The Janet Napolitano Governor OAH Cliff J. Vanell Director Vol. 39 May 2006 www.azoah.com Official Newsletter of the Arizona Office of Administrative Hearings Putting Your Best Case Forward Daniel G. Martin, Administrative Law Judge In virtually every proceeding before the Office of Administrative Hearings, one of the parties will have the burden of proof. Generally speaking, it is the party asserting a claim, right, or entitlement that has the burden of proof. See Arizona Administrative Code (“A.A.C.”) R2-19-119(B)(1). In addition, the party asserting an affirmative defense to a claim (such as the application of a statute of limitations) has the burden to establish the elements of that defense. See A.A.C. R2-19-119(B)(2). The standard of proof in almost all administrative proceedings is preponderance of the evidence. See A.A.C. R2-19-119(A). A “preponderance of the evidence” is “evidence of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY (6th ed. 1990). In order to prevail, the party with the burden Director’s note: OAH is committed to fairness and making hearings accessible to all. This article is part of a series of informational articles to educate the public and parties who appear before us about the hearing process and how to better present their cases. The following article may be found at OAH’s website at www.azoah.com along with all previous articles published in the OAH Newsletter. The Office of Administrative Hearings (OAH) began operations on January 1, 1996. Administrative hearings previously provided by regulatory agencies (except those specifically exempted) are now transferred to the OAH for independent proceedings. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.” The process of unifying the administrative hearings function in OAH-style agencies began in 1945 with California. The current American states and cities, and Canadian of proof must not only present sufficient evidence to convince the Administrative Law Judge that the party’s position is correct (also known as the burden of producing evidence or the burden of going forward); the party’s evidence also must be sufficient to convince the Administrative Law Judge that the party is entitled to the relief that he or she is seeking (this is known as the burden of persuasion). Given the importance of the burden of proof, one of the first issues that a party to an administrative proceeding must address is the type of evidence that he or she will present in order to establish his or her claim (or defense). The most common types of evidence are witness testimony and documentary evidence; however, there are many other forms of evidence, such as physical objects, photographs, audio and video recordings, and summary evidence (such as graphs and charts). In every proceeding, it is crucial to select the evidence that will best convey the facts of the case to the Administrative Law Judge assigned to hear the case. “Best Case” (continued on page 2) provinces, having adopted the model, with year of inception are: Alabama (1998); Alaska (2004); Arizona (1996); California (1961); City of Chicago (1997); Colorado (1976); Florida (1974); Georgia (1995); Iowa (1986); Kansas (1998); Louisiana (1996); Maine (1992); Maryland (1990); Massachusetts (1974); Michigan (1996); Minnesota (1976); Missouri (1965); New Jersey (1979); New York City (1979); North Carolina (1986); North Dakota (1991); Oregon (1999); South Carolina (1994); South Dakota (1994); Tennessee (1975); Texas (1991); Washington D.C. (1999); Washington (1981); Wisconsin (1978); Wyoming (1987); and Province of Quebec ( ). Mission Statement: We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing the contested matters of our fellow citizens arising out of state regulation. 3rd Quarter Statistics At A Glance Acceptance Rate: ALJ findings of fact and conclusions of law were accepted in 91.25% of all Administrative Law Judge Decisions acted upon by the agencies.* Administrative Law Judge Decisions, including orders, were accepted without modification in 85.26% of all Administrative Law Judge Decisions acted upon by the agencies. 50% of all agency modification was of the order only (i.e. penalty assessed). Appeals to Superior Court: There were 32 appeals filed in Superior Court. Rehearings: The rehearing rate was 1.87%, defined as rehearings scheduled (14) over hearings concluded (747).** Completion Rate: The completion rate was 99.95%, defined as cases completed (1999) over new cases filed (2000). Continuance: The average length of a first time continuance based on a sample of cases (first hearing setting and first continuance both occurred in the 3rd quarter) was 45.98 days. The frequency of continuance, defined as the number of continuances granted (187) over the total number of cases first scheduled (1914), expressed as a percent, was 9.77%. The ratio of first settings (1828) to continued settings on the calendar (240) was 1 to 0.13 When considering the type of evidence to present at hearing, a party must ask two basic questions. The first question is whether the evidence is relevant; that is, does it relate to one or more of the issues presented for hearing. The second question is whether the evidence is probative; that is, does it tend to prove a fact that is at issue in the case. If the answer to both of these questions is yes, then the evidence will most likely be admitted at hearing. However, the determination that the evidence is admissible does not end the inquiry; of perhaps equal importance is the question of how much weight the Administrative Law Judge will assign to that evidence. Dispositions: Hearings conducted: 46.2%; hearings vacated prior to hearing: 51%; hearings withdrawn by the agency: 2.8%. To illustrate this point, let us consider three scenarios Contrary Recommendations and Agency Response: arising out of the following 20.35% of Administrative Law Judge Decisions were contrary to the original agency action where the agency hypothetical licensing case: took a position. Agency acceptance of contrary AdminisJohn Smith applies for a real trative Law Judge Decisions was 89.47%. estate salesperson’s license, * 2.83% of Administrative Law Judge Decisions were certified as final by the but his application is denied OAH due to agency inaction or were rendered moot by settlement. ** Cases which were vacated or which settled on the day of hearing are not after the Department of Real included. Estate discovers that he has several criminal convictions. Mr. Smith appeals the “Best Case” Department’s decision, and his (continued from page 1) case is referred for hearing to the Office of Administrative Hearings. Previous articles in this newsletter, Mr. Smith has the burden of proof, all of which can be found on the and wants to present several Office of Administrative Hearings witnesses to testify to his honesty website, www.azoah.com, as well and good moral character. as the video, “Preparing for Hearing”, which also can be found on In the first scenario, Mr. Smith’s the website, explain in detail the witnesses do not testify directly. manner in which a party should Instead, each of them writes a present his or her case. The purpose of this article is to focus on letter of reference attesting to Mr. Smith’s honesty and good characthe type and quality of the evidence ter. The Administrative Law Judge presented, and explain how the determines that the letters are both selection of that evidence can, in relevant and probative, and admits many instances, have a direct them into evidence. Although Mr. impact on the outcome of a case. page 2 Smith has at this point presented evidence of his good character, that evidence is unlikely to be given much weight by the Administrative Law Judge because Mr. Smith’s witnesses were not subject to examination regarding the basis for their opinions, and the Administrative Law Judge was unable to observe the witnesses and make a determination as to their credibility. In short, Mr. Smith may have met his burden of producing evidence, but not his burden of persuasion. In the second scenario, Mr. Smith’s witnesses appear telephonically and testify directly to his honesty and good character. In this scenario, the quality of evidence is better than the previous scenario because, although the witnesses cannot be directly observed (thus making it more difficult for the Administrative Law Judge to assess their credibility), they are subject to examination regarding the basis for their opinions. In the third scenario, Mr. Smith’s witnesses appear in person and testify directly to his honesty and good character. In this scenario, the quality of evidence is better than each of the previous scenarios because the witnesses are subject to examination and can be directly observed by the Administrative Law Judge. If the issue of Mr. Smith’s honesty and good character turned out to be the deciding issue in his case, one can see that the quality of his evidence on that issue would be critical. Under the facts of the first scenario, Mr. Smith might very well not be successful in his appeal because the evidence regarding his “Best Case” (continued on page 4) Agency Response to Administrative Law Judge Decisions January 1, 2006 - March 31, 2006 Administrative Law Judge Decision moot 0.28% 700 Agency rejects the Administrative Law Judge Decision 2.70% 584 600 500 Administrative Law Judge Decision certified as final upon agency inaction 2.55% Agency amends order only 5.82% cases 400 300 200 Agency amends findings of fact/conclusions of law only 5.82% 100 41 41 19 Agency accepts without modification 82.84% 18 2 Administrative Law Judge Decision certified as final upon agency inaction Administrative Law Judge Decision moot Agency rejects the Administrative Law Judge Decision Agency amends order only Agency amends findings of fact/conclusions of law only Agency accepts without modification 0 Average Time Between Selected Events - Appealable Agency Actions v. Contested Cases*, January 1 - March 31, 2006 60.00 49.54 50.00 51.66 Days 40.00 30.00 20.00 20.00 13.67 11.31 9.76 10.00 1.53 AAA *Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing. A typical example would be the denial of a license. A party is entitled to a hearing before the OAH before the action becomes final. Contested Cases involve actions yet to be determined by an agency. An example would be proposed discipline on a professional license with the possibility of suspension or revocation. Parties are entitled to a hearing before the OAH prior to the agency acting. CC 3.68 0.00 Request for Hearing to Scheduling Scheduling to First Hearing Date Conclusion of Hearing to ALJ Decision ALJ Decision to Agency Action 2000 Cases Filed January 1, 2006 - March 31, 2006 3rdQ FY 2006 Accountancy Acupuncture Board Administration Admin. Parking Agriculture Ag. Emply. Rel. Bd. AHCCCS Alternative Fuel Appraisal Arizona Trial Courts Arizona Retirement Sys. Attorney General Arizona Works Athletic Board Behavioral Health Ex. Building and Fire Safety Charter Schools Chiropractic Clean Elections Commerce Community Colleges Cosmetology Criminal Justice Dental Economic Security 4 1 0 37 0 0 885 0 10 0 7 0 0 0 0 15 0 3 1 1 0 0 0 4 0 12 1 4 97 0 0 2498 0 24 0 26 0 0 0 1 68 1 3 5 1 0 1 2 33 0 3rd Q FY 2006 Economic Security-CPS Education (Board) Special Education Environ. Quality Financial Institutions Fingerprinting Funeral Gaming Health Services Insurance Land Liquor Lottery Maricopa Cty. Housing Massage Therapy Medical Board Medical Radiologic Naturopathic Nursing Nursing Care Admin. Occupation Therapy Optometry Osteopathic Parks Peace Ofc. Standards page 3 31 0 7 16 25 70 0 2 78 22 0 15 3 0 0 7 4 0 35 1 0 0 0 0 5 107 1 29 43 45 100 0 7 273 63 10 39 5 0 2 17 10 0 102 2 1 0 1 0 19 3rdQ FY 2006 Pharmacy Board 2 5 Physical Therapy 5 5 Podiatry 0 0 Psychologist Examiners 0 1 Public Safety - CW 0 5 Public Safety - Trans 3 11 Public Safety - Adult CC 0 0 Pvt. Post. Ed. 0 0 Racing 6 11 Radiation Regulatory 0 0 Registrar of Contractors 564 1433 Real Estate 51 220 Revenue 10 33 School - Deaf & Blind 0 0 Secretary of State 11 21 State Board of Education 0 0 Structural Pest Control 5 9 Technical Registration 0 0 Veterans Home 0 0 Veterinary Board 0 0 Water Qual. App. Bd. 0 0 Water Resources 0 2 Weights and Measures 54 147 Evaluations of OAH Services Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations are filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ involved. They are used by management to improve the OAH process and do not affect the decisions issued. All Responses 3rd Quarter Unrepresented Responses 3rd Quarter 250 350 300 250 200 150 100 50 0 Excellent 200 Good 150 Good Average 100 Average Poor Excellent Poor 50 9 Q ue s tio n 8 7 Q ue s tio n 6 Q ue s tio n 5 tio n ue s Q Q ue s tio n 4 3 Q ue s tio n 2 Q ue s tio n 1 tio n tio n ue s Q ue s Q Q ue st io n Q 1 ue st io n Q 2 ue st io n Q 3 ue st io n Q 4 ue st io n Q 5 ue st io n Q 6 ue st io n Q 7 ue st io n Q 8 ue st io n 9 0 Questions: 5. Effectiveness in dealing with the issues of the case 1. Attentiveness of ALJ 6. Sufficient space 2. Effectiveness in explaining the hearing process 7. Freedom from distractions 3. ALJ’s use of clear and neutral language 8. Questions responded to promptly and completely 4. Impartiality 9. Treated courteously character, while admissible, was not entitled to receive much weight. On the other hand, Mr. Smith might very well prevail under the facts of the third scenario, because he presented his evidence in such a way that it could be afforded significant weight. The principal that is illustrated by the above hypothetical has application to many types of evidence. In the case of documentary evidence, for example, the general rule is to bring the original document if there is any chance that the authenticity of the document might be subject to challenge. The original does not necessarily need to be made an exhibit, but it can be shown to the Administrative Law Judge and the opposing party in the event of a dispute. In the case of official documents (such as court records or police reports), certified copies bearing the stamp of the issuing court or agency are preferable to ordinary copies. In the case of photographs, originals are preferable to copies, and color copies are preferable to black and white copies. Effective preparation is critical to success in administrative proceedings, and one of the key components to effective preparation is ensuring that the evidence a party presents at hearing is not only relevant and probative, but also persuasive. As can be seen from the above examples, the type of evidence a party chooses to present may often have a direct impact on the outcome of the case. Therefore, careful thought should be given in advance of the hearing to precisely determine what evidence the party intends to offer, and whether that evidence puts the party’s best case forward. This publication is available in alternative formats. The OAH is an equal opportunity employer.