211 CMR 79.12 - Conduct of the Hearing

Current through Register 1466, April 1, 2022

(1) Ex Parte Communications. From the initiation of a hearing subject to 211 CMR 79.00 until the rendering of a final decision, no person who is not employed by the Division shall communicate ex parte with the Commissioner or Presiding Officers with respect to the substance of that proceeding; provided that a request for a report concerning the status of a proceeding or an inquiry as to the Division's practice or procedure shall not be prohibited. If the Commissioner or Presiding Officer determines that a Party or his agent has violated 211 CMR 79.12(1), he or she may exclude the Party from the hearing or decide against the Party with prejudice. If the Presiding Officer determines that a person not a Party has violated 211 CMR 79.12(1), he or she may exclude that person from the hearing.
(2) Motions. The Presiding Officer may make rulings regarding the admissibility of evidence or any other matter which may arise during a hearing. Any Party making application to the Presiding Officer for a ruling on any issue other than the admissibility of evidence shall do so by motion which shall state the ruling sought and the grounds therefor. The Presiding Officer may require that a motion be presented in writing. The Presiding Officer may, in his or her discretion, hear oral argument on a motion prior to making a decision thereon.
(3) 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.
(4) Official Notice. The Presiding Officer may take official notice of any fact which may be judicially noticed by the courts of Massachusetts, and in addition, may take official notice of general, technical or scientific facts within the Presiding Officer's specialized knowledge or information contained in documents filed with the Division; provided that the Presiding Officer shall notify all Parties of the material so noticed, and provided further that any Party, upon timely request, shall be afforded an opportunity to contest the facts so noticed.
(5) Evidence. The Presiding Officer need not observe the rules of evidence observed by the courts of the United States or of Massachusetts, 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 testimony or evidence which is determined to be unduly repetitious or to have an unreasonably dilatory effect upon the hearing process. All evidence, including any documents in the possession of the Division of which the Presiding Officer desires to rely on in making a decision, shall be offered and made a part of the record in the hearing.
(6) Cross-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.
(7) Offers of Proof. Any offer of proof made in conjunction with an objection to a ruling by the Presiding Officer rejecting or excluding evidence shall consist of a statement of the substance of the evidence which the Party making such offer contends would be adduced by the testimony, and if the rejected or excluded evidence consists of documents or of references to documents, a copy of such documents shall be marked for identification and shall constitute the offer of proof.
(8) Oral Argument. The Presiding Officer may, either on the officer's own motion or on the motion of any Party, allow and designate time for the presentation of opening and closing arguments.
(9) Transcripts. All proceedings in a hearing shall be officially recorded and transcribed by a reporter approved by the Division. The Filer shall pay the cost of the reporter's fees, together with the cost of providing the Division with a copy of the transcript. Other entities may obtain copies of the transcript from the reporter at cost.
(10) Briefs. At the Presiding Officer's discretion, a Party may submit a brief within such time as the Presiding Officer shall specify. A Party which desires additional time in which to file a brief may request an extension by written motion within the period specified. Each Party who files a brief shall submit two copies to the Division, except where a different number is permitted or directed by the Presiding Officer, and shall serve one copy on all other Parties.
(11) Burden of Proof. In any hearing conducted under M.G.L. c. 175E, the burden shall be on the Filer to justify that the Rate Filing complies with M.G.L. c. 175E; M.G.L. c. 175A and 211 CMR 79.00.


211 CMR 79.12
Amended by Mass Register Issue 1355, eff. 12/29/2017. Amended by Mass Register Issue 1365, eff. 12/29/2017.

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