The

Jane Dee Hull
Governor

OAH

Cliff J. Vanell
Director

Vol.
21
October 2001
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings
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.

Pre-Hearing and
Post-Hearing Memoranda
by Dorinda Lang, Administrative Law Judge

DISCOVERY-THE KEY TO UNLOCKING
THE “MYSTERY” BEHIND
AN ADMINISTRATIVE HEARING
By Sondra J. Vanella, Administrative Law Judge
Discovery is a pre-hearing device that can be used by each
party to obtain facts and information about the case from the
opposing party, in order to prepare for an administrative hearing. There are no formal rules governing the discovery process
in an administrative hearing. However, discovery should be
calculated to lead to reliable and probative information. In some
cases, parties may have another related matter pending in
court. The administrative forum should not be viewed as an
opportunity to obtain information solely for use in another court
proceeding. Discovery must be relevant to the issues that will
be addressed at the hearing.
Generally, discovery is limited in administrative proceedings.
However, there are several methods accessible to both represented and unrepresented parties, which can facilitate the
gathering of relevant information. Perhaps the easiest and most
often overlooked tool is a review of the case file. Parties are
encouraged to examine the case file forwarded to the Office of
Administrative Hearings by the referring agency, prior

“Discovery”
continued page 2
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

Written memoranda are not always requested or necessary in hearings before the Office of Administrative
Hearings (“OAH”). If the Administrative Law Judge
requests one, however, he or she expects the parties to
submit them and in a timely manner (the time for submission being set by the Administrative Law Judge).
Arizona Administrative Code R2-19-116(G) specifically
allows the Administrative Law Judge to “permit or require”
written memoranda to be submitted after the close of a
hearing. The Administrative Law Judge may also permit
or require the parties to submit one before the hearing,
particularly as a result of a pre-hearing conference under
A.A.C. R2-19-112.
If a party wishes to submit a memorandum for consideration by the Administrative Law Judge without having
been requested to do so, the best time to submit it is at
least a couple of days prior to the hearing. The OAH staff
files documents received in the course of business
pursuant to A.A.C. R2-19-108. This rule merely allows
the OAH staff to file documents in the appropriate case
file. It states that “documents” that can be filed may
include briefs, which are essentially the same thing as
memoranda. The rule also requires that a copy be served
on all parties.

“Memoranda”
continued page 2
began in 1945 with California. The current states having adopted the model, with
year of inception are: Arizona (1996), California (1961), Colorado (1976), Florida
(1974), Georgia (1995), Illinois (1997), Iowa (1986), Kansas (1998), Louisiana (1996),
Maryland (1990), Massachusetts (1974), Michigan (1996), Minnesota (1976), Missouri (1965), New Jersey (1979), North Carolina (1986), North Dakota (1991), Oregon
(1999), South Carolina (1994), South Dakota (1994), Tennessee (1975), Texas
(1991), Washington (1981), Wisconsin (1978) and Wyoming (1987).

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.

1st Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in 97.67%
of all recommended decisions acted upon by the agencies.* ALJ
decisions, including recommended orders, were accepted without
modification in 94.62% of all recommended decisions acted upon by
the agencies. 70.60% of all agency modification was of the order
only (i.e. penalty assessed).
Appeals to Superior Court:
The appeal rate was 1.58% defined as appeals taken (16) over
hearings concluded (1010**).
Rehearings:
The rehearing rate was .40%, defined as rehearings scheduled (4)
over hearings concluded (1010**).
Completion Rate:
The completion rate was 62.04%, defined as cases completed
(1759) over new cases filed (1010).
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
1st quarter) was 60.35 days. The frequency of continuance, defined
as the number of continuances granted (1370) over the total number
of cases first scheduled (2821), expressed as a percent, was
48.56%. The ratio of first settings (2863) to continued settings on
the calendar (239) was 1 to 0.08.
Dispositions:
Hearings conducted: 57.4%; vacated prior to hearing: 40.3%;
hearings withdrawn by agency: 2.3%.
Contrary Recommendations and Agency Response: 23.99% of
recommendations were contrary to the original agency action where
the agency took a position. Agency acceptance of contrary
recommendations was 89%.

notifying the opposition of
such request. Subpoenas
for the production of documents may be issued by the
ALJ if the party seeking
documents demonstrates
that they are relevant to the
issues in dispute. The ALJ
may require a brief statement
supporting the necessity of a
particular witness to appear,
or the relevancy of the
documents being sought.
Documents may be subpoenaed from individuals,
businesses, and governmental agencies.
The deposition is a limited
discovery technique that can
be exercised when a witness
is unavailable to attend the
hearing. Should a witness
be unavailable to testify at
the hearing, either party may
petition the assigned ALJ to
permit a deposition to be
taken to be used as evidence
at the hearing. This is
because the person being
deposed is under oath and
subject to cross examination
during the deposition.

*1.05% of ALJ recommended decisions were certified as final by the OAH due
to agency inaction.
** Cases which were vacated are not included

“Discovery”
continued from page 1
to the hearing. This enables the parties
to become familiar with the documents
that the agency (assuming the agency is
a party) or other party may use during the
hearing, and affords the opportunity to
gather whatever documentation the party
feels is necessary in order to present the
case to theAdministrative Law Judge
(“ALJ”). Parties may obtain copies of the
case file at their own expense.
The most common form of discovery is
the issuance of subpoenas to compel the
attendance of witnesses and the production of documents. This may be requested by either or both parties without

The pre-hearing conference
is not a discovery tool per se,
but parties seeking assistance with discovery, or who
seek clarification of issues,
may request a pre-hearing conference.
On occasion, an ALJ may order a prehearing conference without a request
from either party. The pre-hearing
conference may be used to clarify or limit
procedural, legal, and factual issues,
thereby alleviating a degree of uncertainty about the proceeding. The ALJ
may order the parties to exchange
documents and/or lists of witnesses and
exhibits intended to be used during the
hearing. It also affords the parties an
opportunity to discuss settlement.
Discovery, if utilized appropriately,
promotes a meaningful and efficient
hearing, with both parties prepared to
present and address relevant evidence
and legal arguments.

page 2

“Memoranda”
continued from page 1
Once the hearing is over, however, the
only documents accepted by the
Administrative Law Judge are those
already requested prior to the end of the
hearing and for which the record was
specifically held open. Memoranda
submitted after the close of the hearing,
if not previously requested by the
Administrative Law Judge, will be
returned in the mail with a letter stating
that the record in the matter has been
closed.
A party or representative appearing at
an OAH hearing may be faced with
writing a pre-hearing or post-hearing
memorandum at the request of the
Administrative Law Judge when they
had no intention of doing anything so
technical for the case. Those without
legal experience may feel a bit overwhelmed by the prospect and be
concerned about what to submit.
But a memorandum is nothing more
than a very short position paper. A brief
statement of the case and why the party
believes it should prevail, clearly stated
and amenable to reason, should suffice.
If the party is relying on a particular
statute or rule, a proper citation is
appropriate. If referencing an agency
policy or other document, attach a copy
of it to the memorandum.
Organization of points into separate
headings, formulation of clear thoughts
and use of appropriate sentence
structure may make the party’s case
more clear and memorable to the
Administrative Law Judge, possibly
increasing the chances of receiving a
favorable recommendation. Thus, the
task of writing a memorandum is usually
viewed as an opportunity rather than a
chore.
If, for any of the above reasons, you are
submitting a memorandum for a hearing
at the Office of Administrative Hearings,
keeping the above points in mind will
help you make your case.

Agency Response to Recommended Decisions July 1 - September 30, 2001
1600
1400

ALJ decision certified as final upon agency
Agency rejects the recom mended decision
inaction
1.05%
1%

1336

Agency amends recommended order only
3.02%

1200

cases

1000

Agency amends findings of facts/conclusions
of law only
1.26%

800

Agency accepts w ithout modification
93.69%

600
400
200
18

43

15

14

Agency amends
recommended order only

Agency rejects the
recommended decision

ALJ Decision Certif ied as
Final Upon Agency
Inaction

0
Agency accepts w ithout Agency amends findings
modification
of facts/conclusions of
law only

Arizona Hosts Central Panel Directors
Meeting

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, July 1 - September 30, 2001
60
50

43.54

40
Days

The annual conference of Central Panel Directors will be
held at the Hyatt Regency Hotel in downtown Phoenix from
December 5-8, 2001. Cliff J. Vanell, the Director of the
Office of Administrative Hearings for the State of Arizona
(“OAH”), will host several functions during the conference.
Representatives are expected from Alabama, Arizona,
California, Chicago, Colorado, Florida, Georgia, Iowa,
Louisiana, Maryland, Maine, Massachusetts, Michigan,
Minnesota, Missouri, New Jersey, New York City, North
Carolina, North Dakota, Oregon, South Carolina, Tennessee, Texas, Washington, Washington DC, Wisconsin, and
Wyoming. The agenda will include refining approaches to
case management and technology, attracting and retaining
administrative law judges, increasing public accessibility to
the administrative process, and procedural rules.

56.48

30
16.5

20
8.24

10
0.84

10.48

10.58

AAA
CC

1.25

0
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing ALJ Decision to Agency
to ALJ Decision
Action

*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.

2835 Cases Filed July 1, 2001 - September 30, 2001
1st Q

Accountancy
1
Acupuncture Board
0
ADA
0
Administration
4
Admin. Parking
50
Agriculture
2
Ag. Emply. Rel. Bd.
0
AHCCCS
2011
Alternative Fuel
5
Appraisal
0
AZ Commission on the Arts 0
Attorney General
3
Arizona Works
0
Banking
10
Behavioral Health Ex.
7
Building/Fire Safety
64
Charter Schools
0
Chiropractic
1
Clean Elections
0
Community Colleges
0

FY 2002

1
0
0
4
50
2
0
2011
5
0
0
3
0
10
7
64
0
1
0
0

1st Q FY 2002

1st Q FY 2002

Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Osteopathic
Parks

page 3

8
4
0
51
2
14
0
0
46
22
3
17
0
1
2
0
11
0
0
0

8
4
0
51
2
14
0
0
46
22
3
17
0
1
2
0
11
0
0
0

Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures

2
0
0
0
0
3
2
0
0
4
0
409
30
12
0
0
3
0
5
26

2
0
0
0
0
3
2
0
0
4
0
409
30
12
0
0
3
0
5
26

Evaluations of OAH Services
A ll R e s p o n s e s 1 s t Q u a rte r

U n rep resen ted R espo n ses 1st Qu arter
700

400
350
300
250
200
150
100
50
0

600

Exc ellent

500

E xc ellent

Good

400

G ood

Average

300

Average

Poor

200

P oor

100

ue
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6
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1
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2
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3
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5
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0

Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions

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.

8. Questions responded to promptly and completely
9. Treated courteously

Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007

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The OAH is an equal opportunity employer.