Section 98-02-03-03 - Hearing procedureThe hearing is directed to receiving factual evidence and expert opinion testimony related to issues in dispute. Argument will not be received in evidence; rather, it must be presented in statements, memoranda, or briefs, as determined by the hearing officer. Brief opening statements, limited to stating the party's position and what it intends to prove, may be allowed, in the hearing officer's discretion. Unless the hearing officer determines otherwise, the hearing must proceed and be conducted in substantially the following manner:
1. Testimony must be preserved by electronic recording unless the agency elects to use a court reporter or stenographer. If a request is made prior to the hearing, the agency may allow a party to preserve testimony by court reporter. The requesting party shall agree to pay for the court reporter and the cost of transcript preparation. The requesting party shall make all the necessary arrangements for the court reporter. The requesting party may not delay the proceeding by use of the court reporter or in the preparation of the transcript. 2. The hearing must be conducted in the English language. The proponent of any testimony to be offered by a witness who does not speak the English language proficiently shall provide an interpreter, approved by the hearing officer, proficient in the English language and the language in which the witness shall testify. The cost of such interpreter must be paid by the party providing the interpreter, unless the proponent of such testimony identifies a prevailing requirement that the agency provide an interpreter. 3. When the agency is a party, the hearing officer may require that the agency proceed first, by making an opening statement explaining the action taken, describing the evidence upon which that action was based, and identifying the applicable statutes, rules or regulations, or policy interpretations upon which the action was based. 4. All parties may present evidence and argument with respect to the issues, and cross-examine witnesses. Cross-examination of witnesses will ordinarily follow direct examination, but the sequence may be regulated by the hearing officer. 5. The party with the burden of proof shall begin the presentation of the evidence, followed by the other parties in a sequence determined by the hearing officer. In all cases the burden of presenting evidence to support a fact or position rests with the proponent of the fact or position. 6. When all parties and witnesses have been heard, opportunity must be offered to present final argument, in a sequence determined by the hearing officer. Final argument may be allowed in the form of memoranda or briefs, or oral argument, in the discretion of the hearing officer. 7. The record of the hearing must be closed upon receipt of the final memoranda or briefs, transcript, if any, or late-filed exhibits requested by the hearing officer, subject to the authority for an administrative agency to consider additional information or evidence not presented at the hearing, as provided by North Dakota Century Code section 28-32-25. N.D. Admin Code 98-02-03-03
Effective January 1, 1992; amended effective August 1, 2004.General Authority: NDCC 54-57-05
Law Implemented: NDCC 28-32-25, 28-32-34, 28-32-35, 54-57-04