N.M. Admin. Code § 1.2.2.12

Current through Register Vol. 35, No. 21, November 5, 2024

Section 1.2.2.12 - MOTIONS

A.Motions generally:

(1) Motions may be made at any time during the course of a proceeding. Notwithstanding the foregoing, if the grounds for a motion are known to the movant prior to public hearing, the motion shall be made prior to public hearing except upon good cause shown. The commission discourages any delay in the filing of a motion once grounds for the motion are known to the movant.

(2) Any motion made prior to public hearing must be made in writing. Motions made orally during a public hearing must, if the commission or presiding officer requires, also be filed in writing.

(3) Motions must clearly state the relief sought, the grounds therefor, whether the motion is opposed, and if so, by whom.

(4) All motions not specifically acted upon shall be deemed disposed of consistent with the final order of the commission in the proceeding. Motions based on factual allegations that do not appear of record shall be supported by affidavit filed along with the motion.

B.Motions to dismiss: Staff or a party to a proceeding may at any time move to dismiss a portion or all of a proceeding for lack of jurisdiction, failure to meet the burden of proof, failure to comply with the rules of the commission, or for other good cause shown. The presiding officer may recommend dismissal or the commission may dismiss a proceeding on their own motion.

C.Responses to motions:

(1)Response times:

(a) On motions made thirteen (13) or more days prior to a public hearing, staff and parties wishing to respond must respond in writing within thirteen (13) days of service of the motion or before the public hearing commences, whichever occurs first.

(b) On motions made subsequent to a public hearing, unless the motion is a motion for rehearing filed pursuant to Subsection F of 1.2.2.37 NMAC, staff and parties wishing to respond must respond in writing within thirteen (13) days of service of the motion.

(c) On motions made within thirteen (13) days of or during a public hearing, responses shall be made within such time as directed by the commission or presiding officer.

(d) Replies to responses shall not be filed without leave of the commission or presiding officer. Replies to responses shall be filed within thirteen (13) days of service of the response, or such other time period as the commission or presiding officer may prescribe.

(e) Notwithstanding the foregoing, staff and parties wishing to respond to motions pertaining to discovery requests or the answers thereto, including but not limited to motions to compel, motions for sanctions and motions for protective orders, must respond to the motion within eight (8) days of service of the motion unless the commission or presiding officer directs otherwise.

(2) Failure to make a timely response shall be deemed a waiver of the right to respond.

(3) Written responses based on factual allegations that do not appear of record shall be supported by affidavit filed along with the response.

D.Briefs: Motions seeking extensions of time or continuances and like motions directed to the discretion of the commission or presiding officer in procedural matters need not be accompanied by briefs. Unless otherwise provided in this rule or waived by the commission or presiding officer, other motions must be accompanied by a brief, including points and authorities, addressed to the issues raised by the motion. Responses to a motion should similarly be accompanied by a brief, including points and authorities.

E. Opposed and unopposed motions:

(1) The movant shall make a good faith effort to determine whether a contemplated motion will be opposed.

(2) If a motion will not be opposed, the movant shall so state in the motion, shall accompany the motion with a proposed order, and need not file a brief in support of the motion. The proposed order must be signed by all parties and staff unless the motion seeks an extension of time or a continuance or is similarly directed to the discretion of the commission or presiding officer in procedural matters.

(3) Opposed motions shall state affirmatively that concurrence of other parties and staff has been requested but denied or shall state why no request for concurrence was made. Proposed orders need not be submitted with opposed motions unless the commission or presiding officer directs otherwise.

F.Oral argument:

(1) Motions will be decided without oral argument or public hearing unless the commission or presiding officer directs otherwise.

(2) Oral argument or public hearing may be conducted by telephone conference call at the discretion of the commission or presiding officer.

(3) Staff and parties waive the opportunity to request oral argument or an evidentiary public hearing on a motion unless the request is stated in the motion or response to the motion.

N.M. Admin. Code § 1.2.2.12

1.2.2.12 NMAC - Rp, 17 NMAC 1.2.12, 9-1-08