ALJDEC decisions subject to certification as final

18A-001-NOT · Secretary of State · 2018-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna Dawson,

Petitioner,

vs.

Arizona Secretary of State,

Respondent.

No. 18A-001-NOT

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 7, 2018, at 9:00 a.m.

APPEARANCES: Donna Dawson (“Petitioner”) failed to appear; the Arizona Secretary of State (“SOS”) appeared through Pamela J. Linnins, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

SOS referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing on Petitioner’s appeal of SOS’s denial of her Notary Commission.

On January 16, 2018, SOS issued a Notice of Hearing, setting a hearing on March 7, 2018, at 9:00 a.m. at the OAH. The Notice of Hearing advised that “[i]f the Petitioner fails to appear, the Administrative Law Judge may proceed in the Petitioner’s absence.”

SOS mailed a copy of the Notice of Hearing to Petitioner at the address of record on her application.

On February 12, 2018, Petitioner filed a document with OAH, informing it that her employment would prevent her from attending the hearing, but stating that she had provided all the documents that were needed to resolve her appeal to SOS. On February 13, 2018, the Administrative Law Judge (“ALJ”) issued an order, stating in relevant part as follows:

[Petitioner] has filed a document stating that she is aware of the hearing scheduled on March 7, 2018, but that she will not be able to attend the hearing due to new employment in Mesa. Petitioner alludes to documentation filed with [SOS], including her renewal application, the fee, bond and rider, and “Signed Motions for Judge Fink pertaining to 2008 matters.”

The SOS has referred this matter to [OAH], an independent state agency, for an evidentiary hearing. Because OAH is not connected with SOS, documents filed with SOS are not necessarily provided to OAH. Petitioner may appear telephonically at the hearing by filing a written request with OAH and filing the exhibits that she intends to offer into evidence with OAH, with copies to SOS’s attorney. Petitioner’s failure to attend or to offer any evidence at the March 7, 2018 hearing likely will result in a result that is adverse to her position.

OAH staff sent the February 13, 2018 order to Petitioner at her address of record.

On March 5, 2018, Petitioner filed a Motion to Show Conflict of Interest and a Motion to Show Res Judicata, again stating that she would not be able to attend the hearing. On March 5, 2018, the ALJ issued an order denying the motions, in relevant part as follows:

A.A.C. R2-19-106(C) requires parties to file motions at least 15 days before the hearing or to establish good cause for the untimely filing. Because the hearing in this matter is scheduled on March 7, 2018, two days hence,

IT IS ORDERED denying Petitioner’s motions as untimely.

In addition, Petitioner’s motions are unclear as to the relief she requests or the bases for that relief. Neither the Attorney General’s Office nor the Secretary of State were involved in Petitioner’s criminal prosecution. There is no conflict of interest or factual basis to apply the legal doctrine of res judicata. Therefore, it appears on their face that Petitioner’s motions lack any merit. Petitioner again states that she will not be attending the hearing. In that event, the hearing will proceed in her absence, which likely will result in an adverse determination.

OAH staff send the March 5, 2018 order to Petitioner’s address of record.

Although the start of the hearing was delayed eighteen minutes, Petitioner did not request to appear telephonically, did not appear personally or through an attorney, and did not contact OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Petitioner did not present any evidence to prosecute her appeal of SOS’s denial of her Notary Commission.

CONCLUSIONS OF LAW

The Notice of Hearing that SOS mailed to Petitioner at her address of record was reasonable and it appears that she actually received notice of the hearing.

Petitioner bears the burden of proof to establish that SOS violated applicable law by wrongfully, inappropriately, or incorrectly denying her Notary Commission under the circumstances of this case by a preponderance of the evidence.

Petitioner by failing to appear or to present any evidence at the duly noticed hearing failed to bear her burden to establish the merits of her appeal.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order, the Arizona Secretary of State’s denial of a Notary Commission to Petitioner Donna Dawson’s shall be affirmed and Petitioner’s appeal of SOS’s denial of a Notary Commision shall be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, March 7, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Evelia McGee, Notary Public Complaint Coordinator

Secretary of State