CHAPTER Hedc 200 RULES OF PRACTICE AND PROCEDURE

Statutory Authority: RSA 541-A:16, I and RSA 541-A:30-a, II, III

PART Hedc 201 PURPOSE AND APPLICABILITY

Hedc 201.01 Purpose. The purpose of this chapter is to provide rules of practice and procedure for the conduct of adjudicative proceedings in contested cases. The commission has adopted these rules for the purpose of establishing an orderly procedure for acquiring sufficient information to make fair and reasoned decisions. The provisions of these rules are intended to supplement the procedures established by RSA 541-A and procedures established under any statute relating to the commission conducting the hearing.

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PART Hedc 202 DEFINITIONS

Hedc 202.01 Definitions.

(a) “Appearance” means a written notification to the commission that a party or a party’s representative intends to actively participate in a hearing.

(b) “Hearing” means “adjudicative proceeding” as defined by RSA 541-A:1, I, namely, “the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36.”

(c) “Motion” means a request to the presiding officer for an order or ruling directing some act to be done in favor of the party making the motion, including a statement of justification or reasons for the request.

(d) “Natural person” means a human being.

(e) “Party” means “party” as defined by RSA 541-A:1, XII, namely, “each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party.” The term “party” includes all intervenors in a proceeding, subject to any limitations established pursuant to RSA 541-A:32, III.

(f) “Person” means “person” as defined by RSA 541-A:1, XIII, namely, “any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.”

(g) “Presiding officer” means “presiding officer” as defined in RSA 541-A:1, XIV, namely, “that individual to whom the agency has delegated the authority to preside over a proceeding, if any; otherwise it shall mean the head of the agency.”

(h) “Proof by a preponderance of the evidence” means a demonstration by admissible evidence that a fact or legal conclusion is more probable than not to be true.

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PART Hedc 203 PRESIDING OFFICER; WITHDRAWAL AND WAIVER OF RULES

Hedc 203.01 Presiding Officer; Appointment; Authority.

(a) All hearings shall be conducted for the commission by a natural person appointed or authorized to serve as a presiding officer.

(b) A presiding officer shall as necessary:

(1) Regulate and control the course of a hearing;

(2) Facilitate an informal resolution of an appeal;

(3) Administer oaths and affirmations;

(4) Issue subpoenas to compel the attendance of witnesses at hearings or the production of documents, if so authorized by law;

(5) Receive relevant evidence at hearings and exclude irrelevant, immaterial, or unduly repetitious evidence;

(6) Rule on procedural requests, including adjournments or postponements, at the request of a party or on the presiding officer's own motion;

(7) Question any person who testifies;

(8) Cause a complete record of any hearing to be made, as specified in RSA 541-A:31, VI; and

(9) Take any other action consistent with applicable statutes, rules, and case law necessary to conduct the hearing and complete the record in a fair and timely manner.

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Hedc 203.02 Withdrawal of Presiding Officer or Member of the Commission.

(a) Upon their own initiative or upon the motion of any party, a presiding officer or member of the commission shall, for good cause, withdraw from any hearing.

(b) Good cause shall exist if a presiding officer or member of the commission:

(1) Has a direct interest in the outcome of a proceeding, including, but not limited to, a financial or family relationship, within the third degree of relationship, with any party;

(2) Has made statements or engaged in behavior which objectively demonstrates that they have prejudged the facts of a case; or

(3) Personally believes that they cannot fairly judge the facts of a case.

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Hedc 203.03 Waiver or Suspension of Rules by Presiding Officer. The presiding officer, upon the presiding officer’s own initiative or upon the motion of any party, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate, and efficient resolution of issues pending before the commission than would adherence to a particular rule or procedure.

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PART Hedc 204 FILING, FORMAT AND DELIVERY OF DOCUMENTS

Hedc 204.01 Date of Issuance or Filing. All written documents governed by these rules shall be rebuttably presumed to have been issued on the date noted on the document and to have been filed with the commission on the actual date of receipt by the commission, as evidenced by a date stamp placed on the document by the commission in the normal course of business.

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Hedc 204.02 Format of Documents.

(a) All correspondence, pleadings, motions, or other documents filed under these rules shall:

(1) Include the title and docket number of the proceeding, if known;

(2) Be typewritten or clearly printed on durable paper 8 1/2 by 11 inches in size;

(3) Be signed by the party or proponent of the document, or, if the party appears by a representative, by the representative; and

(4) Include a statement certifying that a copy of the document has been delivered to all parties to the proceeding in compliance with Hedc 204.03.

(b) A party’s or representative's signature on a document filed with the commission shall constitute certification that:

(1) The signer has read the document;

(2) The signer is authorized to file it;

(3) To the best of the signer’s knowledge, information, and belief there are good and sufficient grounds to support it; and

(4) The document has not been filed for purposes of delay.

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Hedc 204.03 Delivery of Documents.

(a) Copies of all petitions, motions, exhibits, memoranda, or other documents filed by any party to a proceeding governed by these rules shall be delivered by that party to all other parties to the proceeding.

(b) All notices, orders, decisions, or other documents issued by the presiding officer or commission shall be delivered to all parties to the proceeding.

(c) Delivery of all documents relating to a proceeding shall be made by personal delivery or by depositing a copy of the document, by first class mail, postage prepaid, in the United States mail, addressed to the last address given to the commission by the party.

(d) When a party appears by a representative, delivery of a document to the party's representative at the address stated on the appearance filed by the representative shall constitute delivery to the party.

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PART Hedc 205 TIME PERIODS

Hedc 205.01 Computation of Time.

(a) Unless otherwise specified, all time periods referenced in this chapter shall be calendar days.

(b) Computation of any period of time referred to in these rules shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

(c) If the last day of the period so computed falls on a Saturday, Sunday, or legal holiday, then the time period shall be extended to include the first business day following the Saturday, Sunday, or legal holiday.

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PART Hedc 206 MOTIONS

Hedc 206.01 Motions; Objections.

(a) Motions shall be in written form and filed with the presiding officer, unless made in response to a matter asserted for the first time at a hearing or on the basis of information which was not received in time to prepare a written motion.

(b) Oral motions and any oral objection to such motions shall be recorded in full in the record of the hearing. If the presiding officer finds that the motion requires additional information in order to be fully and fairly considered, the presiding officer shall direct the moving party to submit the motion in writing, with supporting information.

(d) Failure by an opposing party to object to a motion shall not in and of itself constitute grounds for granting the motion.

(e) The presiding officer shall rule upon a motion after full consideration of all objections and other factors relevant to the motion.

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PART Hedc 207 NOTICE OF HEARING; APPEARANCES; PRE-HEARING CONFERENCES

Hedc 207.01 Commencement of Hearing. A hearing shall be commenced by an order of the commission giving notice to the parties as required by Hedc 207.03.

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Hedc 207.02 Docket Numbers. A docket number shall be assigned to each matter to be heard which shall appear on the notice of hearing and all subsequent orders or decisions of the commission.

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Hedc 207.03 Notice of Hearing. A notice of a hearing issued by the commission shall contain the information required by RSA 541-A:31, III, namely:

(a) A statement of the time, place, and nature of any hearing;

(b) A statement of the legal authority under which a hearing is to be held;

(d) A short and plain statement of the issues presented; and

(e) A statement that each party has the right to have an attorney represent them at their own expense.

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Hedc 207.04 Appearances and Representation. A party or the party’s representative shall file an appearance that includes the following information:

(a) A brief identification of the matter;

(b) A statement as to whether or not the representative is an attorney and if so, whether the attorney is licensed to practice in New Hampshire; and

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Hedc 207.05 Prehearing Conference. Any party may request, or the presiding officer shall schedule on their own initiative, a prehearing conference in accordance with RSA 541-A:31, V to consider:

(a) Offers of settlement;

(b) Simplification of the issues;

(d) Limitations on the number of witnesses;

(e) Changes to standard procedures desired during the hearing by consent of the parties;

(f) Consolidation of examination of witnesses; or

(g) Any other matters which aid in the disposition of the proceeding.

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PART Hedc 208 INTERVENTION

Hedc 208.01 Intervention.

(a) A non-party may intervene in a matter pending before the commission under the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that the non-party's rights or other substantial interests might be affected by the proceeding or that the non-party qualifies as an intervenor under any provision of law.

(b) If the presiding officer determines that such intervention would be in the interests of justice and would not impair the orderly and prompt conduct of the hearing, the presiding officer shall grant the motion for intervention.

(c) Except as limited by the presiding officer under RSA 541-A:32, III, an intervenor shall be entitled to participate in a hearing as a party.

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PART Hedc 209 POSTPONEMENT REQUESTS AND FAILURE TO ATTEND HEARING

Hedc 209.01 Postponements.

(a) Any party to a hearing may make an oral or written motion that a hearing be postponed to a later date or time.

(b) If a postponement is requested by a party to the hearing, it shall be granted if the presiding officer determines that good cause has been demonstrated. Good cause shall include:

(1) The unavailability of parties, witnesses, or attorneys necessary to conduct the hearing;

(2) The likelihood that a hearing will not be necessary because the parties have reached a settlement; or

(3) Any other circumstances that demonstrate that a postponement would assist in resolving the case fairly.

(c) If the later date, time, and place are known at the time of the hearing that is being postponed, the date, time, and place shall be stated on the record. If the later date, time, and place are not known at the time of the hearing that is being postponed, the presiding officer shall issue a written scheduling order stating the date, time, and place of the postponed hearing as soon as practicable.

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Hedc 209.02 Failure to Attend Hearing. If any party to whom notice has been given in accordance with Hedc 207.03 fails to attend a hearing, the presiding officer shall declare that party to be in default and shall either:

(a) Dismiss the case, if the party with the burden of proof fails to appear; or

(b) Hear the testimony and receive the evidence offered by a party, if that party has the burden of proof in the case.

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PART Hedc 210 REQUESTS FOR INFORMATION OR DOCUMENTS

Hedc 210.01 Voluntary Production of Information.

(a) Each party shall attempt in good faith to make complete and timely responses to requests for the voluntary production of information or documents relevant to the hearing.

(b) When a dispute between parties arises concerning a request for the voluntary production of information or documents, any party may file a motion to compel the production of the requested information under Hedc 210.02.

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Hedc 210.02 Motions to Compel Production of Information.

(a) Any party may make a motion requesting that the presiding officer order the parties to comply with information requests. The motion shall be filed at least 30 days before the date scheduled for the hearing, or as soon as possible after receiving the notice of hearing if such notice is issued less than 30 days in advance of the hearing.

(b) The moving party’s motion shall:

(1) Set forth in detail those factors which it believes justify its request for information; and

(2) List with specificity the information it is seeking to discover.

(c) When a party has demonstrated that such requests for information are necessary for a full and fair presentation of the evidence at the hearing, the presiding officer shall grant the motion.

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Hedc 210.03 Mandatory Pre-Hearing Disclosure of Witnesses and Exhibits. At least 5 days before the hearing, the parties shall exchange a list of all witnesses to be called at the hearing with:

(a) A brief summary of their testimony;

(b) A list of all documents or exhibits to be offered as evidence at the hearing; and

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PART Hedc 211 RECORD, PROOF, EVIDENCE, AND DECISIONS

Hedc 211.01 Record of the Hearing.

(a) The commission shall record the hearing by tape recording or other method that will provide a verbatim record.

(b) If any person requests a transcript of the taped record, the commission shall cause a transcript to be prepared and, upon receipt of payment for the cost of the transcription, shall provide copies of the transcript to the requesting party.

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Hedc 211.02 Standard and Burden of Proof. The party asserting a proposition shall bear the burden of proving the truth of the proposition by a preponderance of the evidence.

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Hedc 211.03 Testimony; Order of Proceeding.

(a) Any person offering testimony, evidence, or arguments shall state for the record their name and role in the proceeding. If the person is representing another person, the person being represented shall also be identified.

(b) Testimony shall be offered in the following order:

(1) The party or parties bearing the burden of proof and such witnesses as the party may call; and

(2) The party or parties opposing the party who bears the overall burden of proof and such witnesses as the party may call.

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Hedc 211.04 Evidence.

(a) Receipt of evidence shall be governed by the provisions of RSA 541-A:33.

(b) All documents, materials, and objects offered as exhibits shall be admitted into evidence unless excluded by the presiding officer as irrelevant, immaterial, unduly repetitious, or legally privileged.

(c) All objections to the admissibility of evidence shall be stated as early as possible in the hearing, but not later than the time when the evidence is offered.

(d) Transcripts of testimony and documents or other materials admitted into evidence shall be public records, unless the presiding officer determines that all or part of a transcript or document is exempt from disclosure under RSA 91-A:5 or applicable case law.

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Hedc 211.05 Proposed Findings of Fact and Conclusions of Law.

(a) Any party may submit proposed findings of fact and conclusions of law to the presiding officer prior to or at the hearing.

(b) Upon request of any party, or if the presiding officer determines that proposed findings of fact and conclusions of law would serve to clarify the issues presented at the hearing, the presiding officer shall specify a date after the hearing for the submission of proposed findings of fact and conclusions of law.

(c) In any case where proposed findings of fact and conclusions of law are submitted, the decision shall include rulings on the proposals.

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Hedc 211.06 Closing the Record.

(a) After the conclusion of the hearing, the record shall be closed and no other evidence shall be received into the record, except as allowed by (b) below and Hedc 211.07.

(b) Before the conclusion of the hearing, a party may request that the record be left open to allow the filing of specified evidence not available at the hearing. If the other parties to the hearing have no objection or if the presiding officer determines that such evidence is necessary to a full consideration of the issues raised at the hearing, the presiding officer shall keep the record open for the period of time necessary for the party to file the evidence.

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Hedc 211.07 Reopening the Record. At any time prior to the issuance of the decision on the merits, the presiding officer, on the presiding officer’s own initiative or on the motion of any party, shall reopen the record to receive relevant, material, and non-duplicative testimony, evidence, or arguments not previously received, if the presiding officer determines that such testimony, evidence, or arguments are necessary to a full and fair consideration of the issues to be decided.

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Hedc 211.08 Decisions.

(a) A member of the commission shall not participate in making a decision unless they personally heard the testimony in the case, unless the matter’s disposition does not depend on the credibility of any witness, and the record provides a reasonable basis for evaluating the testimony.

(b) If a presiding officer has been delegated the authority to conduct a hearing in the absence of a quorum of the commission who are to render a final decision, the presiding officer shall submit to the commission a written proposal for decision containing a statement of the reasons for the decision and findings of fact and rulings of law necessary to the proposed decision.

(c) If a proposal for decision in a matter not personally heard by a member of the commission is adverse to a party to the proceeding other than the commission itself, the commission shall serve a copy of the proposal for decision on each party to the proceeding and provide an opportunity to file exceptions and present briefs and oral arguments to the commission.

(d) A proposal for decision shall become a final decision upon its approval by the commission.

(e) The commission shall keep a decision on file in its records for at least 5 years following the date of the final decision or the date of the decision on any appeal.

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PART Hedc 212 MOTION FOR REHEARING

Hedc 212.01 Purpose. The rules in this part are intended to supplement any statutory provisions, including RSA 541, that require or allow a person to request a rehearing of a decision of the commission prior to appealing the decision.

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Hedc 212.02 Applicability. The rules in this part shall apply whenever any person has a right under applicable law to request a rehearing of a decision prior to filing an appeal of the decision with the court having appellate jurisdiction.

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Hedc 212.03 Filing and Content of Motion.

(a) A motion for rehearing shall be filed within 30 days of the date of a commission decision or order.

(b) A motion for rehearing shall:

(1) Identify each error of fact, error of reasoning, or error of law which the moving party wishes to have reconsidered;

(2) Describe how each error causes the commission’s decision to be unlawful, unjust, or unreasonable, or illegal in respect to jurisdiction, authority, or observance of the law, an abuse of discretion, or arbitrary unreasonable or capricious;

(3) State concisely the factual findings, reasoning, or legal conclusion proposed by the moving party; and

(4) Include any argument or memorandum of law the moving party wishes to file.

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Hedc 212.04 Standard for Granting Motion for Rehearing.

(a) A motion for rehearing in a case subject to appeal under RSA 541 shall be granted if it demonstrates that the commission’s decision is unlawful, unjust, or unreasonable.

(b) A motion for rehearing in a case subject to appeal by petition for writ of certiorari shall be granted if it demonstrates that the commission’s decision is illegal in respect to jurisdiction, authority, or observance of law, an abuse of discretion or arbitrary, unreasonable, or capricious.

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Hedc 212.05 Decision on Motion for Rehearing. The commission shall grant or deny a motion for rehearing or suspend the order or decision pending further consideration within 10 days of the filing of the motion for rehearing.

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APPENDIX

Rule	Statute
Hedc 200	RSA 541-A:16, I(b); RSA 541-A:30-a