Massachusetts Regulations § 950 CMR 59.05 Adjudicatory Hearing
Regulation Text
(1)
Hearings and Conferences
.
(a)
Pre-hearing Conference
.
1.
The Commission or presiding officer may upon its own initiative or upon the application of any party, call upon the parties to appear for a conference to consider:
a.
the simplification or clarification of the issues;
b.
the possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreement which will avoid unnecessary proof;
c.
the limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;
d.
the possibility of agreement disposing of all or any of the issues in dispute; and
e.
such other matters as may aid in the disposition of the adjudicatory proceeding.
2.
Those matters agreed upon by the parties shall be electronically recorded in the presence of the parties and/or reduced to writing and shall be signed by the parties, and shall thereafter constitute part of the record.
3.
The scheduling of a pre-hearing conference shall be solely within the discretion of the Commission or presiding officer.
(b)
Submission Without a Hearing
. Any party may elect to waive a hearing and to submit its case upon the record. Submission of a case without a hearing does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses.
(c)
Hearings, When and Where Held
. Hearings will be held at a location designated by the Commission. Any party may, by motion, request that hearing be held at some place other than that designated, due to disability or infirmity of any party or witness, or where justice and equity would best be served.
Upon motion of any party and upon good cause shown, the Commission or presiding officer may in its discretion advance a case for hearing.
(d)
Conduct of Hearings
.
1.
General
. Hearings shall be conducted in a manner consistent with the standards of decorum commonly observed in any court but, at the discretion of the Commission, may be less formal as may be reasonable and appropriate under particular circumstances.
2.
Decorum
. All parties, authorized representatives, witnesses and other persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any court. Where such decorum is not observed, the Commission or presiding officer may take appropriate action.
3.
Duties of Presiding Officer
. The presiding officer shall conduct the hearing, and, in consultation with Commission members, make all decisions regarding admission or exclusion of evidence or any other procedural matters. The majority of the Commission may overrule any decision made by the presiding officer regarding these matters. The presiding officer shall administer an oath or affirmation to all witnesses.
4.
Participation
. One or more commissioners may conduct the hearing.
(e)
Order of Proceedings
.
1.
Opening
. Except as otherwise required by law, it shall be the usual practice that in proceedings initiated by the objection, the objector shall open. In hearings resulting from investigations or Orders to Show Cause, the party or Commission conducting the investigation or the Commission issuing the Order to Show Cause shall open.
2.
Discretion of Commission/Presiding Officer
. Where evidence is peculiarly within the knowledge of one party, or in cases in which adjudicatory proceedings have been consolidated, or where there are multiple parties, the presiding officer or Commission may direct who shall open and shall designate the order of presentation.
(f)
Presentation
.
1.
Rights of Parties
. All Parties shall have the right to present evidence, cross-examine, make objections, bring motions and make oral arguments.
a.
Cross-examination shall occur immediately after any witness' testimony has been received.
b.
Whenever appropriate, the presiding officer or Commission shall permit redirect and recross.
2.
First Presentation
. The party opening the hearing shall have the right to present his position through evidence and testimony first.
3.
Second Presentation
. The party taking the position contrary to that of the party opening shall have the right to present his position upon completion of the opening party's case.
(g)
Witnesses and Evidence
.
1.
Oath
. A witness' testimony shall be under oath or affirmation.
2.
Evidence
. Unless otherwise provided by any law, the Commission need not observe the rules of evidence observed by courts but shall observe the rules of privilege recognized by law.
a.
Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.
b.
Weight to be given evidence presented will be within the discretion of the Commission.
c.
Based on its experience that in general it is not the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, the Commission will not admit into evidence affidavits bearing directly on an ultimate fact in dispute, such as a voter's affidavit that the voter did or did not actually sign a nomination paper or petition, except upon motion for good cause shown.
3.
Offer of Proof
. An offer of proof made in connection with an objection taken to a ruling of the presiding officer rejecting or excluding proffered testimony shall consist of a statement of the substance of the evidence which the party contends would be adduced by such testimony; and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.
(h)
Evidence Included
. All evidence (including any records, investigative reports, documents, and stipulations) which is to be relied upon in making a decision must be offered and made a part of the record. Documentary evidence may be received in evidence in the form of copies or excerpts, or by incorporation by reference.
(i)
Administrative Notice
. The Commission or presiding officer may take notice of any factwhich may be judicially noticed by the courts of the Commonwealth or of general technical or scientific facts within the Commission's or presiding officer's specialized knowledge only if the parties are notified of the material so noticed and are given an opportunity to contest the facts so noticed.
(j)
Signatures
. The Commission may review and determine genuineness of signatures based on examinations of reliable exemplars provided.
(k)
Subpoenas
. In conducting adjudicatory proceedings, the Commission or presiding officer may issue, vacate, modify and endorse subpoenas, require the attendance and testimony of witnesses and/or the production of documents or other evidence in accordance with the following provisions:
1.
Issuance
. A party may make written application to the Commission or presiding officer, which may issue the subpoena requested in the name of the Commission.
a.
However issued, every subpoena shall show on its face the name and address of the requesting party.
b.
Notice shall not be required for issuance of a subpoena.
c.
The Commission may prescribe the form of subpoena but, insofar as practicable, such form shall adhere to the form used in civil cases before the courts.
2.
Motion to Vacate or Modify
. Any person to whom a subpoena is directed may, within a reasonable period, file in writing a motion that the subpoena be vacated or modified.
a.
The Commission or presiding officer shall give prompt notice to the party who requested issuance of the subpoena.
b.
The Commission or presiding officer may grant such petition in whole, or in part, upon a finding that the testimony, or the evidence, whose production is requested, does not relate with reasonable directness to any matter in question or upon a finding that a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive, or has not been issued a reasonable period in advance of the time when the evidence is requested.
3.
Costs
. Witnesses summoned by the Commission or presiding officer shall be paid the same fees for attendance and travel as in civil cases before the courts. The requesting party shall pay all costs involved with the subpoena, including fees for attendance to travel.
(l)
Transcript of Proceedings
.
1.
Recording and Transcripts
. Testimony and argument at the hearing shall be recorded by stenograph. Transcripts of the proceedings shall be supplied to any party, upon request, at its own expense. Any party, upon motion, may order a stenographer to transcribe the proceedings, at his own expense. In such event, a stenographic record shall be provided to the Commission or presiding officer at no expense to the Commission, and upon such other terms as the Commission or presiding officer shall order.
2.
Correction of Transcript
. Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing.
a.
Transcript corrections, agreed to by opposing parties, may be incorporated into the record, if and when approved by the presiding officer, at any time during the hearing, or after the close of evidence, but not more than ten days or such other time as shall be allowed by the presiding officer from the date of receipt of the transcript.
b.
The Commission or presiding officer may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of the proceeding.
(m)
Briefs
. Any briefs must be filed before the close of the hearing, unless the Commission orders otherwise.
(n)
Settling the Record
.
1.
Contents of Record
. The record of the proceeding may consist of the following items: pleadings, pre-hearing conference memoranda, digital and electronic recordings, orders, briefs, memoranda, answers to interrogatories and depositions, transcripts, exhibits, and other papers or documents which the Commission or presiding officer has specifically designated be made a part of the record. The record shall at all reasonable times be available for inspection by the parties.
2.
Evidence After Completion
. No evidence shall be admitted after completion of a hearing or after a case submitted on the record, unless otherwise ordered by the presiding officer.
3.
Weight of Evidence
. The weight to be attached to any evidence in the record will rest within the sound discretion of the Commission or presiding officer. The Commission or presiding officer may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the adjudicatory proceeding.
4.
Exceptions
. Formal exceptions to ruling on evidence and procedure are unnecessary. It is sufficient that a party, at the time that ruling is made or sought, makes known its objection to such action and the grounds, therefor, provided that, if a party has no opportunity to object to a ruling at the time it is made or to request a particular ruling at an appropriate time, such party, within one weekday of notification of action taken or refused, shall state his objection and his grounds therefor.
History
Adopted by
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