The Jane Dee Hull Governor OAH Cliff J. Vanell Director Vol. 24 July 2002 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. Order of Presentation, Manner of Presentation and Conduct During Proceedings Casey J. Newcomb, Administrative Law Judge The Administrative Law Judge begins a hearing by (1) reading the caption of the case; (2) stating the nature and scope of the hearing; and (3) identifying the parties, counsel and witnesses for the record. See Arizona Administrative Code (“A.A.C.”) R2-19-116(B). The parties should address the Administrative Law Judge as “Your Honor” or “Judge” and treat the Administrative Law Judge with courtesy, respect and deference. The parties may present opening statements. An opening statement is voluntary. Generally, the party with the burden of proof makes the initial opening statement. In most cases, it is the Complainant or the Appellant who has the burden of proof. All other parties may make an opening statement in a sequence determined by the Administrative Law Judge. See A.A.C. R2-19-116(D). At the conclusion of the opening statements, the party with the burden of proof shall initiate the presentation of evidence, unless the parties agree otherwise. However, the Administrative Law Judge may require another party to initiate the presentation of evidence. See A.A.C. R2-19-116(E). “Presentation” 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- “Oh the Burden We Bear!” Gregory L. Hanchett, Administrative Law Judge* Lawyers frequently banter about the term “burden of proof” as though it needs no explanation and is well known to even a lay person. But what does it mean for a litigant to “bear the burden of proof?” Which party to a case has the burden? The failure to fully understand what it means to “bear the burden of proof” can have dire consequences for a litigant. It can mean losing the case. The purpose of this short missive is to shed light on the burden of proof and which party bears that burden. When a litigant is saddled with the burden of proof, that litigant really has two burdens. The first is the “burden of going forward,” also known as the “burden of producing evidence.” The second is called the “burden of persuasion.” The burden of going forward is just what the name implies: The party who has this burden is required to present evidence to prove his or her claim before the opposing party has any requirement to present evidence. The runner who never leaves the starting line is akin to the litigant who fails to meet the burden of going forward. Like the runner who never leaves the blocks, the litigant who fails in the burden of going forward can never hope to win his case because he is never “in the race.” The burden of persuasion, on the other hand, entails more than the burden of putting on some evidence. The burden of persuasion requires a party to persuade the decision maker that the party is entitled to the relief or benefits sought. It is possible for a party to meet the burden of production, yet * Formerly with the OAH, now an ALJ in Montana “Burden” continued page 2 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 D.C. (1999); 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. 4th Quarter Statistics At A Glance Acceptance Rate: ALJ findings of fact and conclusions of law were accepted in 97.64% of all Administrative Law Judge decisions acted upon by the agencies.* ALJ decisions, including orders, were accepted without modification in 94.16% of all Administrative Law Judge decisions acted upon by the agencies. 78.37% of all agency modification was of the order only (i.e. penalty assessed). Appeals to Superior Court: There were 29 appeals filed in Superior Court. Rehearings: The rehearing rate was .45%, defined as rehearings scheduled (5) over hearings concluded (1101). Completion Rate: The completion rate was 112.91%, defined as cases completed** (1933) over new cases filed (1712). 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 4th quarter) was 48.35 days. The frequency of continuance, defined as the number of continuances granted (235) over the total number of cases first scheduled (1888), expressed as a percent, was 12.45%. The ratio of first settings (2043) to continued settings on the calendar (1385) was 1 to 0.678 a. A party must ask relevant and informative questions; b. A party must ask questions that will assist the Administrative Law Judge in making an informed decision; c. A party cannot argue with a witness or make statements or comments in response to a witness’ answer; d. A party cannot ask prejudicial questions; e. A party cannot ask questions that are designed solely to harass a witness; Administrative Law Judge may reopen the record to include the new evidence. However, in most instances, the Administrative Law Judge will not reopen the record and will ignore the new evidence. Unless otherwise provided by the Administrative Law Judge, a hearing is concluded upon the submission of all evidence, the presentation of all closing arguments, or the submission of all post hearing written memoranda, whichever occurs last. See A.A.C. R2-19-116(H). The parties are encouraged to complete an evaluation of the hearing process at the conclusion of the hearing. “Burden” continued from page 1 still lose the case because the party failed to meet the burden of persuasion. Returning to the runner analogy, the litigant who fails to meet his or her burden of persuasion is like g. A party must allow a witness a the runner who loses the race because he reasonable amount of time to has not trained sufficiently to run faster than answer a question; Dispositions: the other runners. While he is obviously Hearings conducted: 56.96%; vacated prior to hearing: 39.06%; ahead of the runner who never left the h. A party cannot interrupt a hearings withdrawn by the agency: 3.98%. starting block, he nevertheless fails to reach witness during the witness’ his goal of winning the race. answer; and Contrary Recommendations and Agency Response: AdministraIn order to meet the burden of tive Law Judge decisions were contrary to the original agency action in 26.97% of cases where the agency took a position. i. A party should refrain from asking persuasion, the litigant bearing that burden Agency acceptance of such contrary Administrative Law Judge must, in most cases, prove his or her case multiple or compound questions decisions was 86.78%. by a “preponderance of the evidence.” This within one question. standard of proof basically requires the litigant to demonstrate to the decision maker Each party must treat all other *.78% of Administrative Law Judge decisions certified as final by the OAH that the existence of the fact in question is parties and witnesses with due to agency inaction or rendered moot by settlement. more likely than not. courtesy, respect and dignity. The ** Cases which were vacated are not included. Which party to an administrative Administrative Law Judge will not tolerate animosity, angry outbursts hearing bears the burden of proof? As a general rule, where a hearing involves the or threats of hostility directed denial of an application for a license or the towards any party or witness. A “Presentation” disruptive person may be removed from the denial of a benefit that is sought, the burden continued from page 1 hearing room and the hearing will proceed in is on the person who applied for the license that person’s absence. See A.A.C. R2-19- or benefit. Where the proceeding involves A party initiates the presentation of disciplinary action against a license, the 120. evidence by testifying on his/her own behalf burden is on the agency seeking such After the parties have concluded or by the direct examination (i.e., questionaction. the presentations of their evidence, the ing) of a witness. An opposing party may As a practical matter, how does a parties may make a closing argument in a cross-examine or ask questions of any sequence determined by the Administrative party meet the burden of proof? First, witness. The parties shall conduct the direct Law Judge. See A.A.C. R2-19-116(G). A appear at the hearing and be ready to and cross-examination of witnesses in the closing argument is voluntary. It allows the proceed with evidence. Some litigants make order and manner determined by the the mistake of believing that an appeal can parties to summarize the evidence preAdministrative Law Judge to expedite and sented during the hearing and to argue their be won by simply filing the notice of appeal ensure a fair hearing. The Administrative positions based on the evidence presented or perhaps sending a letter without appearLaw Judge shall make rulings necessary to during the hearing. The Administrative Law ing for the hearing. When a party bears the prevent argumentative, repetitive or irrelJudge may allow the parties to supplement burden of going forward and persuasion, his evant questioning. See A.A.C. R2-19or her failure to appear for the hearing their closing arguments with written 116(F). results in an obvious failure to meet either memoranda. See A.A.C. R2-19-116(G). A party should remember the burden and ensures that the party will lose. However, the parties cannot present new following tips when questioning a witness Second, be prepared. To meet the evidence during the closing argument or via during direct and cross-examination: burden of production, a party who bears that the written memoranda. If that occurs, the f. A party cannot repeatedly ask a witness the same question; page 2 Agency Response to Administrative Law Judge Decisions April 1 - June 30, 2002 1800 Agency rejects the Administrative Law Judge decision 1.39% 1676 Administrative Law Judge decision Moot Due to Settlement 0.06% Administrative Law Judge Decision Certified as Final Upon Agency Inaction 0.72% Agency amends order only 3.46% 1600 1400 1000 Agency amends findings of facts/conclusions of law only 0.95% 800 600 400 200 62 17 25 1 13 Agency rejects the Administrative Law Judge decision Administrative Law Judge decision Moot Due to Settlement Administrative Law Judge Decision Certified as Final Upon Agency Inaction 0 Agency accepts without modification Agency amends findings of facts/conclusions of law only Agency amends order only burden must be prepared to go forward with his or her evidence at the time of the hearing. It does no good to tell the decision maker that you have a document that you wish to have placed in evidence but that you forgot to bring it with you. Make sure that every document that you wish to have admitted into evidence is with you and available at the time of the hearing. Remember that A.A.C. R2-19-115 requires you to provide a copy to other parties when you present it at the hearing, if not done so beforehand. Likewise, have all witnesses available and ready to testify. Like the runner who trains, the litigant who understands the burden of proof puts himself or herself in the best position to reach the goal of winning. Agency accepts without modification 93.42% Average Time Between Selected Events - Appealable Agency Actions v. Contested Cases*, April 1 - June 30, 2002 60.00 56.20 50.00 44.18 40.00 Days cases 1200 30.00 20.00 AAA 8.00 10.00 2.15 10.74 10.02 12.16 CC 3.50 0.00 Request for Hearing to Scheduling Scheduling to First Hearing Date Conclusion of Hearing to ALJ Decision to Agency 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. 1712 Cases Filed April 1, 2002 - June 30, 2002 Accountancy Acupuncture Board 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 Cosmetology 4th Q FY 2002 20 0 4 79 0 0 779 2 5 0 4 0 14 0 57 0 4 0 0 11 27 0 10 327 2 0 3404 10 13 0 7 1 52 15 238 0 9 0 0 52 4th Q FY 2002 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 Occupation Therapy Osteopathic Parks page 3 14 0 69 0 22 0 0 62 24 5 13 0 1 2 0 6 1 0 0 0 26 0 240 3 107 0 5 238 113 14 68 0 5 9 0 36 3 1 0 0 4th Q FY 2002 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 Contractors Real Estate Revenue School - Deaf & Blind Secretary of State Technical Registration Water Qual. App. Bd. Water Resources Weights and Measures 3 4 0 0 0 2 0 0 0 5 0 410 11 17 1 2 0 0 4 55 12 24 0 0 0 11 13 0 0 23 0 1645 90 69 1 3 6 0 18 135 Evaluations of OAH Services Unrepresented Responses 4th Quarter All Responses 4th Quarter Average 9 8 tio n Q ue s tio n 7 Q ue s tio n 6 Q ue s tio n 5 Q ue s tio n ue s Q ue s tio n 3 2 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 4 Poor 1 Poor Good Q Average Excellent tio n Good 400 350 300 250 200 150 100 50 0 ue s Excellent Q 800 700 600 500 400 300 200 100 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.