NAHO 2014 ANNUAL PROFESSIONAL DEVELOPMENT CONFERENCE

CHARLESTON, SOUTH CAROLINA

A Hearing Official’s “How To” on Creating and Improving

your In-House Legal Research

Database

PANEL

Janice Deshais, Hearing Officer Connecticut Department of Energy and Envtl

Protection

Eric Moody, Hearing Officer Idaho Department of Transportation

Joseph Rubenstein, Administrative Law Judge Minnesota Department of Human Services

PANEL

Janice Deshais, Hearing Officer Connecticut Department of Energy and Envtl Protection

Eric Moody, Hearing Officer Idaho Department of Transportation

Joseph Rubenstein, Administrative Law Judge Minnesota Department of Human Services

Linda Snow, Service Improvement Programs Coordinator Texas Health and Human Services Commission

1.COMPENDIUM OF RULINGS AND DECISIONS OF AGENCY HEARING OFFICERS AND

ALJS.

2.DATABASE THAT STORES APPELLATE COURT CASE LAW FROM YOUR STATES THAT IS

PERTINENT TO THE WORK OF YOUR AGENCY.  

In-House Databases

CONNNECTICUT

Connecticut Department of Energy and Environmental Protection – 4 1/2 hearing officers

1999 No computers! No research capabilities or record-keeping No efficient, effective way to research previous final decisions

for organization ... Except for “guru” method Nothing to use to ensure consistency, precedent in decisions,

rulings on motions hearing officers made pre-hearing, during hearing and post-hearing.

Implemented standard forms, etc. and “3 x 5 Card Shuffle”

Y2K – “Let’s Get Technical”

Problems

Organization

Consistency Precedent - Prior decisions and rulings, caselaw Efficiency – Avoid Reinventing the Wheel!

Solutions

Decision ListRuling List Connecticut Case Index – by subject “Research and Writing” file

“Decision List”

Chronological file of Proposed and Final Decisions (“Reader File”)

• Numbered• Chart: Number/Case ID/Dates of Decisions

361a362 Drake Petroleum – AOWSUST 11-001 FD 06/06/12363 King, Charles and Woods-King, Cathleen PFD 06/21/12363a FD 07/25/12364 Lonergan, Brian and Melissa (Cease & Desist Order) FD 06/28/12365 Vorlon Holding, LLC FD 03/21/13366366a

Phoenix Soil, LLC PFDFD

06/26/1306/27/13

367 DECD – FMC Exemption – Stamford FD 08/01/13368 General Permit – Construction Stormwater PFD 08/15/13368a FD 08/21/13369 Mullane, David (BUI) FD 09/03/13370 Waterfront Magee PFD 09/30/13370a FD 10/18/13371 Alison Pastorfield Associates PFD 11/04/13371a FD 11/21/13372 Town of Guilford/Old Quarry Road FD 11/05/13373 UCONN-N. Hillside Rd. Extension PFD 11/22/13373a FD 11/27/13374 City of Norwalk – NPDES Renewal PFD 02/04/14374a FD 02/06/14375 Heritage-Crystal Clean, LLC FD 02/14/14376 Shanahan FD on Remand FD 05/08/14377 E-Square Investments, LLC FD 05/12/14378 McLeod (Wallacks Drive) PFD 05/15/14378a FD 06/05/14379 Harvey (Wallacks Drive) PFD 06/17/14379a FD380 69 Padanaram Rd. FD 06/30/14381 62 Robert St. Ext. (Screen) FD 07/17/14382 Recycling, Inc. PFD 08/25/14382a383 Simeone, Carol and Albino (22a-452a(e)) FD 09/08/14

“Ruling List”

Rulings Folder by Subject of Motion (shared drive, alpha order) Examples

• Hearing Requests/Denials• Intervention/Party• Intervention/Non-Party

Rulings Sub-Folders by Basis for Ruling (alpha order)• Jurisdiction • Untimely• Statutory

CT Case Index

Case Index – shared drive By Subject

Administrative Review Evidence

Cross examination Hearsay Privileges

Jurisdiction Statutes: 22a -19, 22a-370 Witness Credibility

EVIDENCEGeneralA commission may rely on material non-record facts that are within its special knowledge and experience or that it has learned through investigation, but in doing so it must allow an adversely affected party an opportunity to rebut at an appropriate stage in the proceedings. Feinson v. Conservation Commission, 180 Conn. 421, 428‑29 (1980); River Bend Associates v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 80 (2004).An agency may rely on its own expertise in evaluating evidence within the area of its expertise. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593 (1991).An agency is not required to use in any particular fashion the evidence presented to it so long as the hearing is fundamentally fair. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593 (1991).Evidence of general environmental impacts, mere speculation or general concerns do not qualify as substantial evidence. River Bend Associates v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 71 (2004). See also Estate of Casimir Machowski v Inland Wetlands Commission, 137 Conn. App. 830, 836 (2012). In Connecticut, administrative tribunals aren’t strictly bound by the rules of evidence… and may consider evidence which would normally be incompetent in judicial proceedings. Even hearsay evidence, replete with its inherent untrustworthiness may be considered in an administrative hearing. Salmon v. Department of Health & Addiction Services, 259 Conn. 288, 318 (2002) Agencies may receive any oral or documentary evidence that is not irrelevant, immaterial or unduly repetitious. The degree of reliability required of evidence offered before the administrative agency is lower than that deemed necessary for the same evidence to be received in court. Salmon v. Department of Health & Addiction Services, 259 Conn. 288, 319 (2002).

Cross ExaminationA question on cross-examination is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the witness’ direct testimony. Dubreuil v. Witt, 65 Conn. App. 35, 42 (2001).

Research and Writing File

Court Manual of Style (“red book”)DEEP Rules of Practice (regulations) “Primers” (e.g., Water Rights, Coastal Law) Articles on WritingNotes on common questions and issuesGlossariesCommon “Rules” of Evidence Common phrases, introductions, conclusionsHearing Officer’s Handbook (hearing

procedure)

www.ct.gov/deep/adjudications

Conn. General Statutes sec. 4-180a – “…each agency shall index, by name and subject, all… final decisions … and make them available for public inspection and copying….”

PAST – Our Decision List included name and subject

NOW – WEBSITE www.ct.gov/deep/adjudications

Keeping Current

Decision List (shared drive, Website) Proposed and Final Decisions – HOs put on shared drive On Website – HOs send to webmaster

Ruling List (shared drive) Added if new, different, or “difficult” – by HO

CT Case Index HOs – If Crt decision good re-statement of law, new law

or unique – add to Index (bold to next revision date)

Research and Writing File Revise as new ideas, information, issues

E-Filing – Coming Soon!

E-Govt Initiative Design – 2013Development – 2013-2014Testing – 2014-early 2015Implementation – Fall 2015

Electronic filing – motions, rulings, hearing record (comments)

Calendar – pre-registration of public speakers, comments

Electronic record

MEANWHILE

BACK IN IDAHO

ADMINISTRATIVE LICENSE SUSPENSION

HEARINGS ARE BY PHONE CREDIBILITY ISSUES

EVIDENCE IS BASED UPON BURDEN OF PROOF DRIVER MUST PROVIDE PROOF BY THE

PREPONDERANCE OF THE EVIDENCE NO LEGAL CAUSE FOR STOP NOT IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE TEST RESULTS NOT IN VIOLATION OF IDAHO CODE TEST NOT PROPERLY PERFORMED PURSUANT TO IDAHO

CODE, RULES AND REGULATIONS NOT INFORMED OF THE CONSEQUENCES OF SUBMITTING

OR FAILING AN EVIDENTIARY TEST

ATTORNEY EVIDENCE

ATTORNEY REQUESTS SUBPOENA FOR EVIDENCE

HEARING OFFICER REVIEWS THE REQUEST DENIES IRRELEVANT EVIDENCE ISSUES SUBPOENA FOR RELEVANT EVIDENCE

ATTORNEY SERVES SUBPOENA EVIDENCE IS SENT TO THE DEPARTMENT DEPARTMENT PROVIDES COPY OF EVIDENCE TO

ATTORNEY

ATTORNEY EVIDENCE

WHAT THE ATTORNEY WANTS AUDIO/VIDEO INSTRUMENT, MAINTENANCE SOLUTION LOGS FOR

BREATH TESTING INSTRUMENT POLICE OFFICER’S CERTIFICATION TRAINING RECORDS DISPATCH LOGS SUBPOENA OF OFFICER(S) STATE EXPERT AND

WITNESS

WHAT THE ATTORNEY DOES NOT GET OFFICER CERTIFICATION (ON AFFIDAVIT) OFFICER TRAINING RECORDS

ATTORNEY EVIDENCE

RADIO DISPATCH LOG (DEPENDING ON CIRCUMSTANCES)

EVIDENCE AVAILABLE ON WEBSITES

WHAT THE ATTORNEY GETS AUDIO/VIDEO INSTRUMENT, MAINTENANCE AND SOLUTION

LOGS 30 DAYS FROM WHEN THE TEST WAS CONDUCTED

ALL NARRATIVE REPORTS SUBPOENA FOR OFFICER(S) EXPERT AND

WITNESS

STATE EVIDENCE

STATE’S RECORD DOCUMENTS TO SUPPORT THE DRIVER’S

SUSPENSION LEGAL CAUSE TO STOP ACTUAL PHYSICAL CONTROL OF VEHICLE TEST RESULTS TEST PROCEDURE ADVISEMENT

IF RECORD IS DEFICIENT, STATE MAY REQUEST POLICE AGENCY TO RE-SUBMIT EVIDENCE SUBPOENA FOR ADDITIONAL EVIDENCE I.E. DRE REPORT NEEDS TO BE TIMELY SUBMITTED

EVIDENCE DURING HEARING

TESTIMONY DRIVER WITNESSES POLICE OFFICER(S)

EXPERT WITNESS TESTIMONY STATE OR OTHER EXPERT SUBPOENAED TO

APPEAR DRIVER PROVIDED EXPERT WITNESS

EVIDENCE AFTER HEARING

COLLEAGUES HAD SIMILAR ARGUMENT HOW COLLEAGUE RESPONDS TO SIMILAR ISSUES

AGENCY DOCUMENTS/PROCEDURES/RULES/ WEBSITES

OUTSIDE AGENCY DOCUMENTS/PROCEDURES/ RULES/WEBSITES

RESOURCES (IDAHO) STATE DEPUTY ATTORNEY GENERAL TRAFFIC SAFETY RESOURCE PROSECUTOR

EVIDENCE AFTER HEARING

CASE LAW WEBSITES STATE AND FEDERAL COURT OPINION SITES IN HOUSE CASE LAW COLLEAGUE’S CASE LAW

ATTORNEY HAVE ATTORNEY PROVIDE SUPPORTING CASE LAW

OR DOCUMENTS TO SUPPORT ARGUMENT

DELIVERY

HEARING PACKET TIME AND DATE OF HEARING EMAILED/MAILED COPY EVIDENCE IN THE RECORD EMAILED/MAILED

SUBPOENAS SUBPOENAS ARE FAXED/ EMAILED TO ATTORNEY ATTORNEY SERVES THE SUBPOENA SUBPOENAED EVIDENCE RECEIVED BY

DEPARTMENT DEPARTMENT EMAILS, MAILS, OR FAXES EVIDENCE

HEARING OFFICER’S DECISION EMAILED TO ATTORNEY AND POLICE OFFICER(S)