211 CMR 41.19 - Conduct of Proceedings

Current through Register 1466, April 1, 2022

(1) Presiding Officer. The Presiding Officer conducts the Proceeding and makes all decisions on the admission or exclusion of evidence and other procedural matters that arise during the Proceeding. The Presiding Officer may issue orders he or she finds proper, expedient or necessary to enforce and administer the provisions of 211 CMR 41.00, M.G.L. c. 176M and M.G.L. c. 30A. The Presiding Officer administers oaths and affirmations, schedules hearings and may order the consolidation of related Proceedings. The Presiding Officer may impose sanctions on a Party that does not comply with his or her orders, including entering orders for decision on one or more issues, limiting the introduction of evidence or a Party's participation in the Proceeding, and addressing other matters he or she deems appropriate. The Presiding Officer may shorten or terminate any phase of the proceeding for a Party's failure, without good cause, to comply with the schedule or to proceed with expedition. At any time during the Proceeding, the Presiding Officer may extend or shorten a time period at the request of a Party or may do so on his or her own if he or she determines that an extended or shortened time period is appropriate.
(2) Ex Parte Communications. From the start of the Proceeding until the rendering of a final decision no person who is not employed by the Division may communicate exparte with the Presiding Officer, the Commissioner, or any employee of the Division involved in the decision process for the proceeding regarding the merits of that Proceeding. An inquiry about the status of a Proceeding is not considered an exparte communication. If the Presiding Officer determines that a Party has violated 211 CMR 41.19(2), he or she may impose appropriate sanctions against that Party, which may include excluding the Party from the Proceeding or deciding against it with prejudice. If the Presiding Officer determines that a person not a Party has violated 211 CMR 41.19(2), he or she may impose appropriate sanctions against that person, which may include excluding that person from the Proceeding.
(3) Examination and Rebuttal Evidence. A Party shall have the right to call and examine witnesses, to cross-examine witnesses, and to submit affirmative and rebuttal evidence.
(4) Rebuttal and Surrebuttal Filings. A Party seeking to submit additional evidence to rebut an affirmative fact which another Party has sought to prove may move to submit rebuttal or surrebuttal evidence. A Party seeking to introduce rebuttal or surrebuttal evidence shall move for leave to do so as soon as practical, and shall include in its motion the subject of the proposed evidence, the necessity for further testimony at this stage of the Proceeding and the identity and availability of witnesses offering the testimony. The Presiding Officer may grant or deny the motion, and may order such evidence to be submitted orally or in writing.
(5) Motions. A Party requesting a ruling shall make a motion which states the ruling sought and the grounds for the request. The Presiding Officer may require that a motion be presented in writing. A Party opposing a written motion shall file an opposition no later than two days after the filing and service of the motion. The Presiding Officer may hear oral argument on a motion.
(6) Objections to Rulings. At the time that the Presiding Officer makes a ruling, any Party shall make known any objection to the ruling and his grounds, provided that if a Party has no opportunity to object to a ruling at the time it is made, such Party may, within three days of receipt of the ruling, state in writing any objection and the grounds therefore.
(7) Official Notice. The Presiding Officer may take official notice of a fact which may be judicially noticed by the Massachusetts courts and may take official notice of general, technical or scientific facts within his or her specialized knowledge or experience. The Presiding Officer shall notify all parties of the material so noticed and shall permit a Party, upon timely request, to contest the facts noticed. The Presiding Officer may use his or her technical experience, technical competence, and specialized knowledge in the evaluation of the evidence presented.
(8) Evidence. The Presiding Officer need not observe the rules of evidence observed by the Massachusetts or United States courts, but shall observe the rules of privilege recognized by Massachusetts law. 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. The Presiding Officer may exclude evidence which he or she determines to be unduly repetitious or likely to delay the Proceeding unnecessarily, or which he or she determines should have been submitted earlier in the Proceeding. All evidence on which the Presiding Officer's decision is based, including records and documents in the Division's possession, will be made a part of the record, and no other factual information may be considered.
(9) Control of Evidence. The Presiding Officer may question witnesses at any time in the course of their testimony. At any stage of the Proceeding, the Presiding Officer may recall witnesses for further examination, call for further written evidence on an issue, and require that evidence be presented by any Party. The Presiding Officer may limit, strike or terminate irrelevant, immaterial or repetitious evidence. The Presiding Officer may, in his or her discretion and for good cause shown, permit a Party to introduce exhibits and raise issues not included in its Rate Filing or Responsive Filing. If, despite an order from the Presiding Officer, a witness fails to be present for his or her cross-examination or unreasonably obstructs cross-examination, the Presiding Officer may find the witness to be unavailable. If the Presiding Officer finds a witness to be unavailable, he or she may order all previous testimony or evidence for which the witness is responsible stricken from the record unless the Presiding Officer determines that no Party would be unduly prejudiced by its inclusion.
(10) Offers of Proof. A Party may make an offer of proof following a ruling by the Presiding Officer excluding proposed evidence. The offer of proof includes a statement of the substance of proposed oral testimony and copies of proffered documents. The Presiding Officer may require that offers of proof be made in writing.
(11) Stipulations. At any stage of the proceeding, the Parties may stipulate to a pertinent fact. If the Presiding Officer rejects a stipulation, he o r she shall so state on the record and, if appropriate, permit the parties to present evidence and argument on the issue.
(12) Oral Argument. The Presiding Officer may allow or require oral argument. In determining whether to allow oral argument, the Presiding Officer may consider matters including the complexity or importance of the issues, the necessity for clarification of issues, the public interest, and the availability of time.
(13) Conduct of Persons Present. All persons present at a Hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the Massachusetts courts. The Presiding Officer may issue orders appropriate to maintain order, including the exclusion of a disorderly person from the Hearing. If the person excluded is a Party or its representative, the Presiding Officer may decide against the Party with prejudice.
(14) Transcripts. The Carrier shall engage a qualified stenographer subject to the approval of the Presiding Officer to record and transcribe the Proceeding. The Carrier shall pay the cost of the stenographer's fees, and the cost of providing the Division with copies of the transcript in the quantity and format determined by the Presiding Officer, which may include an electronic copy, and of providing the State Rating Bureau and each Statutory Intervenor with one copy. Other Parties may obtain copies of the transcript from the stenographer at cost, unless the Presiding Officer determines that the Carrier should provide the transcript to that Party.
(15) Burden of Proof. In any hearing conducted in accordance with M.G.L. c. 176M and 211 CMR 41.00, the burden shall be on the Carrier to justify that the Rate Filing complies with M.G.L. c. 176M and 211 CMR 41.00.

Notes

211 CMR 41.19

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