order may be sent by mail or electronic transmission.  Unless 
 judicial review is sought under subdivision 7, the order of a 
 senior unemployment review judge becomes final 30 calendar days 
 after sending. 

    Subd. 3.    Withdrawal of appeal.  (a) Any appeal that 
 is pending before an unemployment law judge or a senior 
 unemployment review judge 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 order, be dismissed if a notice of 
 withdrawal is filed, unless an unemployment law judge or a 
 senior unemployment review judge, by order, directs that further 
 adjudication is required for a proper result. 

    (c) A notice of withdrawal may be filed by mail or by 
 electronic transmission. 

    Subd. 3a.    Decisions.  (a) If an unemployment law 
 judge's decision or a senior unemployment review judge's 
 decision or order allows unemployment benefits to an applicant, 
 the unemployment benefits shall be paid regardless of any appeal 
 period or any appeal having been filed. 

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

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

    (d) If a senior unemployment review judge affirms an 
 unemployment law judge's decision on an issue of 
 disqualification that allows unemployment benefits to an 
 applicant and the senior unemployment review judge's decision or 
 order is reversed by the Minnesota Court of Appeals or the 
 Supreme Court of Minnesota, the applicant shall not be 
 disqualified from unemployment benefits under section 268.095, 
 subdivision 10.  

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

    Subd. 4.    Testimonial powers.  An unemployment law 
 judge and a senior unemployment review judge 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 department the same witness fees 
 as in a civil action in district court.  

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

    Subd. 5a.    No collateral estoppel.  No findings of 
 fact or decision or order issued by an unemployment law judge or 
 a senior unemployment review judge may be held conclusive or 
 binding or used as evidence in any separate or subsequent action 
 in any other forum, be it contractual, administrative, or 
 judicial, 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, 2, or 2a, 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 an unemployment law judge, a 
 senior unemployment review judge, 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 department, review 
 the senior unemployment review judge's decision under 
 subdivision 2 or order under subdivision 2a, provided a petition 
 for the writ is filed with the court and a copy is served upon 
 the senior unemployment review judge or the commissioner and any 
 other involved party within 30 calendar days of the sending of 
 the senior unemployment review judge's decision under 
 subdivision 2 or order under subdivision 2a.  

    (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 department 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 department the cost of preparing 
 the transcript.  That money shall be credited to the 
 administration account. 

    (c) Upon issuance by the Minnesota Court of Appeals of a 
 writ of certiorari as a result of an applicant's petition, the 
 department shall furnish to the applicant at no cost a written 
 transcript of any 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 department shall be considered the primary 
 responding party to any judicial action involving a senior 
 unemployment review judge's decision or order.  The department 
 may be represented by an attorney who is an employee of the 
 department. 

    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; 2000 c 343 s 4; 2001 c 175 s 
 44; 1Sp2003 c 3 art 2 s 15; 2004 c 183 s 71