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MOTION PRACTICE AT THE OFFICE OF ADMINISTRATIVE HEARINGS
By Gary B. Strickland
Vol. 23, April 2002
A motion is an application to receive a ruling or order directing that something be done favorable to the applicant. Parties appearing before the Office of Administrative Hearings have available to them several motions that they may utilize in an effort to obtain a favorable outcome. The following discussion identifies the more typical motions utilized in administrative adjudication. The use of such motions is limited to: (1) the timing requirements of the Office of Administrative Hearings procedural rules set forth in the Arizona Administrative Code, Title 2, Chapter 19 (A.A.C. R2-19-101 et seq.), and (2) the substantive requirements of administrative law generally.
Motions filed concerning threshold (meaning, before the Administrative Law Judge has convened the hearing on the record) matters must be submitted to the Office of Administrative Hearings in writing at least fifteen (15) days prior to the date upon which the hearing is scheduled to begin, or, with “leave” supported by a showing of good cause (meaning, with the Administrative Law Judge’s permission) to file at another time. A.A.C. R2-19-106(C). If the opposing party chooses to object to the motion, the responsive argument must be filed with the Office within five (5) days of service, or as directed by the Administrative Law Judge. A.A.C. R2-19-106(D) An otherwise appropriate oral motion will be considered by the Administrative Law Judge, however, if made during a prehearing conference or during the hearing itself. A.A.C. R2-19-106(B) and (C). The Administrative Law Judge will typically issue a written ruling on the motion, without delay, unless the motion is made orally and the Judge determines to render a ruling from the bench. In either case, the Administrative Law Judge will state sufficient grounds for the denial of or granting of the motion to advise the parties of the basis for the ruling.
Any motion that is presented to the Administrative Law Judge, whether written or oral, is required to be argued by the proponent (the one making the motion) with specific knowledge of the facts and the law [where necessary] upon which the motion is based. In other words, the proponent should never blindly “throw up” an application to the Judge hoping only that “something may stick.” Integrity and good faith are presumed in the submission of all motions.
While a “lay” person (i.e., a non-attorney) may represent herself or an entity (where permitted by Rule 31 of the Arizona Rules of the Supreme Court) before the Office of Administrative Hearings in certain contexts, there is one context where it is absolutely necessary that a licensed Arizona attorney participate in the process. That occurs when an attorney who is licensed and in good standing in another jurisdiction, but not in Arizona, desires to represent a party. Before the out-of-state attorney is permitted to represent the party, he or she must be admitted pro hac vice (“for this case only”) to practice before this Arizona tribunal. The Office of Administrative Hearings’ web site, www.azoah.com, provides the proper form and style for the submission of a motion pro hac vice.
Another threshold motion concerns the date upon which the matter will be heard. Sometimes, a party will seek to have the hearing continued to a later date because some problem is anticipated. More infrequently, a party will seek to have the date upon which the hearing is scheduled be advanced to an earlier date, the hearing accelerated, because it is thought that a need has arisen to have a ruling on the issue(s) presented as early as possible. In either case, A.R.S. § 41-1092.05(C)and A.A.C. R2-19-106(B) and (C) require that the party who requests the change in the date for hearing demonstrate good cause to have the matter moved to an earlier or later day on the calendar. The motion should be filed only in support of a legitimate purpose. Illegitimate reasons for the filing of such a motion would include that of delay or merely to frustrate the opposing party. It should be noted that, generally, there is a presumption that the calendar should not be disturbed. There are many other citizens and public entities whose cases are awaiting a time slot within which to air their grievances. Therefore, in consideration of the motion, in addition to observance of the clearly stated requirements of statute and rule, the Administrative Law Judge will weigh the unfairness to the other party of delay or expedition, should the request be granted, against the particulars of the asserted hardship that a denial of postponement or advancement would create. In preparation of the motion, a party should be very careful (1) to familiarize itself with the rule, (2) ensure that it has good cause for the request before it asks for a calendar reassignment, and (3) not to expect that the request will be granted as of right. This last point holds fast even if the opposing party does not object to the motion.
Still further as a threshold matter, a party may move to have a change of venue, i.e., request that the hearing be conducted at what the moving party considers a more convenient setting. However, in cases other than those involving Registrar of Contractor or Child Protective Services matters, venue is generally strictly confined to either Phoenix or Tucson. It may occasionally be appropriate to move a hearing between those two locations due to the number of witnesses situated in an area whereby Tucson would be closer for travel as opposed to Phoenix, or vice versa. OAH's procedural rulesdo not provide for the filing of a venue motion. However, such a motion will be nonetheless considered, balancing private interests with administrative efficiency.
It may also be true that a party might want to have the Administrative Law Judge render a ruling on an offer of evidence that it intends to make at the hearing or to limit or prevent the production of prejudicial and irrelevant matter that the other side may plan on raising. The in limine motion should be used with an intent to shorten the hearing and to simplify the issues that will be addressed.
Occasionally, a party will assert a motion for a directed verdict in an administrative case. This is inappropriate. There is no place for a directed verdict at an administrative hearing. The more correct motion is one to dismiss. Here, the moving party asserts that the party who has the overall burden of persuasion has failed to set forth evidence on every element of the case necessary to sustain a ruling in that party’s favor. The opposing party feels it unnecessary to put on a rebuttal case because, legally speaking, there is nothing to rebut or to defend against. However, even should the Administrative Law Judge be inclined to agree with the party that has submitted the motion, it is improbable that he or she will grant a dismissal motion (or, more correctly in most cases, recommend that the Agency with jurisdiction grant the motion) so as to make a complete record for review by the Agency Director or Board who will render the Final Order. In effect, while denying the motion, the Administrative Law Judge may nevertheless ultimately recommend that the Agency head dismiss the matter.
In conclusion, a party has the right to petition the Administrative Law Judge by motion to obtain a ruling on the request and to be provided a brief statement of the reasons for the granting or denial of a motion recognized appropriate in the administrative forum. The overriding considerations of the Administrative Law Judge in rendering a ruling are those of fairness to the parties and expedition and efficiency in the process. If a filing party has observed the rules and has set forth a good faith, arguably sound legal position, the party will likely receive a ruling that is satisfactory to all under the circumstances of the case.