"New Developments "

by Cliff J. Vanell, Director Vol. 7 May 1998

Rules
From our earliest memories, our lives have been circumscribed by "the rules." We both prosper and chaff under them.

The Office of Administrative Hearings (OAH) places great emphasis on our contribution to "quality of life." The OAH hopes to provide greater predictability and guidance to all parties by making unified procedural rules of practice. To ensure that our proposed rules are consistent with that goal, the OAH has undergone an extensive pre-filing drafting (and redrafting) process inviting comment. The latest draft is included as a supplement to this newsletter. The OAH invites additional pre-filing informal comment until June 1, 1998 when formal rulemaking procedures will commence. Please contact the OAH either through its website, azoah.com, or by writing the OAH Director at 1700 W. Washington, Suite 602, Phoenix, Arizona 85007.

Interested parties may still comment during the subsequent formal rulemaking process.

New Legislation:
Legislation affecting OAH practice which has been transmitted to the Governor as of the publishing date of this newsletter is summarized below. Note that page numbers and sections refer to the House Engrossed bills.

SB 1034

Highlights: A.R.S. 41-1092 through 41-1092.09 Status: Pending Governor's signature Effective Date: 90 days from sine die (close of session), if signed.

• The record on appeal may be limited to certain portions by agreement of the parties. Sec 6, page 6; 12-909(B);

• AHCCCS appeals section to transfer to the OAH effective July 1, 1999. Sec 117, page 120;

• "Appealable Agency Action" excludes interim orders by self-supporting regulatory boards. Sec 58, page 51; 41-1092(3);

• n "Self-supporting regulatory boards" defined. Sec 58, page 52; 41-1092(7);

• OAH sections to provide technical and subject matter training. Sec 59, page 53; 41-1092.01 (C)(7);

• OAH director to report annually by December 1, the number and dispositions of motions filed to disqualify administrative law judges during the prior fiscal year. Sec 59, page 54; 41-1092.01 (C)(9)(b);

• OAH director to report annually by December 1, the number and type of violations of new investigatory rules during the prior fiscal year. Sec 59, page 54; 41-1092.01 (C)(9)(c); see also Sec 22, page 26; 41-1009(A) and (B);

• General procedural rules now apply to "self-supporting regulatory boards," previously exempted from various notice and post-hearing requirements. Sec 60, page 56; 41-1092.02 (D). Exceptions remain: rehearing prior to judicial appeal; general time limit to act on decision of administrative law judge modified.

• Hearings shall be expedited upon a showing of extraordinary circumstances or the possibility of irreparable harm. Any party may file a motion to expedite. AHCCCS hearings pursuant to federal law expressly provided for. Sec 61, page 57; 41-1092.05 (E);

• Prehearing conferences explicitly provided for. Sec 61, page 57; 41-1092.05 (F) ;

• Non-peremptory motion to the Director of the OAH for disqualification of an administrative law judge on the grounds of bias, prejudice, personal interest, or lack of technical expertise necessary for a hearing. Sec 62, page 57; 41-1092.07(A);

• Certain general procedures found in A.R.S. 41-1062 dealing with the conducting of hearings are now explicitly provided for in hearings conducted pursuant to 41-1092 et seq.: informality of the proceedings; the right of all parties to present evidence and respond; the validity of copies of documents; judicial notice of facts; the power of an administrative law judge to order depositions in cases where a witness cannot attend; the power to issue subpoenas for the production of documents; findings of fact to be based solely on the evidence and judicially noticed facts; administrative law judge decisions to include findings of fact and conclusions of law separately stated. Sec 62, page 57; 41-1092.07(D)-(F);

• The administrative law judge decision is final within thirty days of its transmission to the agency, executive director, board or commission unless the OAH has received notice of the action of the agency, board or commission accepting, rejecting or modifying the decision. In the case of boards and commission meeting monthly or less frequently, the board or commission will have until 5 days after its next meeting to act if it receives the administrative law judge decision at least 30 days before the meeting. Presumably, if transmitted later, the board or commission must act within 5 days of the second meeting following transmission. For the purpose of this section, transmission is upon personal delivery or five days after mailing by the OAH. Sec 63, page 59; 41-1092.08(D) and (E);

• A motion for rehearing is required prior to judicial review in cases involving self-supporting regulatory boards. Sec 64, page 61; 41-1092.09(B);

• The requirement that motions for rehearing be ruled upon within fifteen days of service has been modified to allow time for a response. Sec 64, page 61; 41-1092.09(D);

• Self-incrimination not grounds to refuse to attend or testify. Sec 66, page 61; 41-1092.10(D);

• Special rules created for license renewals, denial and modifications. Sec 66, page 62; 41-1092.11(A);

• Summary suspension permitted pending revocation if emergency action imperatively required; proceedings must be promptly instituted and determined. Sec 66, page 62; 41-1092.11 (B).

SB 1348

Highlights: A.R.S. 41-1092.12 Status: Pending Governor's signature Effective Date: 90 days from sine die (close of session), if signed.

• A decision, inspection, investigation or entry of private property by the Department of Environmental Quality (ADEQ) which is arbitrary, capricious or not in accordance with law, is an appealable agency action if: (1) the party notifies the ADEQ director within 10 days of the action; (2) the ADEQ continues the action more than 10 days after notice; (3) the action is not otherwise precluded from the definition of appealable agency action; and (4) an judicial or administrative remedy is not otherwise available. Sec 1, page 1-2; 41-1092.12 (A)-(B); (E);

• The prevailing appellant shall be paid reasonable costs and fees; the administrative law judge may order payment of fees and costs to the ADEQ for frivolous appeals. Sec 1, pages 1-2; 41-1092.12 (C) and (D);

• By October 1, 2000, the OAH must report the dispositions and effectiveness of these actions. Sec 2, page 2.