The

Jane Dee Hull
Governor

OAH

Cliff J. Vanell
Director

Vol.
23
April 2002
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

MOTION PRACTICE AT THE OFFICE OF
ADMINISTRATIVE HEARINGS
Gary B. Strickland, Administrative Law Judge
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.

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. R2-19106(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

“Motions”
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 agen-

cies began in 1945 with California. The current states or cities having adopted the
model, with year of inception are: Arizona (1996), California (1961), Colorado
(1976), Florida (1974), Georgia (1995), Chicago (1997), 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 (1981), Wisconsin (1978) and Wyoming

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.

Another threshold
motion concerns the date
upon which the matter will be
heard. Sometimes, a party
Acceptance Rate:
will seek to have the hearing
ALJ findings of fact and conclusions of law were accepted in 97.8%
continued to a later date
of all recommended decisions acted upon by the agencies.* ALJ
because some problem is
decisions, including recommended orders, were accepted without
modification in 95.17% of all recommended decisions acted upon by
anticipated. More infrethe agencies. 70.51% of all agency modification was of the order
quently, a party will seek to
only (i.e. penalty assessed).
have the date upon which
the hearing is scheduled be
Appeals to Superior Court:
There were 21 appeals filed in Superior Court.
advanced to an earlier date,
the hearing accelerated,
Rehearings:
because it is thought that a
The rehearing rate was .17%, defined as rehearings scheduled (2)
over hearings concluded (1162**).
need has arisen to have a
ruling on the issue(s)
Completion Rate:
presented as early as
The completion rate was 97.99%, defined as cases completed
possible. In either case,
(1996) over new cases filed (2037).
A.R.S § 41-1092.05 (C) and
Continuance:
A.A.C. R2-19-110 require
The average length of a first time continuance based on a sample of
that the party who requests
cases (first hearing setting and first continuance both occurred in the
the change in the date for
3rd quarter) was 42 days. The frequency of continuance, defined as
the number of continuances granted (1335) over the total number of
hearing demonstrate good
cases first scheduled (2032), expressed as a percent, was 65.7%.
cause to have the matter
The ratio of first settings (3125) to continued settings on the calendar
moved to an earlier or later
(1326) was 1 to 0.425
day on the calendar. The
Dispositions:
motion should be filed only in
Hearings conducted: 58.2%; vacated prior to hearing: 38.2%;
support of a legitimate
hearings withdrawn by agency: 3.6%.
purpose. Illegitimate reasons
Contrary Recommendations and Agency Response: 17.95% of
for the filing of such a motion
recommendations were contrary to the original agency action where
would include that of delay or
the agency took a position. Agency acceptance of contrary
merely to frustrate the
recommendations was 84.87%.
opposing party. It should be
noted that, generally, there is
a presumption that the
*.6% of ALJ recommended decisions were certified as final by the OAH due to
calendar should not be
agency inaction or rendered moot by settlement.
disturbed. There are many
** Cases which were vacated are not included
other citizens and public
entities whose cases are
awaiting a time slot within
which to air their grievances.
Therefore, in consideration of the
“Motions”
motion, in addition to observance of the
continued from page 1
clearly stated requirements of statute
and rule, the Administrative Law Judge
will weigh the unfairness to the other
that a licensed Arizona attorney participarty of delay or expedition, should the
pate in the process. That occurs when
request be granted, against the particuan attorney who is licensed and in good
standing in another jurisdiction, but not in lars of the asserted hardship that a
denial of postponement or advancement
Arizona, desires to represent a party.
would create. In preparation of the
Before the out-of-state attorney is
motion, a party should be very careful
permitted to represent the party, he or
(1) to familiarize itself with the rule, (2)
she must be admitted pro hac vice (“for
ensure that it has good cause for the
this case only”) to practice before this
request before it asks for a calendar
Arizona tribunal. The Office of Adminisreassignment, and (3) not to expect that
trative Hearings’ web site,
the request will be granted as of right.
www.azoah.com, provides the proper
This last point holds fast even if the
form and style for the submission of a
opposing party does not object to the
motion pro hac vice.
motion.

3rd Quarter Statistics At A Glance

page 2

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 rules do not explicitly 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

Agency Response to Recommended Decisions January 1 - March 31, 2002

A gency rejects the recommended
decision
1.09%

1800
1600

1557

A LJ Decision Certi fied as Final Upon
A gency Inacti on
0.30%

A gency amends recommended order
only
2.61%

1400

A LJ Decision Moot Due to Settlement
0.30%

1000

A gency amends findi ngs of
facts/conclusions of law only
1.09%

800
600
400
200
43

18

18

5

5

ALJ Decision Moot Due
to Settlement

ALJ Decision Cer tif ied
as Final Upon Agency
Inaction

A gency accepts without modification
94.59%

0
Agency amends
Agency rejects the
Agency accepts without Agency amends findings
modification
of facts/conclusions of recommended order only recommended decision
law only

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.

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, January 1 - March 31, 2002
60
52.41
50

45.9

40
Days

cases

1200

30
20
10.26

10.04

14.29

CC

7.06

10
1.34

AAA

2.13

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.

2037 Cases Filed January 1, 2002 - March 31, 2002
3rd Q

Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Bd. Occup’l Therapy
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges

1
0
0
0
176
0
0
1025
2
5
1
0
1
22
3
58
0
2
0
0

FY 2002

7
0
0
6
248
2
0
3937
8
8
1
3
1
38
15
181
0
5
0
0

3rd Q FY 2002

3rd 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

22
0
0
57
1
43
0
2
58
20
4
19
0
2
2
0
0
1
0
0

41
12
0
171
3
85
0
5
176
89
9
55
0
4
7
0
30
2
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

4
13
0
0
0
4
7
0
0
8
0
397
22
12
0
1
4
0
4
23

9
21
0
0
0
9
13
0
0
18
0
1233
79
52
0
1
6
0
14
80

Evaluations of OAH Services
Unrepresented Responses 3rd Quarter

All Responses 3rd Quarter
700
600
500
400
300
200
100
0

Excellent
Good

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

Poor

Excellent
Good
Average
Poor

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

Average

400
350
300
250
200
150
100
50
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

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.

7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously

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

This publication is available in alternative formats.
The OAH is an equal opportunity employer.