Ala. Admin. Code r. 335-2-1-.10

Current through Register Vol. 42, No. 7, April 30, 2024

Section 335-2-1-.10 - Prehearing Procedure

(1) Upon receipt by the Department of a request for hearing timely filed pursuant to Rule 335-2-1-.04, the Department shall waive the requirements of ADEM Admin. Code Rule 335-1-1-.06 and shall make the Department's files immediately available to the petitioner and/or the petitioner's representative.

(2) No later than 15 days prior to the hearing, except by consent of the parties, the Commission or Hearing Officer shall direct the parties to appear at a specified time and place for one or more conferences, prior to or during a hearing to consider:

(a) settlement of the case;

(b) the identification, clarification, simplification, or limitation of the issues;

(c) the necessity or desirability of amendments to pleadings, except that amendments to cure jurisdictional defects shall not be allowed;

(d) the submission of admissions or stipulations as to facts or the genuineness of documents which will avoid unnecessary proof;

(e) the identification of facts, and the source thereof, of which official notice is proposed to be taken;

(f) the identification of persons with knowledge of any relevant matter;

(g) the identification of any expert witnesses expected to be called by any party to testify at the hearing and the substance of the facts and opinions to which the expert witness is expected to testify and a summary of the grounds for each opinion;

(h) the limitation of the number of expert or other witnesses;

(i) the deadline for the service of subpoenas to compel the attendance of any witness at the hearing;

(j) the need for the issuance of subpoenas for the production of any papers, books, accounts, payrolls, documents, or records, either prior to or at the hearing;

(k) the need for the issuance of subpoenas to compel the attendance of any witness at the taking of the witness' deposition, if such witness is unable to be present or to testify at the hearing because of age, illness, infirmity, or imprisonment or if the parties have agreed to the submission of the testimony of such witness in verified form;

(l) the possibility of submitting any evidence in verified form when the hearing will be expedited and the interests of the parties will not be prejudiced thereby, provided that the right of cross-examination of any witness shall not be denied;

(m) setting a time for the hearing; and

(n) such other matters as may aid in the disposition of the case.

(3)Pre-Hearing Order.

(a) The Commission or Hearing Officer shall issue a written prehearing order reciting the action taken at the conference and the agreements made by the parties as to any of the matters considered.

(b) The Pre-Hearing Order shall include:

1. A statement of petitioner's allegation of the error(s) committed by the Department in taking the contested administrative action;

2. A statement of the factual basis supporting the petitioner's allegation of error.

3. A statement of the legal issues raised in the appeal and each party's position on said issues,

4. A statement of agreed and disputed facts,

5. A schedule for the exchange of the following:

(i) copies of all documents and exhibits which each party intends to introduce into evidence,

(ii) the name, address and relationship to the appeal of each fact witness that each party intends to call, along with a brief narrative summary of the expected testimony of each witness;

(iii) the name, address and qualifications of each expert witness that each party intends to call, along with a brief narrative summary of the facts and opinions to which the expert witness is expected to testify and a summary of the grounds for each opinion.

6. Such other matters as the Hearing Officer deems appropriate.

(c) The order shall identify the manner in which documents and exhibits shall be marked for identification. The order shall provide that documents that have not been exchanged and witnesses whose names, addresses, qualifications and/or relationship to the appeal have not been exchanged shall not be introduced into evidence or allowed to testify at the hearing without a determination by the Commission or Hearing Officer that introduction of the evidence would not cause undue prejudice and that, in such a case, the Commission or Hearing Officer shall allow the parties reasonable opportunity to review new evidence prior to its being offered into evidence. In addition, the order shall limit the issues for consideration at the hearing to those not disposed of by admissions or agreement of the parties and those which are properly before the Commission. The Pre-Hearing Order shall specify only those issues identified in the request for hearing unless the issue is based on facts that were not known and reasonably could not have been known to the petitioner within the time required by statute for filing a request for hearing. Such order, when entered as amended, shall control the subsequent course of the hearing, unless modified to prevent manifest injustice.

Authors: David A. Ludder, Olivia H. Jenkins

Ala. Admin. Code r. 335-2-1-.10

Effective July 1, 1983. Amended: Filed September 27, 1994; effective November 1, 1994.

Statutory Authority:Code of Ala. 1975, §§ 22-22A-5, 22-22A-6, 22-22A-722-22A -8.