N.D. Admin Code 98-02-02-08 - Motions - Certification of motions

1. Motions must state the relief sought, the authority relied upon, and the facts alleged. If made before the hearing they must be in writing. If made at the hearing, they may be stated orally, but the hearing officer may require that they be reduced to writing, filed, and served. Within ten days after a written motion is served, or such other period as the hearing officer may fix, any party may file a response to the motion. The hearing officer may not sustain or grant a written motion prior to expiration of the time for filing responses, but may deny the motion without awaiting response. An immediate oral response may be made to an oral motion, and an oral motion may be ruled on immediately. Motions submitted to the administrative agency or hearing officer, and not disposed of in a separate ruling or in the findings of fact, conclusions of law, and order, will be deemed denied. When the hearing officer designated to preside at the hearing is not the final decisionmaker, the hearing officer is authorized to rule upon any motion not formally acted upon by the administrative agency prior to the assignment of the matter to the hearing officer.

2. The hearing officer, either upon the request of a party or independent of such a request, may certify a motion to the administrative agency for final ruling. In deciding which motions should be certified, the hearing officer shall consider the following:

a. Whether the motion involves a controlling question of law as to which there is a substantial ground for difference of opinion;

b. Whether a final determination by the agency on the motion would materially advance the ultimate termination of the hearing;

c. Whether or not the delay between the ruling and the motion would adversely affect the prevailing party;

d. Whether to wait until after the hearing would render the matter moot and impossible for the agency to reverse or for a reversal to have any meaning; or

e. Whether it is necessary to promote the development of the full record and avoid remanding.

Notes

N.D. Admin Code 98-02-02-08

Effective January 1, 1992.

General Authority: NDCC 54-57-05

Law Implemented: NDCC 28-32-35, 54-57-04