252 Neb. Admin. Code, ch. 1, § 008

Current through September 17, 2024

Section 252-1-008 - Conducting a Contested Case Hearing

008.01Burden of Proof. The petitioner shall have the burden of proving that the Director's determination is wrong.

008.02Order. At the discretion of the hearing officer, the hearing may be conducted in the following order:

008.02A The hearing officer calls the hearing to order. He or she entertains any preliminary motions, stipulations or agreed orders.

008.02B Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

008.02C Presentation of evidence.

008.02C1 Evidence will be received in the following order:

008.02C1a The hearing officer shall receive into evidence the Director's answer stating from his or her records the make, model, and year, or other appropriate identification information about the petitioner's motor vehicle; the MSRP, and the source for determining the MSRP;

008.02C1b The petitioner presents evidence to show why the Director's determination is incorrect;

008.02C1c A representative for the Director may present rebuttal evidence;

008.02C1d The petitioner may present surrebuttal evidence.

008.02C2 With regard to each witness who testifies, the following examination may be conducted:

008.02C2a Direct examination by the party who calls the witness;

008.02C2b Cross examination by the opposing party;

008.02C2c Redirect examination by the party who calls the witness; and

008.02C2d Recross examination by the opposing party.

008.02D After the evidence is presented, each party may have an opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.

008.03Evidence.

008.03A In contested cases, a Department 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 repetitious evidence.

008.03B Any party to a formal hearing before the Department from which a decision may be appealed to the courts of this state may request that the Department be bound by the rules of evidence applicable in district court by delivering to the Department at least three (3) days prior to the holding of the hearing a written request for a formal hearing. The request shall include the requesting party's agreement to be liable for the costs of the hearing and of any appeal or review. The party shall also agree to procure and pay for a court reporter.

008.03C Documentary evidence may be received in the form of copies, or excerpts, or incorporated by reference.

008.03D The Department may include in the record any records and documents in its possession. No factual information or evidence other than the record shall be considered in the determination of the case.

008.03E 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. Subpoenas and orders issued under this subsection may be enforced by the district court.

008.03F The Department shall give effect to the rules of privilege recognized by law.

008.03G The Department may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by the Department.

008.03G1 Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

008.03G2 Parties shall be afforded an opportunity to contest facts so noticed.

008.03G3 The record shall contain a written record of everything officially noticed.

008.03H The Department may utilize its experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

008.04Time, Place, and Manner of Hearing. The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and if technically feasible, to see the entire proceeding while it is taking place. Hearings shall be held at such locations and at such times as may be determined by the Director taking into account the convenience of all parties and the purpose of the hearing.

008.05Official Record.

008.05A The Department shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for the purpose of rehearing of appeal, in which event the Department shall furnish the transcript and record upon request and tender of the cost of preparation.

008.05B The Department shall maintain an official record of each contested case under the Administrative Procedure Act for at least four (4) years following the date of the final order.

008.05C The Department record shall consist only of the following;

008.05C1 Notices of all proceedings;

008.05C2 Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department pertaining to the contested case;

008.05C3 The record of the hearing before the Department, including all exhibits and evidence introduced during the hearing, a statement of matters officially noticed by the Department during the proceedings, and all proffers of proof and objections and rulings thereon; and

008.05C4 The final order.

008.05D As provided in 53 NAC 4, Section 002.03, the hearing officer or Director who is or may reasonably be expected to be involved in the decision making process of the contested case who receives or who makes or knowingly causes to be made an ex pane communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.

008.05E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Department record shall constitute the exclusive basis for Department action in contested cases under the act and for judicial review thereof.

008.06Costs. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.

252 Neb. Admin. Code, ch. 1, § 008