TITLE 22: COURTS
CHAPTER 600: ADMINISTRATIVE HEARINGS OFFICE
PART 1: GENERAL ADMINISTRATIVE HEARING
RULES AND PROCEDURES
22.600.1.1 ISSUING AGENCY: Administrative hearings office, Wendell Chino
Building, 1220 South St. Francis Drive, P.O. Box 6400, Santa Fe, New Mexico 87502.
[22.600.1.1 NMAC -
N, 2/1/2018]
22.600.1.2 SCOPE:
This part applies to all proceedings, cases, and hearing before the administrative
hearings office and all parties that appear before the administrative hearings
office, unless a more specific statutory or regulatory provision applies to the
specific hearing type being conducted.
[22.600.1.2 NMAC -
N, 2/1/2018]
22.600.1.3 STATUTORY AUTHORITY: Paragraph (1) of Subsection A of 7-1B-5 NMSA
1978.
[22.600.1.3 NMAC -
N, 2/1/2018]
22.600.1.4 DURATION: Permanent.
[22.600.1.4 NMAC -
N, 2/1/2018]
22.600.1.5 EFFECTIVE DATE: February 1, 2018, unless a later date is
cited at the end of a section, in which case the later date is the effective
date.
[22.600.1.5 NMAC -
N, 2/1/2018]
22.600.1.6 OBJECTIVE: The objective of this part is to provide
general hearing practice rules for hearings before the administrative hearings
office.
[22.600.1.6 NMAC -
N, 2/1/2018]
22.600.1.7 DEFINITIONS: The following terms apply to:
A. “Administrative
hearings office” is the agency established under Section 7-1B-1 NMSA 1978.
B. “Administrative
hearings office facility” is an office facility owned or leased by the administrative
hearings office.
C. “Business day”
means Monday through Friday, excluding Saturday, Sunday, or a state-recognized
holiday as specified by Section 12-5-2 NMSA 1978, except for President’s Day,
which by practice of the state personnel office is awarded on the day after
Thanksgiving. For the purposes of determining the timeliness of an electronic
filing, a business day commences at 12:00 am and concludes at 11:59 p.m.
D. “Chief hearing officer” is the appointed head of the
administrative hearings office under the Administrative Hearings Office Act,
Section 7-1B-3 NMSA 1978, or the chief hearing officer’s designee during the
absence of the chief hearing officer, or the acting, interim chief hearing
officer pending appointment of that position.
E. “Hearing” means
an on the record, adjudicatory proceeding between two parties before an
assigned hearing officer of the administrative hearings office.
F. “Hearing location” is the administrative hearings office facility
or another state, county, municipal, or private office location where the administrative
hearings office has arranged space to conduct a scheduled hearing or hearings.
G. “Hearing officer”
is the attorney assigned by the chief hearing officer or designee of the chief
hearing officer to serve as a neutral decision maker in any adjudicatory
proceeding before the administrative hearings office. The person assigned as hearing officer must
be licensed to practice law in New Mexico or eligible for temporary licensure
to practice in New Mexico as determined by the New Mexico supreme
court. The hearing officer may be
a classified employee in the state personnel system with the administrative
hearings office either as an attorney or administrative law judge, may be under
contract with the administrative hearings office as a contract attorney,
administrative law judge, or judge, or may be an attorney, administrative law
judge, or judge serving in a voluntary capacity for the administrative hearings
office.
H. “MVD” is the motor
vehicle division of the New Mexico taxation and revenue department.
I. “Order” means
any directive, command, determination of a disputed issue, or ruling on a
disputed issue, by the administrative hearings office directed to the parties
involved in a proceeding before the administrative hearings office.
J. “Party” means
the named person, entity, or agency in an action before the administrative
hearings office.
K. “Pleading” means any written request, motion, or
proposed action filed by a party with the administrative hearings office.
L. “Request for
hearing” means a formal written request from a party to be heard on a
particular matter where the administrative hearings office has statutory
authority to conduct an adjudicatory proceeding.
M. “Sua
Sponte” means any order of the chief hearing
officer or the assigned hearing officer made without prompting of the parties.
N. “TRD” is the New
Mexico taxation and revenue department.
[22.600.1.7 NMAC -
N, 2/1/2018]
22.600.1.8 APPLICABILITY OF THESE RULES: These rules provide general practice rules for
all proceedings before the administrative hearings office. However, if a more specific regulatory
provision applies to the hearing type at issue, that
more specific regulation controls over these general rules. For example, the
specific rules addressing tax protest hearings would apply over any conflicting
provision contained in these rules.
[22.600.1.8 NMAC -
N, 2/1/2018]
22.600.1.9 STANDING ORDERS: The chief hearing officer may issue, or
withdraw, standing orders addressing general practice issues and filing
protocols for the handling of cases before the administrative hearings office. Such standing orders will be displayed
publicly at administrative hearings office facilities, any administrative
hearings office website, and in any applicable information provided with a
notice of hearing. The parties appearing
before the administrative hearings office are expected to comply with standing
orders addressing general practice protocols and procedures.
[22.600.1.9 NMAC -
N, 2/1/2018]
22.600.1.10 REQUESTING A HEARING BEFORE THE ADMINISTRATIVE
HEARINGS OFFICE:
A. Any party
seeking a hearing before the administrative hearings office shall file a
written request for a hearing with a brief summary identifying the nature of
the dispute, the applicable statute or rule in dispute in the matter, and
identifying the jurisdictional basis for the administrative hearings office to
adjudicate the matter. Such request for
hearing must include the triggering proposed action of TRD or MVD (or other state
agency), such as a denial, suspension, or withdrawal letter, as well as the person
or entity’s written protest or request for hearing challenging that
action/inaction. The request for hearing
must also include the address of record of the party challenging the state’s
action either as included in that person’s request for hearing or contained in
the agency’s official records. If the
administrative hearings office has developed a specific form to request a
hearing in a particular subject matter, the parties are required to use that
form.
B. The
administrative hearings office may reject any request for hearing in which the
administrative hearings office lacks jurisdiction to adjudicate the matter, the
matter is moot, or where the request for hearing is defective, not on the
appropriate form, lacking required supporting documents, or is otherwise
deficient. If the request for hearing is
defective for any reason, the requesting party may correct any deficiency and
resubmit the request for hearing.
C. Upon receipt of
a request for hearing containing the relevant information specified in
subparagraph (A) and for which the administrative hearings office has
jurisdiction to adjudicate the matter, the chief hearing officer or designee
shall assign a hearing officer to preside in the matter based on the knowledge,
expertise, experience, efficiency, and staffing needs of the office. The chief hearing officer may reassign the
matter to another hearing officer if the management of the office or other
circumstances so require it.
[22.600.1.10 NMAC
- N, 2/1/2018]
22.600.1.11 REPRESENTATION AT HEARING, FORMAL ENTRY OF
APPEARANCE/SUBSTITUTION OF COUNSEL, AND WITHDRAWAL FROM REPRESENTATION:
A. Unless otherwise
expressly authorized by statute, only the person challenging the action or a
bona fide employee if the party is an entity or business, or an attorney
licensed or authorized to practice law in New Mexico may represent the person
at hearing. In tax protest hearings, any
person expressly authorized by statute to represent a taxpayer in a tax protest
proceeding may represent the taxpayer before the administrative hearings
office. Any attorney not licensed to practice law in New Mexico must comply
with applicable New Mexico supreme court pro hac vice rules in order to represent the person, business,
or entity at any substantive hearing in the matter.
B. Any attorney
wishing to represent a party must file a formal written entry of appearance
directly with the administrative hearings office listing his or her mailing
address, a fax number (if any), and a valid email address. Any attorney wishing to substitute in for a
previous attorney must file a substitution of counsel containing the same
information required in the initial entry of appearance. Upon withdrawal of representation, consistent
with the rules of professional conduct, the attorney shall give reasonable notice
of the date and time of the scheduled hearing to the party and allow time for
the party to retain other counsel, if needed.
Prior to the hearing, counsel should file a written notice of withdrawal
from representation with the administrative hearings office indicating when
counsel notified the driver of the date and time of the license revocation
hearing.
C. A hearing
officer may deny a request for withdrawal of representation only when withdrawal
would have a clear, materially adverse effect on the party’s interests and
impede the conduct of a full, fair, and efficient hearing.
[22.600.1.11 NMAC
- N, 2/1/2018]
22.600.1.12 FILING OF PLEADINGS:
A. All pleadings
may be filed with the administrative hearings office through mail, facsimile,
or electronic mail as specified in the relevant notice of hearing, with a copy
of such pleading contemporaneously provided to the opposing party through the
same method of service of the filing. The
moving party shall include an attestation, or equivalent statement or
information, that they provided a copy of the pleading to the opposing party.
B. All motions,
except motions made on the record during the hearing or a continuance request
made in a genuine unforeseen emergency circumstance (such as an unexpected
accident, force majeure, or major medical emergency occurring in such close
proximity to the date of the scheduled hearing that a written motion could not
be completed), shall be in writing and shall state with particularity the
grounds and the relief sought.
C. Before
submission of any motion, request for relief, request for continuance, the
requesting party should make reasonable efforts to consult with the opposing
party about that party’s position on the motion unless the nature of the
pleading is such that it can be reasonably assumed the opposing party would
oppose the requested relief. The party
shall state the position of the opposing party in the pleading.
D. Unless a different
deadline applies under an applicable order of the assigned hearing officer, the
opposing party has 14 days to file a written response to a pleading. If any deadline falls on a
Saturday, Sunday, or state-recognized holiday, the deadline falls on the next
business day. The assigned
hearing officer may require a shorter response deadline, especially for
time-sensitive or basic motions like continuance requests. Failure to file a response in opposition may
be presumed to be consent to the relief sought, although the hearing officer is
not required to make such a default ruling on the motion if the relief would be
contrary to the hearing officer’s view of the facts or law on the issues.
E. Absent express permission
of the assigned hearing officer with good cause shown, no pleading filed in a
hearing involving the motor vehicle code or the implied consent act shall
exceed 10 pages, not including the certificate of service, of double-spaced
(except for block quotations), 12-point font. Absent express permission of the assigned
hearing officer with good cause shown, no pleading, including motions and
attached memorandums of support, filed in a hearing involving the tax
administration act or property tax code shall exceed 20 pages, not including
the certificate of service, of double-spaced (except for block quotations),
12-point font. Similarly, with exception of motions for summary judgment or
submission of stipulated facts or a proposed order, attachments to any other
pleading shall not exceed the length of the pleading absent express permission
of the assigned hearing officer. Only relevant
excerpts of a motion exhibit shall be attached, with the pertinent portions
highlighted, underlined, or otherwise emphasized.
F. All pleadings
shall be captioned in a format consistent with the caption included in the notice
of hearing issued by the administrative hearings office, including using the
specific case number, if any, listed in that notice. Generally, that caption shall be centered, in
all capital letters, and in bold font, as shown below:
STATE OF NEW MEXICO
ADMINISTRATIVE HEARINGS OFFICE
(GENERAL TITLE OF APPLICABLE
STATUTE CONTROLLING HEARING)
G. In the event of
a procedural defect or other error with the manner, method, or content of a submitted
pleading, the administrative hearings office may communicate such error to the
filing party and withhold filing of the pleading until the moving party
remedies the procedural defect. Examples
of a procedural defect include, but are not limited to, failure to attest
service to the opposing party, failure to comply with the page limitations,
failure to seek the opposing party’s position, failure to use the form or follow
the specific filing method required by the administrative hearings office for the
type of case at issue, or failure to comply with a standing order governing the
practice before the administrative hearings office.
H. Pleadings will
be marked as filed on the business day that the administrative hearings office
receives the pleading. Any pleading submitted electronically to the administrative
hearings office after 11:59 pm on a business day will not be marked as filed
until the next business day.
[22.600.1.12 NMAC
- N, 1/1/2018]
22.600.1.13 PREHEARING CONFERENCES, STATUS CONFERENCES,
AND STATUS CHECKS:
A. The hearing
officer may direct representatives for all parties to meet together or with the
hearing officer present for a prehearing conference to consider any or all of the
following:
(1) simplify, clarify, narrow or resolve the pending issues;
(2) stipulations and admissions of fact and of the contents and
authenticity of documents;
(3) expedition in the discovery and presentation of evidence,
including, but not limited to, restriction on the number of expert, economic or
technical witnesses;
(4) matters of which administrative notice will be taken; and
(5) such
other matters as may aid in the orderly and expeditious disposition of the
proceeding, including disclosure of the names of witnesses and the identity of
documents or other physical exhibits which will be introduced in evidence in
the course of the proceeding.
B. Prehearing
conferences conducted by the hearing officer will be electronically recorded.
C. The hearing
officer may enter in the record a written order that recites the results of the
conference conducted by the hearing officer. Such order shall include the hearing officer's
rulings upon matters considered at the conference, together with appropriate
directions to the parties. The hearing
officer's order shall control the subsequent course of the proceeding, unless
modified to prevent manifest injustice.
D. The hearing
officer may require the parties to submit a written report of any conference
ordered to be conducted between the parties updating the status of the proceeding
in light of the conference.
E. The hearing
officer may conduct a status conference upon the request of either party or on
the hearing officer’s own initiative, at which time the hearing officer may
require the parties, attorneys, or authorized representatives, to provide
information regarding the status of a proceeding.
F. As part of basic
docket management and to ensure efficient use of staff resources, the chief
hearing officer, or a designee of the chief hearing officer other than the
assigned hearing officer on the case, at any point in the proceeding may check
with the parties about the status of any matters pending before the
administrative hearings office.
[22.600.1.13 NMAC
- N, 2/1/2018]
22.600.1.14 HEARING LOCATION, TIME AND PLACE, NOTICE OF
HEARING:
A. Except for
hearings under the Implied Consent Act or other hearings statutorily required
to occur in a different location, all hearings before the administrative hearings
office will occur in Santa Fe or, at the discretion of the chief hearing
officer, at another administrative hearings office facility in the state. The parties may express a mutual preference
for location of the hearing in their request for hearing for the chief hearing
officer’s consideration. In selecting
the location of the hearing other than a setting in Santa Fe, in addition to
complying with any mandated, applicable statutory hearing location, the chief
hearing officer shall consider and give weight to the location and wishes of
the respective parties, witnesses, and representative in the proceeding, the
duty station of the assigned hearing officer with expertise in the matter, and
the scheduling and staffing needs of the administrative hearings office. If setting a hearing in a location other than
Santa Fe would cause an unreasonable, undue burden to either party, that party
may file a written objection to the setting of the hearing at a location other
than Santa Fe within 10 days of issuance of the notice of hearing, articulating
the reasons supporting the objection. The
chief hearing officer or designee will promptly review the objection and, upon
a showing of an unreasonable, undue burden, may move the hearing to Santa Fe or
another more reasonable location and reassign the matter to another hearing
officer if necessary.
B. The
administrative hearings office will notify the parties to the hearing by mail
of the date, time and, place scheduled for the hearing at least seven days
before the scheduled hearing. This
notice will be directed to the address contained on the request for a hearing
or, if no return address is indicated, to the address last given by the party to
TRD, MVD, or other state entity, or to the address provided by the party’s
attorney in the entry of appearance.
[22.600.1.14 NMAC
- N, 2/1/2018]
22.600.1.15 TELEPHONIC,
VIDEOCONFERENCE, AND OTHER EQUIVALENT ELECTRONIC METHOD HEARINGS:
A. If not otherwise
prohibited by statute, rule, or court ruling, the hearing officer may conduct
the hearing in person or by telephone, videoconference, or other equivalent
electronic method.
B. If the hearing
is to be conducted by telephone, videoconference or other equivalent electronic
method, the notice shall so inform the parties.
Either party may file a written objection to conducting the hearing by
telephone, videoconference, or other equivalent electronic method within 10 days
of the notice of hearing. Failure to
timely object to the conduct of a telephone, videoconference, or other
equivalent electronic method hearing constitutes consent to the hearing
proceeding in that manner and waiver of any other applicable statutory in
county hearing requirement.
C. Upon receipt of
a timely objection, the hearing officer shall consider the applicable legal
requirements, the location of the parties and witnesses, the complexity of the
particular matter, the availability of necessary electronic equipment for
conduct of a full and fair hearing by telephone, videoconference, or other
equivalent electronic method, and the basis of the objection in determining
whether the hearing should occur at a specific location rather than via telephone,
videoconference, or other equivalent electronic method.
D. Provided that the
requesting party has not previously demanded an in-person hearing or otherwise
objected to conducting the matter via telephone, videoconference, or other
equivalent electronic methods, any party may request to appear directly or have
a witness on their behalf appear via telephone, videoconference, or alternative
electronic means by filing a request at least three business days before the
scheduled hearing. The filing of a
request to appear via telephone, videoconference, or other alternative
electronic method shall be deemed as a total and complete waiver of any in-person, in-county hearing requirement
and deemed as consent for all parties, all witnesses, and the hearing officer to
appear via telephone, videoconference, or other equivalent electronic methods.
E. All parties
appearing via telephone, videoconference, or other electronic method shall
provide the administrative hearings office with a working email address or
facsimile number for the exchange of all documentary evidence before or during
the hearing.
F. Failure to
follow the administrative hearings office’s instructions for participating in
the hearing via telephone, videoconference, or other equivalent electronic
method will be treated as a non-appearance at the hearing.
G. Any technical issues
shall be promptly reported to the administrative hearings office according to the
instructions included on the notice of hearing.
H. In the event
that technical or other computer problems prevent a hearing by videoconference or
other electronic method from occurring or otherwise interferes with maintaining
or developing a complete record at the hearing, the parties agree and consent
that the assigned hearing officer at their discretion may continue the matter
to a different time before expiration of the statutory deadline, may order the
parties to appear for an in-person hearing, or may conduct the remaining
portion of the hearing via telephone.
I. If the assigned
hearing officer determines during the course of the hearing, either sua sponte or upon argument of a
party, that an in-person hearing is necessary to adequately complete the
record, address credibility issues, or is otherwise necessary to ensure a full
or fair hearing process, the hearing officer may recess a hearing occurring by
telephone, videoconference, or other equivalent electronic method and reconvene
the proceeding as an in-person hearing.
[22.600.1.15 NMAC
- N, 2/1/2018]
22.600.1.16 CONTINUANCES:
A. At the request
of a party, a witness, or upon the hearing officer’s own determination, a
hearing may be continued for good cause. The hearing officer shall consider only
written continuance requests made at least three working days prior to the
scheduled hearing absent extraordinary, unforeseen circumstances that the
requesting party could not have known earlier. Employees of the administrative hearings
office scheduling section or the chief hearing officer may grant or deny the
request on behalf of the hearing officer. An order to grant or deny the request may be
issued prior to the scheduled hearing or if there is insufficient time to issue
an order prior to the scheduled hearing, the hearing officer may grant or deny
the request on the record at the hearing. No continuance request may be granted unless
there is adequate time to provide notice to the parties, subpoena witnesses and
conduct the rescheduled hearing before expiration of any statutory
jurisdictional deadline.
B. Within the jurisdictional
time limits set by statute, the chief hearing officer may sua
sponte continue any matter as necessary to address
staffing needs, to ensure efficient and adequate use of state resources, and to
manage the hearing docket. To this end,
the chief hearing officer or designee may contact the parties to inquire about the
status of a scheduled case.
C. No case shall be
continued, even with a showing of good cause or an emergency circumstance,
beyond any mandatory, applicable jurisdictional time limit on the case.
[22.600.1.16 NMAC
- N, 1/1/2018]
22.600.1.17 ATTIRE
AT HEARING: All attorneys and other authorized
representatives must be attired in a dignified, professional manner at all
times during the hearing. Witnesses
shall dress in a respectful manner. No
attire or dress so flamboyant, disheveled,
inflammatory, obscene, offensive or revealing as to create a distraction to the
orderly conduct of court proceedings will be permitted.
[22.600.1.17 NMAC
- N, 2/1/2018]
22.600.1.18 BURDEN
OF PROOF, PRESENTATION OF CASE, EVIDENCE:
A. Unless otherwise
specified by statute, the burden of proof in an administrative proceeding
before the administrative hearings office is the preponderance of evidence.
B. The party with
the burden of proof in the case will ordinarily present their case first,
followed by the opposing party, unless the hearing officer makes reasonable
exceptions related to the availability of the witnesses and representatives or
other scheduling concerns.
C. The hearing
officer may require or allow opening statements as the circumstances justify. Opening statements are not ordinarily
evidence, but without objection, may be adopted as evidence by sworn oath of
the party-witness who made the opening statement.
D. All testimony
must be given under oath and will be subject to questioning of the opposing
party. The hearing officer may also ask
questions of the witness as appropriate. At the hearing officer’s discretion, redirect
and recross may be allowed.
E. The parties may
make closing arguments, either orally at the conclusion of the case or, upon
order of the hearing officer, in writing after conclusion of the hearing. The hearing officer may also require the
parties to submit further briefing on any issue in the case, and to submit
proposed findings of fact and conclusions of law. No decision-writing deadline commences until
the parties have submitted any ordered post-hearing briefing.
F. The New Mexico rules
of evidence and civil procedure shall not apply in any matter before the administrative
hearings office unless otherwise expressly and specifically required by statute,
regulation, or order of the hearing officer.
Relevant and material evidence shall be admissible. Irrelevant, immaterial, unreliable, or unduly
repetitious evidence may be excluded. The
hearing officer shall consider and give appropriate weight to all relevant and
material evidence admitted in rendering a final decision on the merits of a
matter.
G. Hearsay evidence
may be admitted in the proceeding.
H. The hearing
officer may take administrative notice of facts not subject to reasonable
dispute that are generally known within the community, capable of accurate and
ready determination by resort to sources whose accuracy cannot be reasonably
disputed, or as provided by an applicable statute. Administrative notice may be taken at any
stage in the proceeding whether or not requested by the parties. A party is entitled to respond as to the
propriety of taking administrative notice which shall include the opportunity
to refute a noticed fact.
I. Parties
objecting to evidence shall timely and briefly state the grounds for the
objection. Rulings on evidentiary
objections may be addressed on the record at the time of the objection,
reserved for ruling in a subsequent written order, or noted as a continuing,
ongoing objection for which ruling is reserved to later in the proceeding.
J. Any party
wishing to submit a video or audio recording into the record must provide a
complete tangible, playable copy that can be retained by the administrative hearings
office as part of the administrative record.
K. In general,
documentary evidence should be no larger than 8.5 inches by 11 inches unless
expressly allowed by the hearing officer.
The hearing officer may admit documentary exhibits presented at hearing
which exceeds 8.5 inches by 11 inches or which cannot be folded, provided the
proponent of such exhibits provide the administrative hearings office with a
copy of the exhibit reduced to 8.5 inches by 11 inches. After the hearing at which the exhibit was
admitted, the reduced copy shall be substituted for the larger exhibit and made
part of the record of the hearing. The
administrative hearings office may permit the proponent of a large exhibit to
make arrangements to obtain a reduced copy, provided that a failure by the
proponent to provide a reduced copy shall be deemed a withdrawal of the
exhibit.
L. In lieu of the
introduction of tangible objects as exhibits, the hearing officer may require
the moving party to submit a photograph, video, or other appropriate substitute
such as a verbal description of the pertinent characteristics of the object for
the record.
[22.600.1.18 NMAC
- N, 2/1/2018]
22.600.1.19 WITNESSES,
EXPERT WITNESSES, AND INVOCATION OF THE RULE:
A. Any person
having relevant, material knowledge related to one of the issues in a hearing
may testify as a witness under oath in the matter. Upon affirming the oath, the witness may be
questioned by both parties and by the hearing officer.
B. Unless a more
specific provision applies, witnesses are ordinarily expected to appear in the
same manner or by the same method as the parties in a proceeding, absent
express preapproval of the assigned hearing officer allowing an appearance by a
different method. For example, if the
hearing is scheduled to be conducted in person in a specific place, the
witnesses are also ordinarily expected to appear in person at that same
place; however, if the matter is set to
occur by telephone or videoconference, then the witnesses may ordinarily appear
by telephone of videoconference.
C. The current or
previously assigned hearing officer in a matter shall not be called and shall not
be a witness in the proceeding.
D. If either party
intends to call and treat a particular witness as an expert witness in the
proceeding, the party must provide a written designation at least seven days
before the scheduled hearing, or with sufficient time before completion of
discovery deadline specified in a scheduling order to allow for deposition, to
the opposing party and the administrative hearings office, identifying the
purported expert, the scope of that expert’s purported testimony relative to
the proceeding, the expert’s credentials, and listing of any materials the
expert reviewed as part of reaching his or her expert opinion. The opposing party may file a response in
opposition before the hearing or challenge the designation of the witness as an
expert during the course of the hearing.
E. At the hearing,
either party can invoke the exclusionary rule, excluding all witnesses other
than the real party in interest, their representative, one main case agent, and
any designated expert witness from the proceeding until the time of their
testimony. If the rule has been invoked,
the witnesses shall not discuss their testimony with each other until the
conclusion of the proceeding. When the
rule has been invoked, any witness who remains in the hearing after conclusion
of their testimony may not be recalled as a witness in the proceeding, except
that any witness may observe the testimony of an expert witness and be recalled
to provide any subsequent rebuttal testimony.
[22.600.1.19 NMAC
- N, 2/1/2018]
22.600.1.20 HEARING OFFICER POWERS AND
RESPONSIBILITIES:
A. Hearings shall
be presided over by a hearing officer designated by the chief hearing officer
of the administrative hearings office.
B. The hearing
officer shall have the duty to conduct fair and impartial hearings, to take all
necessary action to avoid delay in the proceedings and to maintain order. The
hearing officer shall have the powers necessary to carry out these duties,
including the following:
(1) to administer or have administered oaths and affirmations;
(2) to cause depositions to be taken;
(3) to require the production or inspection of documents and
other items;
(4) to require the answering of interrogatories and requests for
admissions;
(5) to rule upon offers of proof and receive evidence;
(6) to regulate the course of the hearings and the conduct of
the parties and their representatives therein;
(7) to issue a scheduling
order, schedule a prehearing conference for simplification of the
issues, or any other proper purpose;
(8) to schedule, continue and reschedule hearings;
(9) to consider and rule upon all procedural and other motions
appropriate in proceeding;
(10) to require the filing of briefs on specific legal issues
prior to or after the hearing;
(11) to cause a complete record of hearings to be made;
(12) to make and issue decisions and orders; and
(13) to
reprimand, or with warning in extreme instances exclude from the hearing, any
person for engaging in a continuing pattern of indecorous, obstinate,
recalcitrant, obstreperous, unethical, unprofessional or improper conduct that
interferes with the conduct of a fair and orderly hearing or development of a
complete record.
C. In the
performance of these functions, the hearing officer shall not be responsible to
or subject to the direction of any officer, employee or agent of the taxation
and revenue department or the department of finance and administration or the
other state agency involved in the proceeding.
D. In the
performance of these adjudicative functions, the hearing officer is prohibited
from engaging in any improper ex parte communications about the substantive
issues with any party on any matter, as addressed in regulation 22.600.2.16
NMAC. An improper ex parte communication
occurs when the hearing officer discusses the substance of a case without the
opposing party being present, except that it is not an improper ex parte
communication for the hearing officer to go on the record with only one party
when the other party has failed to appear at a scheduled hearing.
[22.600.1.20 NMAC
- N, 2/1/2018]
22.600.1.21 CLOSED/PUBLIC
HEARING, SEALED RECORDS, AND DELIBERATIVE NOTES OF HEARING OFFICER:
A. Except for
hearings occurring pursuant to the Implied Consent Act, upon request of the
party challenging the state action, or unless otherwise provided in an
applicable statute or regulation pertinent to the hearing at issue, all
hearings are closed to the public. The
party challenging the state action may submit a written request to open the
hearing to the public, which shall be granted if authorized by statute or
regulation.
B. If the hearing
is open to the public either under the Implied Consent Act, upon request of the
party challenging the state action, or other applicable statute or regulation, members
of the public and the media may attend the hearing so long as they do not
interrupt, interfere, or impede the orderly, fair, and efficient hearing
process. With prior consent of the chief
hearing officer and the assigned hearing officer, media members may record the
proceeding at a fixed location in the hearing room. The hearing officer may direct any member of
the public, including attending media members, to leave the proceeding if they
engage in any conduct that interferes with the hearing officer’s ability to
maintain order, develop the record, and provide a fair and efficient hearing
process.
C. Upon request of
either party, and upon a showing of good cause, the hearing officer may seal a
particular exhibit, document, or portions of a witness’ testimony from public
disclosure if such items contain statutorily-protected confidential
information, privileged information, or otherwise contain private
identification information of a party or third party that is immaterial to a
substantive issue in the proceeding or if its materiality is substantially
outweighed by the prejudice of public release of the information. Upon issuance of an order sealing such
documents or exhibits, these records will remain under seal throughout the
proceeding and shall be returned to the submitting party at the conclusion of
the appeal period or the appeal. The
opposing party shall be entitled to promptly review these documents in preparing
for the hearing, and may rely on those documents during the hearing as
necessary to ensure a fair hearing process, but shall not maintain its own copy
of the sealed document after conclusion of the hearing nor reveal, discuss, or
disclose the contents of these sealed documents to any other party outside of
the hearing process.
D. The hearing
officer’s notes taken during the course of the hearing, any written discussions
with another hearing officer related to the deliberative, decision-making process,
and any draft orders or draft decisions are confidential as part of the
deliberative process and are not subject to public disclosure.
[22.600.1.21 NMAC
- N, 2/1/2018]
22.600.1.22 SUBPOENAS: Any
request for issuance of subpoenas in matters before the administrative hearings
office shall be guided by Rule 45 of the rules of civil procedure for the district
courts of New Mexico, except where provisions of that rule conflict with the
limited powers of the administrative hearings office. Any subpoena issued shall be in the name of
the chief hearing officer of the administrative hearings office. The party requesting the subpoena shall prepare
a proposed subpoena using a form approved by the administrative hearings office,
submit the proposed subpoena to the administrative hearings office for approval
and to the opposing party, and to timely and reasonably serve the subpoena on
the person or entity subject to the subpoena. Unless good cause is shown for a shorter
period, a subpoena shall provide at least 10 days notice
before compelled attendance at a hearing or deposition, and at least 10 days notice before compelled production of materials. All returns or certificates of service on
served subpoenas shall be filed with the administrative hearings office, copied
to the opposing party, and shall be made part of the record of the proceeding.
[22.600.1.22 NMAC
- N, 2/1/2018]
22.600.1.23 LANGUAGE
INTERPRETERS: In matters before the administrative hearings
office, a party needing language interpreter services for translation of one
language into another is responsible for arranging such service for the
hearing. While the person serving as an
interpreter need not be a court-certified interpreter in order to provide
interpretation at a hearing, any person serving as an interpreter in a matter
before the administrative hearings office must affirm the interpreter’s oath
applicable in courts across this state. Upon
reasonable notice of the party to the administrative hearings office, any
interpreter required to be provided under the American with Disabilities Act
shall be provided for by the administrative hearings office.
[22.600.1.23 NMAC
- N, 1/1/2018]
22.600.1.24 FAILURE
TO APPEAR:
A. If a person or
entity challenging the state action fails to appear, either in person or
through a permissible representative, to a duly noticed hearing, the person or
entity waives his, her, or their right to protest or challenge that proposed
state action, the matter shall go on the record for the limited purpose of
addressing notice and non-appearance, and a final judgment and order against
them shall be entered based on the waiver of the hearing by failing to appear.
B. In considering
the non-appearance and whether the person received appropriate notice
necessitating issuance of the judgment, the hearing officer may consider the
contents of the administrative file, information conveyed to or known by
administrative hearings office staff, information related to mailing, including
mail tracking, returned receipt information, and notes written on returned
envelopes of the United States postal service or other mail tracking services,
and arguments offered by the present party, all of which may be addressed on
the record of the hearing or in any subsequent order.
C. Oral rulings based
on a party’s failure to appear are not final until reduced to writing. The hearing officer may issue a different
written order as new information arises after the hearing regarding whether the
notice of hearing was properly sent to the correct address or otherwise
properly served.
[22.600.1.24 NMAC
- N, 2/1/2018]
22.600.1.25 RECONSIDERATIONS:
A. A party may file
a motion for reconsideration no more than 15 days after the date on the final
decision and order. The opposing party
may file a response no more than 15 days after the motion for reconsideration
was filed. Motions for reconsideration
that are not filed within this deadline may be denied automatically. A timely filed motion for reconsideration
should be decided based on the merits whether or not a response is filed.
B. The prevailing
party shall not file a motion for reconsideration. However, if a requested action is granted in
part and denied in part, either party may file a motion for reconsideration.
C. Motions for
reconsideration shall not endeavor to present new evidence previously available,
or discoverable through reasonable diligence, to the parties before the hearing. Motions for reconsideration shall not reargue
the weight of evidence already ruled upon and shall not reiterate legal
arguments already ruled upon. However, a motion for reconsideration may address
gross factual or legal errors/omissions in the final decision and order.
[22.600.1.25 NMAC
- N, 2/1/2018]
22.600.1.26 APPEALS: Each
decision and order issued by the administrative hearings office shall include
information about the appeal process for the type of case at issue. Once the appeal is filed in the appropriate
court, the appealing party shall provide a court-endorsed copy of the appeal to
the administrative hearings office so that the administrative hearings office
can prepare and submit the record proper. Other than preparing and filling the record
proper, the administrative hearings office is not the formal party to the
appeal and does not provide any position on any motions or pleadings submitted
on appeal.
[22.600.1.26 NMAC
- N, 2/1/2018]
22.600.1.27 REQUESTING
COPIES OF EXHIBITS, AUDIO, OR THE ADMINISTRATIVE RECORD:
Either party may request copies of exhibits, documents, records in the
administrative file, or a copy of the audio recording of the proceeding by submitting
a written request to the administrative hearings office. The administrative hearings office may charge
a reasonable fee for copies made, consistent with its fee schedule under the
Inspection of Public Records Act. The
administrative hearings office may also require the requesting party to submit
a computer storage device, such as a compact disc, dvd disc, blu-ray disc, or usb drive, or other tangible device for copying of any
audio or video recording that is part of the administrative record.
[22.600.1.27 NMAC
- N, 2/1/2018]
22.600.1.28 HEARINGS
FOR OTHER STATE AGENCIES: From time to time, the administrative
hearings office may enter into agreements with other state agencies to provide
hearing officers for the conduct of administrative hearings involving that
agency. Those hearings shall be
conducted independent of the supervision and direction of the other state
agency. The statutes, rules, and case
law governing the conduct of those hearings before other agencies shall apply
to those cases heard by agreement, except that the hearing officer shall still
be bound by the code of conduct for administrative hearings contained in this
chapter, 22.600.2 NMAC.
[22.600.1.28 NMAC
- N, 2/1/2018]
HISTORY
of 22.600.1 NMAC: [RESERVED]