30 Miss. Code. R. 1601-5.7 - Pre-Hearing Procedures

A. Continuances.

Hearings shall be held before the Real Estate Commissioners Hearing Panel at the time and place designated in the Notice of Hearing unless the Commission grants a continuance.

(a) A request for a continuance must be filed with the Commission at least ten (10) days prior to the scheduled hearing or upon a showing of good cause at any time prior to the hearing.

(b) No more than two (2) continuances of the hearing will be granted without the approval of the Commission, Commission Chair, or Hearing Officer, for good cause.

(c) A request for continuance, including one to retain counsel, submitted less than five (5) days prior to the hearing may be made only under unusual or extenuating circumstances. In such event, a request for a continuance shall be granted only if the other parties will not be prejudiced thereby.

(d) Absent unusual or extenuating circumstances, if any continuance of an administrative hearing is requested or necessitated by Respondent/Respondent's counsel after the commencement of the hearing, any costs incurred by the Commission because of the continuance may be taxed against Respondent as part of any final Order of the Commission. Determination of the sufficiency of unusual or extenuating circumstances necessitating such continuance shall be in the sole discretion of the Hearing Officer.

B. Subpoenas.

1) For disciplinary/administrative hearings, the Commission acting by and through its legal staff may subpoena necessary persons and papers on its own behalf and on behalf of a Respondent.

2) Before the Commission will issue any subpoena on behalf of a Respondent, the Respondent shall file with the Commission a written request for the issuance of said subpoenas, identifying with certainty the identity and address of the persons to be subpoenaed and/or a concise description of the records to be subpoenaed with the identity and address of the custodian of said records.

3) All requests for the issuance of subpoenas shall be filed with the Commission sufficiently in advance of a scheduled hearing date, and no later than fourteen (14) days before the scheduled hearing date. The Commission shall not be responsible for the timely receipt of said subpoenas issued after the deadline.

4) All subpoenas issued by the Commission either on its own behalf or on behalf of a Respondent shall be effected by certified mail or by personal delivery.

5) Subpoenas issued by the Commission shall be returnable within ten (10) days to either the Commission or other location as specified in the subpoena.

6) The costs for service of subpoenas issued by the Commission, and witness fees and mileage as allowed by law may be taxed as part of the costs of the administrative hearing in the final Order of the Commission.

C. Disclosure.

1) Formal discovery is not provided for in proceedings before the Commission.

2) No depositions shall be taken in preparation for matters to be heard in a Commission administrative or disciplinary hearing, except, however, by agreement of the parties and upon good cause shown, where hearing depositions may be taken of licensees or other necessary witnesses who will be unavailable for a hearing previously scheduled.

3) Prior to an administrative or disciplinary hearing, licensees and/or counsel may, upon request, inspect that pertinent evidentiary material contained in Commission investigative files that is proposed to be offered at the Formal Hearing.

4) At least ten (10) days prior to hearing. Complaint Counsel of the Commission shall disclose and permit Respondent or his or her counsel to inspect, copy, or photograph the following information and material which is in the possession, custody, or control of the Commission or the existence of which is known to the Complaint Counsel:

(a) Names and addresses of all witnesses proposed to be called in the Commission's case in chief, together with a copy of the contents of any statement, written, recorded, or otherwise preserved, of each such witness.

(b) Copies of any written or recorded statement of Respondent and the substance of any oral statement made by Respondent.

(c) Copies of any criminal record of Respondent, if proposed to be introduced as evidence at the hearing.

(d) Any written reports or statements of experts, if proposed to be offered as evidence in connection with the case.

(e) All records, documents, physical evidence, or photographs which may be offered as evidence.

5) The Commission shall charge a Respondent a reasonable fee, not to exceed fifty cents ($0.50) per page, payable in advance of delivery of copied documents. Payment must be made by cashier's check, money order, or Commission accepted electronic method. Copies printed on both sides (front and back) shall be considered two (2) pages for copy charge purposes.

6) The Commission may deny disclosure authorized by these rules in accordance with applicable statutory and regulatory provisions providing exemptions, including but not limited to: Miss. Code Ann. § 25-61-12; and Miss. Code Ann. § 73-52-1.

7) Upon written request by Complaint Counsel, Respondent or his or her counsel shall promptly disclose and permit Complaint Counsel to inspect, copy, or photograph the following information and material which is in the possession, custody, or control of the Respondent or his or her counsel or the existence of which is known to the Respondent or his or her counsel:

(a) Names and addresses of all witnesses proposed to be called in Respondent's defense, together with a copy of the contents of any statement, written, recorded, or otherwise preserved, of each such witness.

(b) All records, documents, physical evidence, or photographs which may or shall be offered as evidence in Respondent's defense.

(c) Any written reports or statements of experts, if proposed to be offered as evidence in connection with the case.

D. Exhibits

1) Respondent or his or her counsel shall produce to the Commission copies of all exhibits he or she intends to introduce as evidence in a Formal Hearing at least five (5) business days prior to the date of the Formal Hearing.

(a) This provision shall be satisfied if Respondent or his or her counsel previously provided disclosure under Rule 5.7 C to Complaint Counsel and the said disclosure contained no changes from that to be offered into evidence as exhibits.

(b) Respondent or his or her counsel shall produce at least six (6) physical copies of exhibits at the Formal Hearing, for any review by the Commission Hearing Panel/Hearing Officer and Complaint Counsel.

2) Upon written request of Respondent or his or her counsel. Complaint Counsel shall permit inspection of or produce to the Respondent or his or her counsel copies of all exhibits he or she intends to introduce as evidence in a Formal Hearing.

(a) This provision shall be satisfied if Complaint Counsel previously provided disclosure under Rule 5.7 C to Respondent or his or her counsel and the said disclosure contained no changes from that to be offered into evidence as exhibits.

(b) Complaint Counsel shall not be obligated to fulfill requests made by Respondent within (5) business days of the date of the formal Administrative Hearing.

E. Failure to Comply.

1) In case of the failure of any person to comply with a timely disclosure and/or production of exhibits, the Commission Hearing Panel or Administrative Hearing Officer shall either:

(a) Enter an Order prohibiting the noncompliant party from introducing the designated records, or

(b) Enter an Order continuing the matter until the next scheduled Formal Hearing time and, if the Respondent is the noncomplying party, tax any costs of the proceeding incurred because of the necessity for continuance of the proceedings against Respondent.

F. Amendment of Pleadings.

1) Complaint Counsel may amend a Formal Complaint or Notice of Hearing at any time prior to the scheduled hearing date for the purposes of correcting a clerical error, clarifying facts set forth in the Formal Complaint, or to add additional charges or counts to the Formal Complaint. However, upon any amendment of a Formal Complaint, Respondent will be served with the amended Formal Complaint, and Notice of Hearing, not less than fifteen (15) days before the scheduled hearing date, or by mutual agreement of the parties.

G. Procedural Decisions.

The Commission Chair or Hearing Officer will be fully authorized to make all necessary procedural decisions on behalf of the Commission, including, but not limited to, matters related to continuances, time extensions, and amendments to Formal Complaints.

Notes

30 Miss. Code. R. 1601-5.7

Miss. Code Ann. § 73-35-23, § 73-35-35 (1972, as amended).

Adopted 8/15/2022