This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of Appeal of the

Determination of the Responsible Authority

for the City of La Crescent that certain data

concerning Keith W. Garrett are accurate

and/or complete.

Filed July 8, 1997


Harten, Judge

Minnesota Department of Administration

File No. 1-0200-10467-2

Keith W. Garrett, 514 McIntosh Road, La Crescent, MN 55947 (Relator - pro se)

Kent A. Sulem, League of Minnesota Cities, 145 University Avenue W., St. Paul, MN 55103-2044 (for Respondent City of La Crescent)

William Von Arx, La Crescent City Attorney, 274 South Kingston Street, P.O. Box 229, Caledonia, MN 55921 (for Respondent City of La Crescent)

Amy V. Kvalseth, Assistant Attorney General, 525 Park Street, Ste. 200, St. Paul, MN 55103 (for Commissioner of Administration)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.



Relator Keith Garrett seeks certiorari review of a decision of the Commissioner of Administration disposing of his challenge pursuant to Minn. Stat. § 13.04, subd. 4 (1996), to the completeness and accuracy of certain minutes of a City of La Crescent council meeting at which relator made a public statement. The administrative law judge (the ALJ) submitted a recommended order to the commissioner granting summary disposition in favor of respondent city, but nonetheless directing the city to attach an addendum to the minutes substantially adopting relator's requested changes. The Commissioner of Administration adopted the ALJ's order. On appeal, relator, unsatisfied with the addendum, claims that his constitutional rights were violated by irregularities in the contested case proceeding and by the refusal of the ALJ and commissioner to allow the submission of material evidence. We affirm.


Our review of the Commissioner of Administration's decision is governed by the Administrative Procedure Act. Minn. Stat. § 14.63-.69 (1996); see In re American Freight Sys., Inc., 380 N.W.2d 192, 195 (Minn. App. 1986) (reviewing decision of Minnesota Transportation Regulation Board). Relator has the burden of proof on appeal when challenging an agency decision under Minn. Stat. § 14.69. Markwardt v. State Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).

Agency decisions are presumed to be correct by reviewing courts, and will be reversed only when they reflect an error of law or when the findings are arbitrary and capricious or unsupported by substantial evidence.

In re Hutchinson, 440 N.W.2d 171, 176 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989) (citation omitted).

1. Respondents' brief argues that relator lacked standing to challenge the accuracy of the data in question. Relator did not challenge the agency's decision relating to standing nor have respondents filed a notice of review. It is therefore unnecessary for us to address this issue and we express no opinion on the propriety of relator's standing before the agency. See Minn. R. Civ. App. P. 106 (to obtain review, respondent may file notice of review); In re Minnesota Indep. Equal Access Corp.'s Application for Certificate of Pub. Convenience & Necessity, 477 N.W.2d 516, 521 (Minn. App. 1991) (issues not raised by notice of review will not be considered on appeal from administrative decision), review denied (Minn. Jan. 30, 1992); Smoliak v. Myhr, 361 N.W.2d 153, 157 (Minn. App. 1985) (court will decline to address additional issue raised by respondent where respondent failed to file a notice of review).

2. Relator argues that irregularities in the agency's decision-making process deprived him of a fair hearing in violation of his constitutional rights. Relator does not allege what constitutional provisions were violated, nor does his brief specifically set forth constitutional analysis or citation, nor do we see any obvious prejudicial error; therefore, we need not address relator's general allegation of unconstitutionality.

An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.

Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (citations omitted).

3. Relator also contends that the agency proceedings were tainted by a number of procedural irregularities. First, relator argues that the ALJ engaged in ex parte communications in violation of Minn. R. 1400.7700 (1995). The record, however, does not support relator's allegations that improper ex parte communication occurred.

Second, relator argues that the conditions of summary disposition were not met. The record indicates that the parties agreed to have the case decided by summary disposition contingent on the submission of tape recordings of the city council meeting. Relator contends that the tapes submitted by the city were altered and were not the originals. Relator, however, did not offer any evidence to the ALJ challenging the authenticity of the tapes; relator merely asserted that, after listening to the tapes, he believed the tapes had been altered. But after listening to the tapes, the ALJ found that the tapes were originals. Under the circumstances, we conclude that the ALJ's determination that the city submitted the original tapes and his consequent refusal to consider additional evidence concerning tampering was not arbitrary, capricious, or unsupported by substantial evidence.

Third, relator argues that the ALJ improperly relied on an affidavit attesting to the authenticity of tape recording of the city council meeting. The record demonstrates, however, that the ALJ indicated that reliance on the affidavit was unnecessary because the parties had agreed that the ALJ would review the hearing tapes to resolve factual disputes. Thus, relator has failed to demonstrate how this alleged procedural irregularity was prejudicial. See Minn. R. Civ. P. 61 (harmless error not ground for disturbing order).

4. Relator argues that the agency's decision is erroneous because the ALJ denied him the opportunity to submit expert testimony from a sound engineer regarding the authenticity of the hearing tapes. Additionally, relator contends that the commissioner's decision is not supported by substantial evidence because the commissioner relied on the ALJ's findings rather than expert evidence submitted by relator in his notice of exceptions challenging the authenticity of the hearing tapes.

Pursuant to Minn. R. 1400.5500 (1995) and 1400.7300 (1995), the ALJ has the power to determine what evidence is admissible and make decisions on discovery requests. District courts in civil trials have considerable discretion in granting or denying discovery requests, and absent a clear abuse of discretion, the district court's decision will not be reversed on appeal. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). Likewise, we have concluded that the abuse of discretion standard of review is appropriate when reviewing administrative discovery decisions. Zahavy v. University of Minn., 544 N.W.2d 32, 39 (Minn. App. 1996), review denied (Minn. May 9, 1996). A district court may limit discovery upon a determination that it would be:

unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation.

Minn. R. Civ. P. 26.02(a)(3).

The record indicates that after considering relator's request for additional discovery and his allegations that the hearing tapes had been altered, the ALJ concluded that relator's request was unduly burdensome and further discovery was unnecessary. Moreover, the commissioner's findings demonstrate that she also considered the evidence relator submitted challenging the authenticity of the tapes, but concluded that the evidence did not merit further discovery because even if there were "conclusive evidence that the tapes had been altered it is unclear what reliable data or evidence could be produced to correct the alleged alteration." Relator argues that the commissioner erred by concluding that there was no reliable evidence that could be produced to determine what occurred during the city council meeting. Relator contends that he could have called witnesses to testify as to what transpired. There is no evidence in the record, however, that there are witnesses relator could have offered in his support; therefore, relator's claim is speculative, and the agency did not err by ordering summary disposition. See In re Assessment Issued to Leisure Hills Health Care Ctr., 518 N.W.2d 71, 75 (Minn. App. 1994) (to withstand motion for summary disposition party must demonstrate specific facts that create a genuine issue for hearing), review denied (Minn. Sept. 16, 1994). We conclude that the agency did not abuse its discretion by denying relator's request to submit expert testimony from a sound engineer regarding the audio tapes of the city council meeting.