Evidence will be received in the
011.01A1 The Department shall
offer into evidence as exhibits copies of the application, notice of hearing,
proof of publication of the notice of hearing, proof of payment of the
application fee and all protests or other correspondence received pertaining to
the application. Said exhibits shall not be offered to prove the truth of any
statement contained therein.
011.01A4 Rebuttal by Applicant.
011.01A5 Rebuttal by Protestants.
A party to the hearing
will be allowed to:
011.01B1 Make an opening
evidence and argument thereto;
011.01B3 Cross examine witnesses;
011.01B4 Present rebuttal evidence;
011.01B5 Make relevant motions concerning the
conduct of the proceedings or the introduction of evidence; and
011.01B6 Make a closing statement.
011.01C A person who has not filed
a pleading in accordance with Sections 005 or 007 of this Rule will be given a
reasonable period of time to make a statement at the public hearing. The
hearing officer shall determine when statements by any such person may be made
during the hearing. Such person shall not have any of the authority allowed a
party under this Rule. Such person is subject to examination by the parties to
the hearing, the Director, representatives of the Department, and the hearing
011.01D The Director or
hearing officer may establish time restrictions for the presentation of
evidence upon the motion of any party or upon his or her own order.
011.02A In application cases, the Director or
hearing officer may admit and give probative effect to evidence which possesses
probative value commonly accepted by reasonably prudent persons in the conduct
of their affairs and may exclude incompetent, irrelevant, immaterial and unduly
cumulative or repetitious evidence.
011.02B Any party to an application hearing
before the Department may request that the parties be bound by the rules of
evidence applicable in district court by delivering to the Department at least
three days prior to the holding of the hearing a written request therefore.
Such request shall include the requesting party's agreement to be liable for
the payment of costs incurred thereby and upon any appeal or review thereof,
including the cost of court reporting services.
Documentary evidence may be received
in the form of copies or excerpts or incorporated by reference.
011.02C1 The foundation for exhibits,
including an application submitted pursuant to this Rule shall be supported
orally or in writing. Any party desiring to lay foundation to an exhibit by
oral testimony shall give written notice to the Department and all other
parties at the time the exhibit is submitted pursuant to Section 010.02 of this
Rule. An application submitted pursuant to this Rule will be considered as
Parties shall furnish accurate copies of all documentary evidence offered at
the hearing to the Official Reporter, to the Director or hearing officer, and
to all parties to the proceeding.
011.02C3 When documents are numerous, such as
bank records or negotiable instruments, the Director or hearing officer may
refuse to receive in evidence more than a limited number alleged and appearing
to be representative. The party will be required to abstract in orderly fashion
the relevant data from these documents, affording other parties reasonable
opportunity to examine both the documents and the abstract, and thereupon offer
the abstract in evidence in exhibit form.
011.02C4 Relevant portions of books, papers
or documents shall be plainly designated and distinguished from all irrelevant
portions before the relevant material may be offered into evidence. Where the
irrelevant material in the book, paper or document is voluminous so as to
encumber the record, the book, paper or document may be marked for
identification and the relevant material read into the record. Upon direction
of the Director or hearing officer, a true copy of the relevant matter may be
received as an exhibit, provided that copies are delivered to all parties of
record and provided all parties of record are afforded an opportunity to
examine the book, paper or document and to offer in evidence in like manner
other portions thereof, if found to be material and relevant.
All of the exhibits introduced in
evidence shall be confined to a maximum size of 8 1/2 inches x 11 inches or be
placed upon paper which may be folded to such size.
011.02C5(1) Enlarged charts of exhibits may
be utilized at the hearing but the exhibit to be made a part of the record
shall be of such size as heretofore stated.
011.02C6 Exhibits may be sealed upon a
determination by the Director or hearing officer that the exhibits contain
information which is confidential in nature and which, if made public, could
harm any person.
All evidence including records and documents in the possession of the
Department of which it desires to avail itself shall be offered and made a part
of the record in the case. No factual information or evidence other than the
record shall be considered in the determination of the case.
011.02D1 The Director or any person or
persons designated by the Director may make such investigations as deemed
necessary to assist in the determination of matters pending before the
Department. Any finding or exhibits resulting from such investigation which the
Director uses in making a decision shall be included and become a part of the
evidence of such matter.
Any party desiring to introduce into evidence any part or parts of official
files of the Department shall obtain certified copies thereof from the
Department in advance of the hearing.
011.02E A hearing officer or designee may
administer oaths and issue subpoenas in accordance with the rules of civil
procedure except as may otherwise be prescribed by law.
011.02F The Department shall give effect to
the rules of privilege recognized by law.
The Department may take
administrative notice of cognizable facts and in addition may take
administrative notice of general, technical, or scientific facts within its
specialized knowledge and its rules adopted and promulgated pursuant to the
011.02G1 Parties shall be notified
either before or during the hearing or by reference in preliminary reports or
otherwise of materials so noticed.
011.02G2 Parties shall be afforded an
opportunity to contest facts so noticed.
011.02G3 The record shall contain a written
record of every fact or item administratively noticed.
011.02H The Department may utilize its
experience, technical competence and specialized knowledge in the evaluation of
the evidence presented to it.
011.02I Parties to any proceeding may agree
upon any facts involved in the controversy, either by written stipulation
entered into the record as an exhibit, or by oral agreement stated on the
record; provided, that the Department shall not be irrevocably bound by such
011.02J During any
proceedings, the Director or hearing officer may request any party to furnish
and serve designated late filed exhibits. Such exhibits shall be filed within
such time as specified by the Director or hearing officer.
Any party may appear in his/her own
behalf at the hearing. An individual may appear on behalf of a party only if he
011.02K1 Is an officer, director, or
shareholder of a party which is the applicant in an application case to which
no protest has been filed;
Is admitted to practice law before the Nebraska Supreme Court; or
011.02K3 Is admitted to and engaged in the
practice of law in the courts of record of another state, the District of
Columbia, or a territory of the United States, and has associated with and is
appearing with an attorney who is a resident of Nebraska, duly and regularly
admitted to practice in the courts of record of this state, and upon whom
service may be had in all matters connected with the action with the same force
and effect as if personally made on such foreign attorney within this state,
upon the filing of an appropriate pro hac vice motion with the
Director, hearing officer, or any person designated by the hearing officer
shall administer an oath to all witnesses providing testimony in an
administrative case prior to their testimony.
011.02L1 Every party to a contested case
shall have the right to cross-examine each witness who testifies at a hearing.
Where it appears that the cross-examination by one party will protect the
rights of all parties similarly situated, the hearing officer may limit
cross-examination to one party on either side of an issue.
A subpoena requiring the attendance
of a witness shall be issued by the Director or hearing officer, on good cause
shown, for the purpose of taking evidence or compelling the production of any
papers, books, accounts, and documents which are relevant and material to the
011.02L2(a) A party directed to
produce accounts, books, documents, or papers shall furnish and deliver the
same at the time and place to the person specified in the subpoena.
011.02L2(b) A subpoena issued pursuant to
this Rule may be served in any manner permitted by law including service by
certified or registered mail, return receipt requested.
011.02L2(c) In the case of disobedience of a
subpoena, the Director may invoke the aid of the applicable District Court in
requiring the attendance and testimony of witnesses and in the production of
accounts, books, documents, or papers.
011.02L2(d) Charges for serving a subpoena
are to be paid prior to the date set for hearing by the party at whose instance
the subpoena is issued.
011.02L3 Any witness who is subpoenaed and
who responds thereto is entitled to the same fee as is paid for like service in
the District Courts of Nebraska. Such fee is to be paid by the party at whose
instance the witness's testimony is to be taken.
011.02L4 Sequestration of witnesses shall not
be permitted in application cases.
011.05A The Department shall prepare an
official record, which shall include testimony and exhibits, in each
application case, but it shall not be necessary to transcribe the record of the
proceedings unless requested for purpose of rehearing or appeal, in which event
the transcript and record shall be furnished by the Department upon request and
tender of the cost of preparation.
011.05B The Department shall maintain an
official record of each application case under the APA for at least four years
following the date of the final order.
The Department record shall consist
only of the following:
011.05C1 Notices of
application, and any protest, pleadings, motions, requests, preliminary or
intermediate rulings and orders, and similar correspondence to or from the
Department pertaining to the application case;
011.05C3 The record of the hearing before the
Department, including all exhibits and evidence introduced during such hearing,
a statement of matters administratively noticed by the Director or hearing
officer during the proceeding, and all proffers of proof and objections and
rulings thereon; and
provided in Section 004.03 of this Rule, the hearing officer or Director, or
Department employee who is or may reasonably be expected to be involved in the
decision making process of the application case who receives or who makes or
knowingly causes to be made an ex parte communication as set forth in that
Section shall make the appropriate filings which shall be included in the
official record of the application case.
011.05E Except to the extent that the APA or
another statute provides otherwise, the Department record shall constitute the
exclusive basis for Department action in application cases pursuant to this
Rule and for judicial review thereof.
011.05F In proceedings where a record is not
required by law, any party may request and obtain an official record of the
proceedings, provided said request is in writing and delivered to the Director
at least five days prior to the date of hearing. The cost of preparing the
official record shall be born by the parties requesting its