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.
Notes
The following state regulations pages link to this page.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.