APRIL 2025 | 27 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. evidence.”17 The court invalidated the underlying administrative rule establishing “preponderance of the evidence” as the standard.18 The Johnson case emphasized that because the defendant faced “the possible loss of a constitutionally protected property right, the loss of a livelihood, and the loss of a professional reputation,” due process demands the government meet a clear and convincing evidence standard. Although Johnson involved a professional dental license, its reasoning applies equally to a general business license.19 The OMMA summary suspension rule goes far beyond imposing a lower standard of proof in suspending a business license. It would seem to remove any burden at all from the government, placing the burden solely and squarely on the licensee. Under this rule, OMMA merely needs to allege that “health, safety, or welfare” requires suspension. Essentially, a licensee who has invested time and money in obtaining a business license may have that license summarily suspended, and then the licensee has to obtain a hearing and prove the suspension is not valid. Someone defending themselves from government action generally is entitled to assess the evidence and claims of the government and then prepare a defense. This begs the question: How is a licensee supposed to defend against claims and evidence the government has not presented? A licensee can always challenge license revocations and suspensions in district court, and practitioners should be aware of available appellate options.20 Such a process, however, can be time-consuming and expensive, especially when the licensee has been temporarily put out of business. The lack of procedures at the agency level thus raises serious due process concerns. Discovery Many agencies, like the Oklahoma Corporation Commission, have detailed discovery rules that allow interrogatories, document production and depositions and provide that discovery on some dockets is governed by the Oklahoma Discovery Code.21 But OMMA has not adopted the Discovery Code as set forth in the Oklahoma Rules of Civil Procedure, nor has it adopted any other discovery framework. The only discovery rule is OAC Section 442:1-1-10, but it merely allows OMMA to place limits on potential discovery.22 OMMA rules do not prescribe the manner or method to obtain discoverable information. The Oklahoma Administrative Procedures Act, to which OMMA is subject, allows limited subpoenas and depositions, but it does not confer any individual rights to discovery in administrative actions.23 Because there are no methods for discovery or rules governing discovery, there is no rule-based mechanism in which to enforce fair discovery in OMMA proceedings. Due process, at its core, requires the right to obtain discovery, including the right to “information concerning the claims of the opposing party, reasonable opportunity to be heard, and the right to confront the unfavorable witnesses.”24 In criminal cases, defendants have a due process right to discover exculpatory evidence. While an administrative OMMA hearing need not go that far, due process would seem to require OMMA, at a minimum, to disclose its evidence and findings. This is particularly true when OMMA places the burden of proof on the individual to defend themselves. “The crux of the matter is that democracy implies respect for the elementary rights of the person, however suspect or undeserving, a democratic government must practice fairness – and fairness can rarely be obtained by secret, one-sided determination of facts and decisive rights.”25 In Greene v. McElroy, the United States Supreme Court reversed an administrative revocation of a security clearance because the appellant “was denied access to much of the information adverse to him and any opportunity to confront or cross-examine witnesses against him.”26 The court held that where “governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”27 The appellant “was denied access to much of the information adverse to him and any opportunity to confront or cross-examine witnesses against him.”28 As a result, the court reversed the actions of the administrative agency. In OMMA hearings, OMMA has no obligation under its own rules to produce any information adverse to the licensee. OMMA may withhold even basic information, including the complaint and evidence that led to the OMMA investigation, OMMA investigative findings and body camera footage from OMMA investigators. To ensure compliance with recordkeeping and tracking of product, OMMA requires
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