Jus 800

CHAPTER Jus 800 MODEL RULES OF PRACTICE AND PROCEDURE

Statutory Authority: RSA 541-A:16, I and 541-A:30-a, II, III

PART Jus 801 PURPOSE AND APPLICABILITY

Jus 801.01 Purpose. The purpose of this chapter is to provide model rules of practice and procedure for adjudicative proceedings conducted by agencies that have not adopted effective rules governing the conduct of administrative hearings. The provisions of these rules are intended to supplement the procedures established by RSA 541-A and procedures established under any statute relating to the agency conducting the hearing.

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Jus 801.02 Applicability.

(a) The rules in this chapter shall apply to any adjudicative proceeding conducted by an agency that has not adopted rules for adjudicative proceedings.

(b) The rules in this chapter shall also apply to an adjudicative proceeding conducted by an agency that has adopted rules governing the conduct of administrative hearings only to the extent that the agency's rules do not address a practice or procedure addressed in the model rules. An agency rule that addresses a specific procedure shall control that procedure, and the model rule shall not apply even if the agency rule conflicts with, is narrower than, or is broader than these model rules.

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PART Jus 802 DEFINITIONS

Jus 802.01 Definitions.

(a) “Agency” means “agency” as defined by RSA 541-A:1, II, namely, “each state board, commission, department, institution, officer, or any other state official or group, other than the legislature or the courts, authorized by law to make rules or determine contested cases.”

(b) “Appearance” means a written notification to the agency that a party or a party’s representative intends to actively participate in a hearing.

(c) “Hearing” means “adjudicative proceeding” as defined by RSA 541-A:1, I, namely, “the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36.”

(d) “Motion” means a request to the presiding officer for an order or ruling directing some act to be done in favor of the party making the motion, including a statement of justification or reasons for the request.

(e) “Natural person” means a human being.

(f) “Party” means “party” as defined by RSA 541-A:1, XII, namely, “each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party.” The term “party” includes all intervenors in a proceeding, subject to any limitations established pursuant to RSA 541-A:32, III.

(g) “Person” means “person” as defined by RSA 541-A:1, XIII, namely, “any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.”

(h) “Presiding officer” means presiding officer as defined in RSA 541-A:1, XIV, namely, “that individual to whom the agency has delegated the authority to preside over a proceeding, if any; otherwise it shall mean the head of the agency.”

(i) “Proof by a preponderance of the evidence” means a demonstration by admissible evidence that a fact or legal conclusion is more probable than not to be true.

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PART Jus 803 PRESIDING OFFICER; WITHDRAWAL AND WAIVER OF RULES

Jus 803.01 Presiding Officer; Appointment; Authority.

(a) All hearings shall be conducted for an agency by a natural person appointed or authorized to serve as a presiding officer.

(b) A presiding officer shall as necessary:

(1) Regulate and control the course of a hearing;

(2) Facilitate an informal resolution of an appeal;

(3) Administer oaths and affirmations;

(4) Issue subpoenas to compel the attendance of witnesses at hearings or the production of documents, if so authorized by law;

(5) Receive relevant evidence at hearings and exclude irrelevant, immaterial or unduly repetitious evidence;

(6) Rule on procedural requests, including adjournments or postponements, at the request of a party or on the presiding officer's own motion;

(7) Question any person who testifies;

(8) Cause a complete record of any hearing to be made, as specified in RSA 541-A:31, VI; and

(9) Take any other action consistent with applicable statutes, rules and case law necessary to conduct the hearing and complete the record in a fair and timely manner.

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Jus 803.02 Withdrawal of Presiding Officer or Agency Official.

(a) Upon his or her own initiative or upon the motion of any party, a presiding officer or agency official shall, for good cause withdraw from any hearing.

(b) Good cause shall exist if a presiding officer or agency official:

(1) Has a direct interest in the outcome of a proceeding, including, but not limited to, a financial or family relationship, within the third degree of relationship, with any party; or

(2) Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of a case; or

(3) Personally believes that he or she cannot fairly judge the facts of a case.

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Jus 803.03 Waiver or Suspension of Rules by Presiding Officer. The presiding officer, upon his or her own initiative or upon the motion of any party, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues pending before the agency than would adherence to a particular rule or procedure.

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PART Jus 804 FILING, FORMAT AND DELIVERY OF DOCUMENTS

Jus 804.01 Date of Issuance or Filing. All written documents governed by these rules shall be rebuttably presumed to have been issued on the date noted on the document and to have been filed with the agency on the actual date of receipt by the agency, as evidenced by a date stamp placed on the document by the agency in the normal course of business.

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Jus 804.02 Format of Documents.

(a) All correspondence, pleadings, motions or other documents filed under these rules shall:

(1) Include the title and docket number of the proceeding, if known;

(2) Be typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;

(3) Be signed by the party or proponent of the document, or, if the party appears by a representative, by the representative; and

(4) Include a statement certifying that a copy of the document has been delivered to all parties to the proceeding in compliance with Jus 804.03.

(b) A party or representative's signature on a document filed with the agency shall constitute certification that:

(1) The signer has read the document;

(2) The signer is authorized to file it;

(3) To the best of the signer’s knowledge, information and belief there are good and sufficient grounds to support it; and

(4) The document has not been filed for purposes of delay.

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Jus 804.03 Delivery of Documents.

(a) Copies of all petitions, motions, exhibits, memoranda, or other documents filed by any party to a proceeding governed by these rules shall be delivered by that party to all other parties to the proceeding.

(b) All notices, orders, decisions or other documents issued by the presiding officer or agency shall be delivered to all parties to the proceeding.

(c) Delivery of all documents relating to a proceeding shall be made by personal delivery or by depositing a copy of the document, by first class mail, postage prepaid, in the United States mail, addressed to the last address given to the agency by the party.

(d) When a party appears by a representative, delivery of a document to the party's representative at the address stated on the appearance filed by the representative shall constitute delivery to the party.

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PART Jus 805 TIME PERIODS

Jus 805.01 Computation of Time.

(a) Unless otherwise specified, all time periods referenced in this chapter shall be calendar days.

(b) Computation of any period of time referred to in these rules shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

(c) If the last day of the period so computed falls on a Saturday, Sunday or legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday or legal holiday.

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PART Jus 806 MOTIONS

Jus 806.01 Motions; Objections.

(a) Motions shall be in written form and filed with the presiding officer, unless made in response to a matter asserted for the first time at a hearing or on the basis of information which was not received in time to prepare a written motion.

(b) Oral motions and any oral objection to such motions shall be recorded in full in the record of the hearing. If the presiding officer finds that the motion requires additional information in order to be fully and fairly considered, the presiding officer shall direct the moving party to submit the motion in writing, with supporting information.

(d) Failure by an opposing party to object to a motion shall not in and of itself constitute grounds for granting the motion.

(e) The presiding officer shall rule upon a motion after full consideration of all objections and other factors relevant to the motion.

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PART Jus 807 NOTICE OF HEARING; APPEARANCES; PRE-HEARING CONFERENCES

Jus 807.01 Commencement of Hearing. A hearing shall be commenced by an order of the agency giving notice to the parties as required by Jus 807.03.

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Jus 807.02 Docket Numbers. A docket number shall be assigned to each matter to be heard which shall appear on the notice of hearing and all subsequent orders or decisions of the agency.

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Jus 807.03 Notice of Hearing.

(a) A notice of a hearing issued by an agency shall contain the information required by RSA 541-A:31, III, namely:

(1) A statement of the time, place and nature of any hearing;

(2) A statement of the legal authority under which a hearing is to be held;

(3) A reference to the particular statutes and rules involved including this chapter;

(4) A short and plain statement of the issues presented;

(5) A statement that each party has the right to have an attorney represent them at their own expense; and

(6) For proceedings before an agency responsible for occupational licensing, a statement that each party has the right to have the agency provide a certified shorthand court reporter at the party’s expense and that any such request shall be submitted in writing at least 10 days prior to the hearing.

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Jus 807.04 Appearances and Representation.

(a) A party or the party’s representative shall file an appearance that includes the following information:

(1) A brief identification of the matter;

(2) A statement as to whether or not the representative is an attorney and if so, whether the attorney is licensed to practice in New Hampshire; and

(3) The party or representative's daytime address and telephone number.

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Jus 807.05 Prehearing Conference. Any party may request, or the presiding officer shall schedule on his or her own initiative, a prehearing conference in accordance with RSA 541-A:31, V to consider:

(a) Offers of settlement;

(b) Simplification of the issues;

(d) Limitations on the number of witnesses;

(e) Changes to standard procedures desired during the hearing by consent of the parties;

(f) Consolidation of examination of witnesses; or

(g) Any other matters which aid in the disposition of the proceeding.

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PART Jus 808 ROLES OF AGENCY STAFF AND COMPLAINANTS

Jus 808.01 Role of Agency Staff in Enforcement or Disciplinary Hearings. Unless called as witnesses, agency staff shall have no role in any enforcement or disciplinary hearing.

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Jus 808.02 Role of Complainants in Enforcement or Disciplinary Hearings. Unless called as a witness or granted party or intervenor status, a person who initiates an adjudicative proceeding by complaining to an agency about the conduct of person who becomes a party shall have no role in any enforcement or disciplinary hearing.

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PART Jus 809 INTERVENTION

Jus 809.01 Intervention.

(a) A non-party may intervene in a matter pending before an agency under the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that the non-party's rights or other substantial interests might be affected by the proceeding or that the non-party qualifies as an intervenor under any provision of law.

(b) If the presiding officer determines that such intervention would be in the interests of justice and would not impair the orderly and prompt conduct of the hearing, he or she shall grant the motion for intervention.

(c) Except as limited by the presiding officer under RSA 541-A:32, III, an intervenor shall be entitled to participate in a hearing as a party.

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PART Jus 810 POSTPONEMENT REQUESTS AND FAILURE TO ATTEND HEARING

Jus 810.01 Postponements.

(a) Any party to a hearing may make an oral or written motion that a hearing be postponed to a later date or time.

(b) If a postponement is requested by a party to the hearing, it shall be granted if the presiding officer determines that good cause has been demonstrated. Good cause shall include the unavailability of parties, witnesses or attorneys necessary to conduct the hearing, the likelihood that a hearing will not be necessary because the parties have reached a settlement or any other circumstances that demonstrate that a postponement would assist in resolving the case fairly.

(c) If the later date, time and place are known at the time of the hearing that is being postponed, the date, time and place shall be stated on the record. If the later date, time and place are not known at the time of the hearing that is being postponed, the presiding officer shall issue a written scheduling order stating the date, time and place of the postponed hearing as soon as practicable.

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Jus 810.02 Failure to Attend Hearing. If any party to whom notice has been given in accordance with Jus 807.03 fails to attend a hearing, the presiding officer shall declare that party to be in default and shall either:

(a) Dismiss the case, if the party with the burden of proof fails to appear; or

(b) Hear the testimony and receive the evidence offered by a party, if that party has the burden of proof in the case.

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PART Jus 811 REQUESTS FOR INFORMATION OR DOCUMENTS

Jus 811.01 Voluntary Production of Information.

(a) Each party shall attempt in good faith to make complete and timely response to requests for the voluntary production of information or documents relevant to the hearing.

(b) When a dispute between parties arises concerning to a request for the voluntary production of information or documents, any party may file a motion to compel the production of the requested information under Jus 811.02.

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Jus 811.02 Motions to Compel Production of Information.

(a) Any party may make a motion requesting that the presiding officer order the parties to comply with information requests. The motion shall be filed at least 30 days before the date scheduled for the hearing, or as soon as possible after receiving the notice of hearing if such notice is issued less than 30 days in advance of the hearing.

(b) The moving party’s motion shall:

(1) Set forth in detail those factors which it believes justify its request for information; and

(2) List with specificity the information it is seeking to discover.

(c) When a party has demonstrated that such requests for information are necessary for a full and fair presentation of the evidence at the hearing, the presiding officer shall grant the motion.

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Jus 811.03 Mandatory Pre-Hearing Disclosure of Witnesses and Exhibits. At least 5 days before the hearing the parties shall exchange a list of all witnesses to be called at the hearing with a brief summary of their testimony, a list of all documents or exhibits to be offered as evidence at the hearing, and a copy of each document or exhibit.

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PART Jus 812 RECORD, PROOF, EVIDENCE AND DECISIONS

Jus 812.01 Record of the Hearing.

(a) The agency shall record the hearing by tape recording or other method that will provide a verbatim record.

(b) If any person requests a transcript of the taped record, the agency shall cause a transcript to be prepared and, upon receipt of payment for the cost of the transcription, shall provide copies of the transcript to the requesting party.

(c) At the request of a party to any proceeding involving disciplinary action before an agency responsible for occupational licensing, the record of the proceeding shall be made by a certified shorthand court reporter provided by the agency at the requesting party’s expense. A request for a certified shorthand court reporter shall be filed at least 10 days prior to the hearing.

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Jus 812.02 Standard and Burden of Proof. The party asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

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Jus 812.03 Testimony; Order of Proceeding.

(a) Any person offering testimony, evidence or arguments shall state for the record his or her name, and role in the proceeding. If the person is representing another person, the person being represented shall also be identified.

(b) Testimony shall be offered in the following order:

(1) The party or parties bearing the burden of proof and such witnesses as the party may call; and

(2) The party or parties opposing the party who bears the overall burden of proof and such witnesses as the party may call.

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Jus 812.04 Evidence.

(a) Receipt of evidence shall be governed by the provisions of RSA 541-A:33.

(b) All documents, materials and objects offered as exhibits shall be admitted into evidence unless excluded by the presiding officer as irrelevant, immaterial, unduly repetitious or legally privileged.

(c) All objections to the admissibility of evidence shall be stated as early as possible in the hearing, but not later than the time when the evidence is offered.

(d) Transcripts of testimony and documents or other materials, admitted into evidence shall be public records unless the presiding officer determines that all or part of a transcript or document is exempt from disclosure under RSA 91-A:5 or applicable case law.

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Jus 812.05 Proposed Findings of Fact and Conclusions of Law.

(a) Any party may submit proposed findings of fact and conclusions of law to the presiding officer prior to or at the hearing.

(b) Upon request of any party, or if the presiding officer determines that proposed findings of fact and conclusions of law would serve to clarify the issues presented at the hearing, the presiding officer shall specify a date after the hearing for the submission of proposed findings of fact and conclusions of law

(c) In any case where proposed findings of fact and conclusions of law are submitted, the decision shall include rulings on the proposals.

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Jus 812.06 Closing the Record.

(a) After the conclusion of the hearing, the record shall be closed and no other evidence shall be received into the record, except as allowed by paragraphs (b) of this section and Jus 812.07.

(b) Before the conclusion of the hearing, a party may request that the record be left open to allow the filing of specified evidence not available at the hearing. If the other parties to the hearing have no objection or if the presiding officer determines that such evidence is necessary to a full consideration of the issues raised at the hearing, the presiding officer shall keep the record open for the period of time necessary for the party to file the evidence.

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Jus 812.07 Reopening the Record. At any time prior to the issuance of the decision on the merits, the presiding officer, on the presiding officer’s own initiative or on the motion of any party, shall reopen the record to receive relevant, material and non-duplicative testimony, evidence or arguments not previously received, if the presiding officer determines that such testimony, evidence or arguments are necessary to a full and fair consideration of the issues to be decided.

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Jus 812.08 Decisions.

(a) An agency official shall not participate in making a decision unless he or she personally heard the testimony in the case, unless the matter’s disposition does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating the testimony.

(b) If a presiding officer has been delegated the authority to conduct a hearing in the absence of a majority of the officials of the agency who are to render a final decision, the presiding officer shall submit to the agency a written proposal for decision, which shall contain a statement of the reasons for the decision and findings of fact and rulings of law necessary to the proposed decision.

(c) If a proposal for decision in a matter not personally heard by an agency official is adverse to a party to the proceeding other than the agency itself, the agency shall serve a copy of the proposal for decision on each party to the proceeding and provide an opportunity to file exceptions and present briefs and oral arguments to the agency.

(d) A proposal for decision shall become a final decision upon its approval by the agency.

(e) An agency shall keep a decision on file in its records for at least 5 years following the date of the final decision or the date of the decision on any appeal, unless the director of the division of records management and archives of the department of state sets a different retention period pursuant to rules adopted under RSA 5:40.

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PART Jus 813 MOTION FOR REHEARING

Jus 813.01 Purpose. The rules in this part are intended to supplement any statutory provisions, including RSA 541, that require or allow a person to request a rehearing of a decision of an agency prior to appealing the decision.

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Jus 813.02 Applicability. The rules in this part shall apply whenever any person has a right under applicable law to request a rehearing of a decision prior to filing an appeal of the decision with the court having appellate jurisdiction.

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Jus 813.03 Filing and Content of Motion.

(a) A motion for rehearing shall be filed within 30 days of the date of an agency decision or order.

(b) A motion for rehearing shall:

(1) Identify each error of fact, error of reasoning, or error of law which the moving party wishes to have reconsidered;

(2) Describe how each error causes the agency's decision to be unlawful, unjust or unreasonable, or illegal in respect to jurisdiction, authority or observance of the law, an abuse of discretion or arbitrary unreasonable or capricious;

(3) State concisely the factual findings, reasoning or legal conclusion proposed by the moving party; and

(4) Include any argument or memorandum of law the moving party wishes to file.

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Jus 813.04 Standard for Granting Motion for Rehearing.

(a) A motion for rehearing in a case subject to appeal under RSA 541 shall be granted if it demonstrates that the agency's decision is unlawful, unjust or unreasonable.

(b) A motion for rehearing in a case subject to appeal by petition for writ of certiorari shall be granted if it demonstrates that the agency's decision is illegal in respect to jurisdiction, authority or observance of law, an abuse of discretion or arbitrary, unreasonable or capricious.

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Jus 813.05 Decision on Motion for Rehearing. An agency shall grant or deny a motion for rehearing, or suspend the order or decision pending further consideration within 10 days of the filing of the motion for rehearing.

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Appendix

Rule	Specific State or Federal Statutes or Regulations which the Rule Implements
Jus 801.01	RSA 541-A:30-a, II
Jus 801.02	RSA 541-A:30-a, II, V
Jus 802	RSA 541-A:1; 541-A:30-a, II
Jus 803.01	RSA 541-A:29-39
Jus 803.02	RSA 541-A:30-a, III, (k); 541-A:36
Jus 803.03	RSA 541-A:22, IV; 541-A:30-a, III (j)
Jus 804.01	RSA 541-A:29-35; 541-A:30-a, III (a)
Jus 804.02	RSA 541-A:29-35; 541-A:30-a, III (a)
Jus 804.03	RSA 541-A:29-35; 541-A:30-a, III (a)
Jus 805.01	RSA 541-A:29-35; 541-A:30-a, III (f)
Jus 806.01	RSA 541-A:29-35; 541-A:30-a, III (a)
Jus 807.01	RSA 541-A:31, I-II
Jus 807.02	RSA 541-A:29-39; 541-A:31, I-II
Jus 807.03	RSA 541-A:31, III
Jus 807.04	RSA 311:1; 311:7; 541-A:30-a, III (b)
Jus 807.05	RSA 541-A:31, V; 541-A:38
Jus 808.01	RSA 541-A:30-a, III (g)
Jus 808.02	RSA 541-A:30-a, III (g)
Jus 809.01	RSA 541-A:32; 541-A:30-a, III (g)
Jus 810.01	RSA 541-A:30-a, III (h)
Jus 810.02	RSA 541-A:29-39
Jus 811.01	RSA 541-A:30-a, III (c)
Jus 811.02	RSA 541-A:30-a, III (c)
Jus 811.03	RSA 541-A:30-a, III (c)
Jus 812.01	RSA 541-A:31, VI
Jus 812.02	RSA 541-A:30-a, III (d), (e)
Jus 812.03	RSA 541-A:33
Jus 812.04	RSA 541-A:33
Jus 812.05	RSA 541-A:31, VI (c); 541-A:35
Jus 812.06	RSA 541-A:31; 541-A:33
Jus 812.07	RSA 541-A:31; 541-A:33; 541-A:30-a, III (i)
Jus 812.08	RSA 541-A:34-35; 541-A:30-a, (e)
Jus 813.01	Ch. 541
Jus 813.02	Ch. 541
Jus 813.03	RSA 541:3
Jus 813.04	RSA 541:4
Jus 813.05	RSA 541:5