Section 176.1070 Conduct of Formal Hearings

Section 176.1070  Conduct of Formal Hearings

a)         All

hearings conducted in any proceeding will be open to the public.

b)         Every

hearing will be presided over by a hearing officer duly appointed by the

Secretary.  The hearing officer will have the authority to conduct the hearing,

rule on all motions, administer oaths, subpoena witnesses or documents at the

request of any party, examine witnesses, and rule upon the admissibility of

testimony and evidence.  The Secretary may also appoint a representative to

appear and participate in the hearing on the Secretary's behalf.  Before

evidence is taken, the petitioner or respondent may request disqualification of

the hearing officer by making a motion for disqualification on the record that

states the specific grounds upon which it is alleged that the hearing officer

cannot provide a fair and impartial hearing.  The hearing officer will rule

upon the motion.  If the motion is denied, the hearing will proceed, or the

petitioner may withdraw from the hearing.  If the motion is granted, the case will

be transferred to another hearing officer for a hearing on the same day if

possible.  If it is not possible to schedule a hearing on the same day, the

Secretary will assign another hearing officer, who will schedule a new hearing

date.

c)         Depositions and

Interrogatories

1)         Upon

order of the hearing officer, for good cause shown, and upon reasonable notice

to other parties, any party, including the Department, may take, at its own

expense, the testimony of any party or person by deposition upon oral

examination or written questions for the purpose of discovery or for use as

evidence in the action in a contested case (for example, when the witness is

not available because of distance, time, cost to the party using the testimony,

sickness, infirmity, imprisonment, the witness being out of state, or similar

factors)

own

expense, the testimony of any party or person by deposition upon oral

examination or written questions for the purpose of discovery or for use as

evidence in the action in a contested case (for example, when the witness is

not available because of distance, time, cost to the party using the testimony,

sickness, infirmity, imprisonment, the witness being out of state, or similar

factors).  The notice, order, or stipulation to take a deposition must specify

whether the deposition is to be a discovery deposition or an evidence

deposition.  In the absence of specification, a deposition is a discovery

deposition only.  If both discovery and evidence depositions are desired of the

same witness, they must be taken separately, unless the parties stipulate

otherwise or the hearing officer orders otherwise upon notice and motion.  The

deposition must be taken in the manner provided by law for discovery and

evidence depositions in civil actions in the Circuit Courts of Illinois.

2)         Any

party may direct written interrogatories to any other party.  Interrogatories

must be restricted to the subject matter of the case to avoid undue detail and

the imposition of any unnecessary burden or expense on the answering party.

Sworn answers or objections to interrogatories directed to the Index Department

or the Secretary of State may be made by a designated agent, including the

Department's counsel, who shall furnish such information as is available.

Written interrogatories must be served on the opposing party not later than 15

business days before the hearing.  Objections to questions or refusals to

answer will be heard as motions at the hearing before the hearing officer, who will

rule on the objection or refusal.  Answers shall be sworn

ated agent, including the

Department's counsel, who shall furnish such information as is available.

Written interrogatories must be served on the opposing party not later than 15

business days before the hearing.  Objections to questions or refusals to

answer will be heard as motions at the hearing before the hearing officer, who will

rule on the objection or refusal.  Answers shall be sworn.  If an answer to an

interrogatory can be obtained from documents in the possession or control of

the party on whom the interrogatories are served, it is a sufficient answer to

specify the documents and make them available to the inquiring party to inspect

and copy at the asking party's expense.  This subsection (c)(2) does not apply

to objections or refusals to answer interrogatories.

d)         Rules

of Evidence.  The technical rules of evidence shall not apply.  Any relevant

evidence may be admitted if it is the sort of evidence relied upon by

reasonably prudent people in the conduct of their affairs.  The existence of

any common law or statutory exclusionary rule that might make improper the

admission of the evidence over objections in civil or criminal actions shall

not be a bar to the admissibility of otherwise relevant evidence.  The rules of

privilege shall be followed to the same extent that they are now or may be

recognized in later civil actions.  Irrelevant, immaterial, or unduly

repetitious evidence may be excluded upon objection.  Objections to evidentiary

offers may be made and will be noted in the record and ruled upon by the

hearing officer.  Any party may make an offer of proof following an adverse

evidentiary ruling.  Subject to these requirements, when a hearing will be

expedited and the interests of the parties will not be prejudiced, any part of

the evidence may be received in written form.  Subject to the evidentiary

requirements of this subsection, a party may conduct cross-examination required

for a full and fair disclosure of the facts

make an offer of proof following an adverse

evidentiary ruling.  Subject to these requirements, when a hearing will be

expedited and the interests of the parties will not be prejudiced, any part of

the evidence may be received in written form.  Subject to the evidentiary

requirements of this subsection, a party may conduct cross-examination required

for a full and fair disclosure of the facts.

e)         List

of Witnesses and Bill of Particulars.  Upon written request made at least 10

business days before the hearing, a party shall furnish to the other parties a

list of the names and addresses of prospective witnesses or written answers to

a written demand for a bill of particulars.

f)         Inspection

of Documents and Interview of Parties

1)         Any

party or its representatives shall have the right, upon the filing of a written

motion with proper proof of service, to inspect any relevant document in the

possession of or under the control of any other party before the formal

hearing.  The inspection of documents shall occur at the location the formal

hearing is scheduled.

2)         Any

party may file a written motion seeking to interview parties or persons having

knowledge of relevant facts, subject to any statutory or constitutional

privileges.  Upon order of the hearing officer, for good cause shown, and upon

reasonable notice to other parties, any party, including the Department of

Administrative Hearings, may interview at its own expense, parties or persons

having knowledge of relevant facts.  Interviews of persons and inspection of

documents shall be at times and places reasonable for the persons and the

custodian of the document.

g)         Admissions.

A party may serve on any other party a written request for the admission by

the latter of the truth of any specified relevant fact in the request or for

the admission of the genuineness of any relevant documents described in the

request

ews of persons and inspection of

documents shall be at times and places reasonable for the persons and the

custodian of the document.

g)         Admissions.

A party may serve on any other party a written request for the admission by

the latter of the truth of any specified relevant fact in the request or for

the admission of the genuineness of any relevant documents described in the

request.  Copies of the documents shall be served with the request unless

copies have already been furnished.

h)         Right

to Call Witnesses, Cross-Examine, Subpoena Documents and Introduce Exhibits.

Each party shall have the right to request the subpoena of witnesses, to call

and examine witnesses, to introduce exhibits, and to cross-examine witnesses on

any matter relevant to the issues even if that matter was not covered in the

direct examination.  Applications to the hearing officer assigned to the case

for subpoenas duces tecum must specify the books, papers and documents desired

to be produced.

i)          Pre-hearing

Conference.  At the request of any party or upon the hearing officer's own

motion, the hearing officer may call a pre-hearing conference.  At the

conference, the parties or their representatives shall appear as the hearing

officer directs.  Matters that may be considered at a pre-hearing conference

include, but are not limited to:

1)         The

simplification of the issues;

2)         Amendments

to the grounds for action;

3)         The

possibility of obtaining admissions, stipulations of fact, and documents that

will avoid unnecessary proof;

4)         The

limitation of the number of expert witnesses; and

5)         Any

other matters that may aid in the disposition of the contested case.

j)          Order

from Pre-hearing Conference.  After a pre-hearing conference, the hearing

officer will enter an order reciting any action taken, any agreements made by

the parties as to any of the matters considered, and the issues to be heard.

k)         Oath

limitation of the number of expert witnesses; and

5)         Any

other matters that may aid in the disposition of the contested case.

j)          Order

from Pre-hearing Conference.  After a pre-hearing conference, the hearing

officer will enter an order reciting any action taken, any agreements made by

the parties as to any of the matters considered, and the issues to be heard.

k)         Oath.  Testimony shall

be taken only on oath or affirmation.

l)          Stipulations.

Parties may agree by stipulation upon any facts involved in the hearing.  The

facts stipulated shall be considered as evidence in the hearing.

m)        Official

Notice.  The hearing officer may take official notice of past hearings and of

any matter of which the Circuit Courts of Illinois may take judicial notice.

In addition, official notice may be taken of generally recognized technical or

scientific facts with the Department's specialized knowledge.  Parties will be

notified either before or during the hearing, or by reference in preliminary

reports or otherwise, of the material noticed, including staff memoranda and

data, and they will be given an opportunity to contest the material so noticed.

The Department's and the hearing officer's experience, technical competence,

and specialized knowledge may be used in the evaluation of the evidence.

n)         Rights

of Parties.  Each party shall have the right to rebut the evidence against that

party, to appear in person, and to be represented by counsel.  If a party does

not testify on its own behalf, it may be called by the Secretary of State's

representative and examined as if under cross-examination.

o)         Opening

and Closing Statements.  Upon the opening of the hearing, the hearing officer will

allow the parties to make opening statements.  Opening statements may not be

made at any other time, except at the discretion of the hearing officer

arty does

not testify on its own behalf, it may be called by the Secretary of State's

representative and examined as if under cross-examination.

o)         Opening

and Closing Statements.  Upon the opening of the hearing, the hearing officer will

allow the parties to make opening statements.  Opening statements may not be

made at any other time, except at the discretion of the hearing officer.  Upon

the close of the hearing, each party may make a closing statement orally, by

written brief, or both, at the discretion of the hearing officer, incorporating

arguments of fact and law.  A written brief may be required when the hearing

officer determines that the facts and issues are complicated and the parties

must plead their cases in writing for the record.

p)         Exhibits.

All exhibits must be clearly marked for identification and admitted into

evidence by the hearing officer.

q)         Cross-examination

of Witnesses.  In the hearing of any case, any party may call any other party

or its agent as an adverse witness and examine that witness as if under

cross-examination.  The adverse party calling for the examination is not bound

by the testimony of the adverse witness, but may rebut the testimony given and

impeach the witness by proof of prior inconsistent statements.  If the hearing

officer determines that a witness is hostile or unwilling, the witness may be

examined by the party calling the witness as if under cross-examination.  The

party calling an occurrence witness may, upon showing that the party called the

witness in good faith but is surprised by the testimony, impeach the witness by

proof of prior inconsistent statements.

r)          Burden

of Proof.  The general burden of proof is upon the petitioner for any relief in

a hearing.  The standard of proof is the preponderance of the evidence.

s)         Interpreters

and the Deaf and Hard of Hearing

ess may, upon showing that the party called the

witness in good faith but is surprised by the testimony, impeach the witness by

proof of prior inconsistent statements.

r)          Burden

of Proof.  The general burden of proof is upon the petitioner for any relief in

a hearing.  The standard of proof is the preponderance of the evidence.

s)         Interpreters

and the Deaf and Hard of Hearing.  The Secretary will provide, upon prior

written request, an interpreter for parties who are deaf or hard of hearing and

wish to testify.  Providing a language interpreter, however, is the

responsibility of the petitioner or respondent.

t)          Report of Proceedings

and Obtaining a Copy of Record

1)         The

Department of Administrative Hearings will, at its expense, have present at

each formal hearing an electronic or digital recording device or a qualified

court reporter to make a permanent and complete report of the proceedings,

including evidence admitted or tendered and not admitted, testimony, offers of

proof, objections, remarks of the hearing officer and of the parties and their

representatives, and all rulings of the hearing officer.

2)         Upon

written request and at the party's own expense, any party may obtain a copy of

the report of proceedings from the court reporter or the electronic device from

the Department of Administrative Hearings.  The party must pay $25 to the

Secretary of State, in advance, to cover the cost of making an electronic or

digital copy and mailing.

u)         Motions to Continue and

Withdraw and Leave to Submit Original Documents

1)         Motions

to Continue by a Petitioner or Respondent and Grounds.  Hearings before the

Department of Administrative Hearings will be continued only pursuant to a

motion that complies with Section 176.1050 and is filed on or before the date

of the hearing, made over the telephone before or on the date of the hearing,

or made in person on the day of the hearing

Submit Original Documents

1)         Motions

to Continue by a Petitioner or Respondent and Grounds.  Hearings before the

Department of Administrative Hearings will be continued only pursuant to a

motion that complies with Section 176.1050 and is filed on or before the date

of the hearing, made over the telephone before or on the date of the hearing,

or made in person on the day of the hearing.  The movant shall set forth the

grounds for the motion, which are limited to unforeseen, unavoidable, or

uncontrollable circumstances, such as an Act of God, the recent discovery of

new evidence, the sudden illness or death of the movant, a member of the movant's

immediate family, or the movant's legal counsel, or if the movant can

demonstrate some other real and compelling need for additional time.  A Motion

to Continue may be supported by evidence that tends to prove the grounds

alleged, including sworn testimony taken at a motion hearing on the day of the

hearing.  The inability to obtain transportation to the hearing site or a party's

failure or inability to obtain the documentation required to fulfill the

minimum requirements to be issued relief are not circumstances that justify

continuing a hearing.

2)         Continued

to a Date Certain.  A formal hearing will not be continued "generally".

A continuance, if granted, will state a date certain on which the hearing shall

reconvene.  If the petitioner is not prepared to go forward after the first

continuance, a request to withdraw must be submitted or an Order of Default

shall be entered.

A)        Written

Motions to Continue filed at least 15 days before the date of the hearing

specified in the Notice of Hearing or notice of a continued hearing date will

be given priority in rescheduling over motions filed or made less than 15 days before

the date of the hearing or made on the date of the hearing

a request to withdraw must be submitted or an Order of Default

shall be entered.

A)        Written

Motions to Continue filed at least 15 days before the date of the hearing

specified in the Notice of Hearing or notice of a continued hearing date will

be given priority in rescheduling over motions filed or made less than 15 days before

the date of the hearing or made on the date of the hearing.  The Department

will rule upon Motions to Continue filed at least 15 days before the date of

the hearing and, when possible, notify the movant of its ruling before the date

of the hearing.  If the motion is denied, the movant must appear at and proceed

with the hearing or withdraw from the hearing or an Order of Default shall be

entered.

B)        Motions

to Continue made by telephone less than 15 days before the date of the hearing

specified in the Notice of Hearing or notice of a continued hearing date must

also be filed in writing and received or postmarked no more than 5 days after

the date of the hearing to be considered.  A Motion to Continue made in writing

less than 15 days before the date of the hearing specified in the Notice of

Hearing or notice of a continued hearing date must be received and postmarked

no more than 5 days after the date of the hearing.  The Department of

Administrative Hearings cannot assure the movant that it will rule upon these

motions before the date of the hearing.

C)        It is

the responsibility of the movant to inform the Department of Administrative

Hearings, in the Motion to Continue or during a telephone conversation, what

course of action the movant wishes to take if the motion is denied (either to

appear and proceed with the hearing, withdraw, or default).  In all cases, it

is also the responsibility of a movant who has not been notified of the

Department's ruling to contact the Department of Administrative Hearings on or

before the day of the hearing to determine whether the hearing officer has

ruled on the motion

of action the movant wishes to take if the motion is denied (either to

appear and proceed with the hearing, withdraw, or default).  In all cases, it

is also the responsibility of a movant who has not been notified of the

Department's ruling to contact the Department of Administrative Hearings on or

before the day of the hearing to determine whether the hearing officer has

ruled on the motion.  A movant's failure to appear after a Motion to Continue

is denied will result in the entry of an Order of Default.

3)         Motions

Made by the Secretary or the Index Department.  The Department may also make or

file a Motion to Continue for unforeseen, unavoidable, or uncontrollable

circumstances, such as an Act of God, the recent discovery of new evidence, the

sudden illness or death of the hearing officer, the attorney representing the

Secretary of State, a witness, or a member of the immediate family of one of

these entities, or if the Department can demonstrate some other real and

compelling need for additional time.

4)         Motions

to Withdraw.  Except as provided in this subsection (u)(4), a petitioner may

withdraw from a hearing for any reason.  A Motion to Withdraw made in person or

by telephone on or before the day of the hearing must be followed up with a

written motion that is received no more than 10 days after the date of the

hearing.  A Motion to Withdraw made in writing must be received or postmarked not

more than 10 days after the date of the hearing.  Failure to do so will result

in an Order of Default.  Once a petitioner is placed under oath, a request to

withdraw from a hearing that, in the hearing officer's judgment, is based upon

surprise evidence presented or adverse evidence shall not be granted.  Upon

withdrawal, the requested relief will not be considered and the petition is

dismissed.  Should the petitioner request another hearing, it must be done in

writing and it will be treated as any other request for a hearing

r oath, a request to

withdraw from a hearing that, in the hearing officer's judgment, is based upon

surprise evidence presented or adverse evidence shall not be granted.  Upon

withdrawal, the requested relief will not be considered and the petition is

dismissed.  Should the petitioner request another hearing, it must be done in

writing and it will be treated as any other request for a hearing.

5)         Motions

for Leave to Submit Original Document.  As provided in this subsection (u), the

petitioner may request leave to submit original documents if the petitioner

proceeds with the hearing, offering copies of documents when originals are

required.  The hearing shall be completed and the petitioner shall be granted

leave to submit the original documents.

6)         Attorney's

Appearance on File.  A Motion to Continue or Withdraw made by any attorney on

behalf of a petitioner or respondent will not be considered unless the attorney

has filed a written notice of appearance as provided in Section 176.1010.