N.M. Admin. Code § 18.9.1.17

Current through Register Vol. 35, No. 24, December 23, 2024

Section 18.9.1.17 - HEARING PROCESS

A.Opening: The hearing examiner will provide an overview of the hearing process to the participants. Any commenters are provided an opportunity to enter an oral or written statement for the record, but comments shall not be considered or entered as evidence. The parties may offer a brief position statement.

B.Order of presentment: Sworn testimony and evidence will ordinarily be received and admitted to the record in the order prescribed in this section unless otherwise directed by the hearing examiner.

(1)Challenged applications:

(a) staff assessment;

(b) applicant;

(c) intervenors; and

(d) rebuttal by staff or applicant.

(2)Staff petition for sanctions or penalties:

(a) staff;

(b) respondent;

(c) rebuttal by staff.

(3)Petition for reinstatement:

(a) petitioner;

(b) staff; and

(c) rebuttal by petitioner.

B.Examination of witnesses:

(1)Direct examination: Except for witnesses appearing in response to subpoena who are subject to direct examination, each witness must be called forward and sworn in prior to authenticating their pre-filed written testimony as their direct examination, and then such witness must be immediately passed for cross-examination.

(2)Cross examination: Each witness is subject to cross-examination by the parties.

(3)Re-direct: Following cross examination, each party must be provided an opportunity to re-direct their witness, with questions limited to addressing only the issues raised on cross-examination.

(4)Hearing examiner inquiries: The hearing examiner may question witnesses to obtain clarification or to ensure a full record is created.

C.Preponderance of evidence standard: Unless another standard is specifically provided in law, after the testimony and evidence is presented and provided appropriate consideration, the fact finder must be convinced that the alleged fact or event was 'more likely than not' to have existed or occurred.

D.Motion and response:

(1) Motions may be made at any time during the course of a proceeding. However, if the grounds for a motion are known to the movant prior to public hearing, the motion shall be filed prior to public hearing, except upon good cause shown. Proposed orders need not be submitted with motions unless the hearing examiner directs otherwise.

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

(3) All motions not specifically acted upon shall be deemed disposed of consistent with the final order.

(4) Response. Failure to make a timely response shall be deemed a waiver of the right to respond. Unless the hearing examiner authorizes additional time to respond, a response is timely if filed within five calendar days of service of the motion.

N.M. Admin. Code § 18.9.1.17

Adopted by New Mexico Register, Volume XXXV, Issue 12, June 25, 2024, eff. 7/1/2024