Links to Agency Websites
Model Forms (e.g. Subpoenas; Notice of Appearance; Notice of Action in Judicial Appeals)
Web Based Electronic Records
A Brief Overview of the OAH Hearing Process for Partiesby Brian Brendan Tully, Administrative Law Judge
Vol. 15 April 2000
Director’s note: All parties receive a brochure which addresses frequently asked questions about the OAH and hearings as well as a copy of our procedural rules when they receive their Notice of Hearing. In addition, our website (www.azoah.com) includes the Uniform Administrative Appeals Procedures of A.R.S. §41-1092 and links to the Arizona Administrative Code The following article now provides a handy overview of the process with some helpful hints and practice pointers. It will be added to the OAH website along with all previously published articles of the OAH Newsletter. A “Practice Pointers” section will become a regular feature in the Newsletter.
The Office of Administrative Hearings (OAH) came into existence on January 1, 1996. It was created to provide a neutral forum for the hearing of contested matters involving state regulation. The OAH strives to provide maximum accessibility to the hearing process by streamlined procedures and a comfortable setting. This article is written as a continuing effort to likewise provide education to the public. This article will touch on the issues of evidence and the hearing process.
EVIDENCE AT THE HEARING
The formal Rules of Evidence used in the courts do not apply in administrative hearings. As a result, the Administrative Law Judge has more discretion to admit evidence into the record.
Evidence is anything used to prove or disprove a fact. There are three types of evidence: testimonial evidence, documentary evidence and demonstrative evidence.
Testimonial evidence is what someone says under oath or affirmation at the hearing.
Documentary evidence encompasses any document, including photographs, blueprints, checks, contracts, and the like. Practice hint: Parties are encouraged to substitute color copies of photos instead of the originals. Four to six photos can be photocopied at one on a single sheet and a copy made for the other party. Checks and other valuable documents should be copied rather than the original offered into evidence. It is helpful if relevant sections of blueprints are photocopied where possible, rather than offering the entire blueprint. Oversize documents are discouraged in favor of standard 8 1/2” x 11”.
Demonstrative evidence is physical evidence that can be seen or touched. This includes tile, pipes and the like. Practice hint: Parties are encouraged to convert such items to a documentary form, such as photos that can then be admitted in evidence. Nondocumentary items may be considered by the Administrative Law Judge even if the item itself is not admitted into the record because of its size or it is otherwise inappropriate. Oversize charts should be reduced to 8 1/2” x 11” if a party wishes to move a chart into the record.
Admissible evidence is evidence that the Administrative Law Judge admits into evidence as part of the official record. Admissible evidence does not mean that the evidence is true. It means that there are no valid objections for its consideration by the Administrative Law Judge.
Credibility determines the weight given to evidence by the Administrative Law Judge.
Relevant evidence is evidence that reasonably tends to make the existence of a fact more probable or less probable than it would be without the evidence.
Hearsay is a statement (which can be offered by the testimony of another, or through a document) made outside of the hearing that is offered to prove what was stated. An example is a party trying to prove that a contractor agreed to repair the roof by testifying that Mr. Jones (not present) said the “contractor told him that he would repair the roof.” Hearsay is admissible in administrative hearings. However, the Administrative Law Judge will consider the weight (credibility), if any, to give to such hearsay evidence, especially since the opposing party is not given an opportunity to cross-examine the absent person. Practice Hint: It is always better to have the person making the statement testify.
At the commencement of the hearing a party may request that the ”Rule of Sequestration” (Rule) be invoked. That rule provides for the exclusion of witnesses from the hearing room until the witness is called to testify. If a party feels that they need their expert to be excluded from the Rule to aid in their case, a request to allow the expert to remain should be made to the Administrative Law Judge. It is then up to the Administrative Law Judge to decide whether to invoke the Rule and whether to permit any experts necessary to assist a party to be permitted to remain in the hearing.
THE HEARING PROCESS On the day of the hearing parties, counsel and witnesses sign-in at the Office of Administrative Hearings’ reception area. They are then escorted by staff to the appropriate hearing room.
Elements of the Hearing:
1. The Administrative Law Judge will call the case. Parties and counsel are identified. The Administrative Law Judge will administer oaths and affirmations to witnesses.
2. It is appropriate to refer to the Administrative Law Judge by that title or any of the following: Judge, ALJ, Your Honor, or Mr. X or Ms. X depending on the gender of the Administrative Law Judge. The term “Hearing Officer” is an inaccurate reference.
3. Before evidence is taken, parties may make opening statements. This is the opportunity for the parties to outline their respective positions. Opening statements are not evidentiary. It is not the time to present your entire case. You should prepare a short overview of what your case is about, what you will prove and how. For example: “I will show that Contractor X’s work fell below minimum workmanship standards by showing you pictures taken one week ago that show that the wall he built is bowed.”
4. After the conclusion or waiver of opening statements, the party with the burden of proof generally proceeds by presenting evidence. The person asserting a right generally has the burden of proof. The party may present testimonial and documentary evidence subject to cross-examination by the opposing party or counsel. Cross-examination is an opportunity for the opposing party or counsel to question the witness. It is not an appropriate time for the opposing party or counsel to respond or debate the witness’ testimony. Note: Sometimes the ALJ will change the normal order of presentation to make the hearing go more smoothly.
5. Upon completion of that presentation, the opposing party may, but is not required to, present evidence in support of that party’s position. Any witness presented by that party is subject to cross-examination by the opposing party.
6. Upon completion of that presentation, the party with the burden of proof may request an opportunity to present rebuttal evidence. However, such evidence should not be redundant, repetitive or cumulative to the party’s prior evidence.
7. After all evidence has been presented, the parties are then given an opportunity to present closing statements. Closing statements are not evidentiary. They are statements made summarizing each party’s respective position. Practice Note: The opening statement and closing summation should be the same, except now you point out what you have proven and how, and what result you want. The Administrative Law Judge will examine all of the evidence. Summation forces you to think about whether you forgot to make a point in testimony.
8. After completion of the Closing Statements, the hearing is then concluded.
9. When the Office of Administrative Hearings was created, the Legislature mandated that the OAH seek input from parties and counsel who appear before it. In fulfilling that mandate, the Director of the Office of Administrative Hearings created an evaluation form which is offered to the parties and counsel by the Administrative Law Judge at the conclusion of the hearing. The Administrative Law Judge does not see the completed evaluation forms and the forms have no impact on the case just completed.
10. The Administrative Law Judge then prepares a written Recommended Decision for submission to the agency, board or commission where the case originated.
1. Familiarize yourself with the state statute(s) and Arizona Administrative Code provisions applicable to your case. You should especially become familiar with the Office of Administrative Hearings’ rules. You should have received a copy with your brochure when you received your Notice of Hearing. A copy is available also on our internet site: www.azoah.com
2. If you have not previously appeared before the Office of Administrative Hearings, you should take the time to observe a hearing prior to your hearing. Ideally you should view a hearing before your assigned Administrative Law Judge.
3. A visit to the Office of Administrative Hearings’ website provides valuable information. The website address is www.azoah.com. Forms are available for downloading. You can also learn about your assigned Administrative Law Judge by reading his or her biography. If you do not have internet access, the Phoenix office has a kiosk located outside the reception area from which you can access the website.
4. The Administrative Law Judge cannot have ex parte communications with any of the parties. Avoid the potential appearance of impropriety by not talking to the Administrative Law Judge either before or after the hearing unless both parties are present.
5. Make sure that whenever you send something to the Administrative Law Judge (motions, etc.) you send a copy to the other party.
6. Make sure that you have sufficient copies of your exhibits for the Administrative Law Judge and the other party. The Office of Administrative Hearings retains custody of all admitted exhibits until a case becomes final, at which point the parties may request the release of their exhibits.
7. Organize your case. Try creating notecards for each point you need to prove and then sort by witness. You will need multiple cards if you plan to prove the same point several ways or through the testimony of several people. You will feel better organized and more confident.