Original Author: Jon Lunde<\/p>\n
Revised in 2014 by Sam Orbovich<\/a><\/p>\n Revised in 2023 by Sam Orbovich and Pari McGarraugh<\/a> with assistance from Elijah Rockhold<\/p>\n Download a PDF of Chapter 6<\/a><\/p>\n Chapter Contents<\/p>\n The rules governing contested case proceedings promulgated by the Minnesota Office of Administrative Hearings (OAH) define \u201cparty\u201d as:<\/p>\n each person named as a party by the agency in the notice of and order for hearing, or persons granted permission to intervene pursuant to part 1400.6200. The term \u201cparty\u201d shall include the agency except when the agency participates in the contested case in a neutral or quasi-judicial capacity only.[1]<\/a><\/sup><\/p><\/blockquote>\n The fact that a person receives a notice of hearing does not elevate that recipient to party status.[2]<\/a><\/sup> That is because the notice of a contested case hearing may be sent to persons who are not indispensable to the proceeding and whose interests in the case are unknown. Parties must be either named by the agency, allowed to intervene, or added by consolidation. The parties named by the agency are typically identified in the caption of the notice of and order for hearing or other authorized pleading. The contested case rules do not require that parties be identified in the caption, but rules of the agency commencing the contested case may have such a requirement.[3]<\/a><\/sup> Additional parties may be added or dropped by an agency’s filing of an amended pleading.<\/a>[4]<\/a><\/sup><\/p>\n An agency is not a party to a contested case if it participates in a neutral or quasi-judicial capacity only. The Minnesota Supreme Court has enumerated the factors to consider when determining whether an agency’s actions are quasi-judicial, rather than administrative.[5]<\/a><\/sup> These decisions generally hold that an agency acts in a quasi-judicial capacity when it hears a case pending between adverse parties, applies the law to the facts and renders a judgment determining the rights of the parties,[6]<\/a><\/sup> or when the agency action involves the exercise of discretion and requires notice and hearing.[7]<\/a><\/sup> Under these holdings, an agency acts in a quasi-judicial capacity in most, if not all, contested cases. Although an agency is not a party if its participation is \u201conly\u201d neutral or quasi-judicial, even when acting in an administrative capacity, the agency will attain party status when acting for the public interest.[8]<\/a><\/sup> State agencies that represent the interest of the public are not considered neutral, and thus become parties to their contested case proceedings. To determine whether an agency acted in a quasi-judicial capacity only, courts will examine the nature and quality of the agency\u2019s acts,[9]<\/a><\/sup> the interests the agency was created to represent, and its power to act on its own initiative.[10]<\/a><\/sup><\/p>\n Agencies are usually parties to their contested cases because of their adversarial position and the public interests the agencies are empowered to protect. Thus, when an agency seeks to deny or revoke a license or permit, to discharge an employee,[11]<\/a><\/sup> to impose a fine, or to deny a benefit, it is a party, even if the agency does not name itself as one. An agency’s participation is neutral or quasi-judicial when it merely decides disputes between others. For example, the Department of Administration acts in a quasi-judicial capacity when resolving disputes between state agencies and members of the public concerning the accuracy and completeness of data maintained on individuals.[12]<\/a><\/sup> Likewise, the Department of Veterans Affairs acts in a quasi-judicial capacity when resolving disputes between public employers and employees concerning alleged violations of the Veterans Preference Act.[13]<\/a><\/sup> An agency acting only in a neutral or quasi-judicial capacity may nonetheless question witnesses, if permitted by the administrative law judge (ALJ) under Minnesota Rules part 1400.7900 (2013). If the agency desires more extensive participation than the ALJ will allow under that rule, the agency may seek to intervene as a party.[14]<\/a><\/sup><\/p>\n Questions regarding an agency’s standing to participate in a contested case as a party, unlike questions regarding an agency’s standing to appeal final agency decisions, seldom arise, and the former have less significance. Even if an agency is denied party status in the contested case, agency representatives still may be permitted to ask questions at the hearing to clarify testimony or to develop a complete record. In addition, in cases in which the agency cannot become a party, the agency’s staff, or a division of an agency, may be permitted to intervene. The fact that an agency with standing to participate in the contested case as a party may not have standing to appeal reflects the general rule that the interest required to obtain party status in a contested case is different from the interest needed to obtain standing to appeal to seek judicial review.[15]<\/a><\/sup> The courts have denied standing to appeal to parties despite their participation in contested cases.[16]<\/a><\/sup> On the other hand, participation in the contested case may create appeal rights.[17]<\/a><\/sup> Although a party to the contested case may or may not have standing to appeal depending on the circumstances, courts typically hold that a person who did not participate has no standing to appeal unless that opportunity is conferred by statute.[18]<\/a><\/sup><\/p>\n When seeking judicial review of a final agency decision, the Administrative Procedures Act (APA) requires that the petition for a writ of certiorari for judicial review under sections 14.63 to 14.68 must be filed with the court of appeals and \u201cserved on all parties to the contested case\u201d[19]<\/a><\/sup> not more than 30 days after the party receives the final decision and order of the agency.[20]<\/a><\/sup> If a person aggrieved by a final decision in a contested case is uncertain which participants are parties to the contested case, then upon request the agency shall certify to the petitioner the names and addresses of all parties as disclosed by its records.[21]<\/a><\/sup> The agency\u2019s certification \u201cshall be conclusive.\u201d[22]<\/a><\/sup><\/p>\n At the initiation of a contested case, the parties named by the agency should include those persons entitled to a hearing under the applicable statutes and rules or as a matter of due process of law.<\/a>[23]<\/a><\/sup> This concept is reflected in the definition of a contested case as a \u201cproceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.\u201d[24]<\/a><\/sup> Apart from constitutional considerations,[25]<\/a><\/sup> the right to a hearing may arise under state laws and rules or federal laws and regulations.<\/p>\n The parties to a contested case generally include the real party in interest and all adverse parties.[26]<\/a><\/sup> Parties must be affected by a proposed action on individual grounds and in a different manner than other members of the public.[27]<\/a><\/sup> This is implicit in the reference to \u201cspecific parties\u201d in the definition of a contested case.[28]<\/a><\/sup> Where a person is affected in the same manner as other members of the public, that person is not generally entitled to be named as a party in a contested case.[29]<\/a><\/sup> Parties must be affected on individual grounds because contested cases resolve adjudicative facts, and only specific facts about specific parties are appropriate for such trial type hearings.[30]<\/a><\/sup><\/p>\n The APA and the contested case rules do not define indispensable, necessary, and proper parties to contested cases. The APA merely requires that \u201call parties shall be afforded an opportunity for hearing after reasonable notice.\u201d[31]<\/a><\/sup> In many cases, the parties that must be named by the agency are obvious or are specified in the applicable statutes and rules. The failure to join parties specified by statute has resulted in the invalidation of agency action.[32]<\/a><\/sup> Likewise, the failure to join \u201cindispensable parties\u201d not specified in the governing statutes may invalidate agency action.[33]<\/a><\/sup> Agencies themselves can be necessary parties.[34]<\/a><\/sup> In cases in which the agency is a necessary party and has not been previously joined, the nature of the case may require agency participation to preserve the balance of power between the executive and judicial branches.[35]<\/a><\/sup> Once a person becomes a party, he or she is a necessary party to subsequent proceedings in the matter.[36]<\/a><\/sup> One court has held that general civil rules on indispensable, necessary, and proper parties apply to administrative adjudications.[37]<\/a><\/sup><\/p>\n It should be noted that in the absence of statutory or constitutional restrictions, court-made rules of joinder play only a small role in administrative adjudications.[38]<\/a><\/sup> Thus, a California court held that an agency was not required to join all charges against a doctor in a single proceeding where separate and unrelated acts were involved.[39]<\/a><\/sup> However, where an agency proceeds against a violator in multiple proceedings, the election of remedies doctrine may apply.[40]<\/a><\/sup> Since an ALJ in Minnesota may apply the Rules of Civil Procedure for the District Courts,[41]<\/a><\/sup> joinder issues may become more important in Minnesota contested cases than they are in other states. It would be particularly appropriate to apply court-made joinder rules in contested cases that parallel state or federal proceedings, such as discrimination actions and occupational safety and health actions. The precedents set in such cases should be followed.[42]<\/a><\/sup><\/p>\n As mentioned above, when an agency participates in a contested case only in a quasi-judicial capacity, agency representatives may be permitted to examine witnesses even though the agency is not a party.[43]<\/a><\/sup> Such limited participation does not make the agency a party. A separate rule governs the participation of other nonparties.[44]<\/a><\/sup> Under that rule, the ALJ may permit nonparties to present testimony and exhibits and to question witnesses at the hearing. Any person permitted to participate in a contested case hearing in that fashion does not become a party. In administrative hearings that are not held under the rules of the OAH, however, a nonparty who appears and participates in a hearing may gain party status if he or she claims an interest in the subject matter of the proceeding.[45]<\/a><\/sup><\/p>\n Although a person with standing to intervene may be permitted to file a written brief without becoming a party,[46]<\/a><\/sup> the contested case rules do not specifically permit briefs from persons having no standing to intervene. However, the ALJ may have the inherent authority to permit them.[47]<\/a><\/sup> Since the purposes and benefits of an amicus brief in contested cases would be essentially the same as in civil actions, such briefs should be permitted in an appropriate case, consistent with civil practice. The amicus brief filed by a person without standing to intervene undoubtedly would be more restrictive in scope than the brief from a person with standing. For example, the amicus brief would be limited to advice on doubtful matters of law and would not be permitted to raise issues not raised by the parties.[48]<\/a><\/sup> If an amicus brief were to be authorized, the person submitting it would not become a party.[49]<\/a><\/sup><\/p>\n Many contested cases are commenced after the filing of a complaint. The general rule is that the complaining party at whose instigation a proceeding is instituted does not become a party to the proceeding or have any control over it.<\/a>[50]<\/a><\/sup> Moreover, in the absence of a specific law providing otherwise, an agency may commence a contested case even if the person on whose complaint it acts is not, and cannot become, a party with legal standing.[51]<\/a><\/sup> If the complaining party’s dispute with a licensee is settled, the agency may proceed with a case even if the complaint is withdrawn.[52]<\/a><\/sup> Conversely, a member of the public ordinarily cannot compel an agency to take disciplinary action[53]<\/a><\/sup> or appeal the disciplinary action imposed by the agency if deemed to be unsatisfactory.[54]<\/a><\/sup><\/p>\n The APA does not specifically authorize class actions. In the absence of specific statutory authorization, it has been held that an agency may not authorize them.[55]<\/a><\/sup> Class actions are specifically authorized under the Minnesota Human Rights Act.[56]<\/a><\/sup> Whether class actions are permissible in other proceedings, by virtue of the ALJ’s authority to apply the Rules of Civil Procedure for the District Courts in ruling on motions, is an open question.<\/p>\n The rules governing consolidation of contested cases do not limit the number of cases that may be combined by an agency or ALJ.[57]<\/a><\/sup> On occasion, an agency may combine contested cases with a common legal issue arising from multiple appeals filed by dozens of similarly situated appellants. The resulting effect is that the combined contested case is akin to a small class action with several dozen parties. Although there are no provisions in the OAH rules that expressly provide for class action representative party status, some degree of judicial efficiency may be achieved if all parties enter into a stipulation of facts and present the legal issue on cross-motions for summary disposition.<\/p>\n Under the Minnesota Equal Access to Justice Act (MEAJA)[58]<\/a><\/sup> if a prevailing party in a contested case proceeding demonstrates by application that the position of the state was not substantially justified, the ALJ \u201cshall award \u201cfees and other expenses to the party unless special circumstances make an award unjust.\u201d[59]<\/a><\/sup> Not all parties who successfully overturn an agency action in a contested case qualify as a \u201cparty\u201d under MEAJA.<\/p>\n Under the MEAJA, a \u201cparty\u201d means a person named or admitted as a party in a contested case proceeding or court action and who is \u201can unincorporated business, partnership, corporation, association, or organization, having not more than 500 employees\u201d[60]<\/a><\/sup> and \u201cwhose annual revenues did not exceed $7,000,000 at the time the contested case proceeding was initiated.\u201d[61]<\/a><\/sup> The MEAJA limitations on parties make it clear that the parties entitled to recover fees and expenses are small businesses.[62]<\/a><\/sup><\/p>\n The MEAJA excludes from its definition of \u201cparty\u201d a \u201cperson providing services pursuant to licensure or reimbursement on a cost basis by the Department of Health or the Department of Human Services, when that person is named or admitted or seeking to be admitted as a party in a matter which involves the licensing or reimbursement rates, procedures, or methodology applicable to those services.\u201d[63]<\/a><\/sup><\/p>\n In addition to the persons named as parties in the agency’s notice of and order for hearing, other persons may become parties by filing a timely petition for intervention.[64]<\/a><\/sup> The petition must contain factual allegations showing that intervention is proper. Mere conclusions will not suffice.[65]<\/a><\/sup> A proper showing is one that demonstrates that the petitioner is entitled to intervene. Under the intervention rule, a petition must show how the petitioner’s legal rights, duties, or privileges may be determined or affected by the contested case and that the petitioner may be directly affected or that intervention is authorized by statute, rule, or court decision. Also, the petition must cite the statute authorizing intervention, if any, and the grounds and purposes for which intervention is sought. Thus, if the petitioner’s rights, duties, and privileges will not be directly affected by the contested case, intervention is allowable only if authorized by statute, rule, or court decision. Whether a person’s interest is legally sufficient to require intervention is a question of law.[66]<\/a><\/sup><\/p>\n The language of the contested case intervention rule is different from the language of the civil rule governing intervention as a right. The civil rule does not base standing to intervene on a person’s legal rights, duties, or privileges. Instead, it authorizes intervention by a person claiming an interest in the property or transaction that is the subject of the action, if the person’s ability to protect that interest may be impeded or impaired if intervention is not permitted.[67]<\/a><\/sup> However, both rules require a timely application for intervention and condition the right to intervene on the absence of adequate representation by existing parties. Moreover, neither rule requires a showing that the applicant will necessarily gain or lose if intervention is not permitted.[68]<\/a><\/sup> Although the civil rule does not require that the interest asserted may be directly affected, some courts require such a showing in civil actions.[69]<\/a><\/sup> Since one\u2019s interests frequently involve one\u2019s rights, duties, and privileges, and since the two rules are similar in other respects, case law under rule 24.01 will be instructive in resolving some issues arising under the contested case rule.[70]<\/a><\/sup><\/p>\n The criteria for standing to intervene in a contested case are different from the criteria for standing to appeal a final agency decision under Minnesota Statutes section 14.63. The statute permits any \u201cperson aggrieved\u201d by a final decision to appeal. However, the criteria for standing to intervene in a contested case are similar to the criteria used to determine a person’s standing to challenge the validity of a rule under Minnesota Statutes section 14.44 (2014). That statute grants standing to persons whose legal rights or privileges may be interfered with or impaired by the challenged rule. Standing to challenge a rule is accorded to persons who are \u201cinjured in fact,\u201d absent a discernible legislative intent to the contrary in a given case.[71]<\/a><\/sup> Applying the injury-in-fact standard, nonprofit consumer advocate corporations alleging economic injury to their individual members as a result of an agency ban on prescription drug price advertising have standing to challenge a rule in court.[72]<\/a><\/sup> In addition, a taxpayer has standing to challenge a rule under which tax monies are expended on the grounds that it was improperly promulgated.[73]<\/a><\/sup><\/p>\n The injury-in-fact test adopted under section 14.44 is consistent with the construction of similar language by courts of other states. A Wisconsin statute granting standing to appeal a final agency decision if it directly affects a person’s rights, duties, or privileges was construed in Wisconsin Environmental Decade v. Public Service Commission<\/em>[74]<\/a><\/sup> to require two showings: (1) direct injury to the person’s interest, and (2) an interest that is protected by law. In that case, the court noted that its test is similar to that adopted in Data Processing Service Organizations v. Camp.<\/em>[75]<\/a><\/sup> In effect, the court equated a legal right with a legally recognized interest. Since the law of standing to intervene is closely related to the law of standing to appeal,[76]<\/a><\/sup> such cases are instructive on the issue of the nature of the legal rights, duties, and privileges that should be recognized in determining a person’s standing (right) to intervene in a contested case.<\/p>\n The petition for intervention must be served on all parties and the agency. Within seven days, those parties objecting to the petition must file a notice of their objection that states the reasons for their objection. The objection must be served on all parties, the petitioner, and the agency. If there is insufficient time to file written objections before the hearing commences, oral objections may be made at the hearing.[77]<\/a><\/sup> A hearing on the petition is required only if the ALJ determines that a full record is needed to decide if intervention is appropriate or to determine the permissible scope of intervention.[78]<\/a><\/sup> If no hearing is held, these matters are determined on the basis of the filings submitted. In determining whether intervention is permissible, the petitioner is not required to prove his allegations. In the absence of sham or frivolity, the allegations in the petition will be accepted as true.[79]<\/a><\/sup><\/p>\n If the requisite grounds for intervention exist, the petition must be granted unless the petitioner’s interests are adequately represented by an existing party.[80]<\/a><\/sup> Generally, the petitioner must show that existing parties do not adequately represent his or her interests.[81]<\/a><\/sup> However, the showing required is minimal,[82]<\/a><\/sup> and where the intervenor’s interest is similar to, but not identical with, a party’s interest, intervention should not be denied unless it is determined that representation by existing parties will, in fact, be adequate.[83]<\/a><\/sup> A party’s representation generally is considered to be adequate to protect the proposed intervenor’s interest if there is no showing of collusion between the representative and the opposing party, if the representative does not represent an interest adverse to that of the petitioner, and if the representative does not fail in the fulfillment of its duty.[84]<\/a><\/sup><\/p>\n Historically, courts have been reluctant to permit taxpayers or other interested persons to intervene in matters involving the public interest when those matters are prosecuted or defended by the proper governmental authority.[85]<\/a><\/sup> Where an agency represents the public interest, a strong showing of inadequate representation must be made; it must be shown that collusion, adversities of interest, possible nonfeasance, or incompetence is involved.[86]<\/a><\/sup> However, in administrative proceedings, the courts have recognized that agencies may not adequately represent the public interest in all cases[87]<\/a><\/sup> and that members of the public should be allowed to intervene in some cases as private attorneys general to vindicate broad public interests. Thus, in Office of Communication of United Church of Christ v. Federal Communications Commission,<\/em>[88]<\/a><\/sup> the court granted intervention to members of the listening public in a license renewal proceeding noting, in part, that the agency was unable to monitor thousands of broadcasters to evaluate their service. It is clear that an agency may be unable to adequately represent the public interest for other reasons, such as lack of staff, money, or commitment. Furthermore, there may be no single public interest to represent, but competing public interests that cannot be effectively represented by the agency alone.[89]<\/a><\/sup> A private citizen may also have standing to assert broad public rights if the state has adopted a public trust doctrine[90]<\/a><\/sup> or if such a standing is authorized by statute. For example, in Minnesota citizens have standing to intervene in all administrative proceedings having an adverse environmental impact.[91]<\/a><\/sup><\/p>\n Most rules of civil procedure recognize two types of intervention: intervention of right and permissive intervention that is discretionary with the court.[92]<\/a><\/sup> A person allowed to intervene under either alternative becomes a party to the case with nearly all the rights of an original party.[93]<\/a><\/sup> The intervention rule for contested cases is structured in a different fashion. In contested cases, the ALJ does not have discretionary authority to allow permissive intervention as a party. If a proper showing is not made, permissive intervention is not available under the rule. Instead, the ALJ may permit the unsuccessful applicant to engage in limited participation at the hearing.[94]<\/a><\/sup> Such \u201cpermissive participation,\u201d which is available to any person, is discretionary with the ALJ and is limited to entering an appearance, presenting testimony and exhibits, and questioning witnesses.[95]<\/a><\/sup> Persons who are allowed limited participation in the hearing do not become parties to the contested case and do not enjoy the rights available to parties.[96]<\/a><\/sup><\/p>\n Although permissive intervention as a party is not available under the contested case rule, such permissive intervention may be available under a statute, a court decision, or a rule of the agency that orders the hearing. Some agency statutes[97]<\/a><\/sup> and rules[98]<\/a><\/sup> specifically address intervention in contested cases.<\/p>\n Intervention is available after a contested case has been initiated by the agency’s service of the notice of and order for hearing. There is; however, no provision for intervention at an earlier time, even though the agency may be engaged in negotiations with a potential party. Intervention is not available in informal negotiations undertaken by an agency before the commencement of a contested case proceeding.[99]<\/a><\/sup><\/p>\n Once a contested case is initiated, there are no stated time limitations for filing intervention petitions in contested cases. Where good reasons exist; however, an agency may specify the final date for the submission of such petitions in its notice of and order for hearing, if it obtains the prior approval of the ALJ.[100]<\/a><\/sup> In addition, the ALJ may set intervention deadlines in a prehearing order. In all other cases, timeliness is determined by the ALJ based on the circumstances at the time of filing.[101]<\/a><\/sup> The criteria for determining the timeliness of intervention petitions in the courts are applicable in contested cases.\n
6.1 Party Status<\/h2>\n
6.1.1 Indispensable, Necessary, and Proper Parties<\/h3>\n
6.1.2 Nonparty Participation<\/h3>\n
6.1.3 Class Actions<\/h3>\n
6.1.4 Prevailing Party for Attorneys\u2019 Fees<\/h3>\n
6.2 Intervention<\/h2>\n
6.2.1 Petition<\/h3>\n
6.2.2 Objections and Hearing<\/h3>\n
6.2.3 Adequacy of Existing Representation<\/h3>\n
6.2.4 Intervention as a Right or Privilege<\/h3>\n
6.2.5 Time for Intervention<\/h3>\n