Current through Register Vol. 18, September 20, 2024
(1) Following entry
of a hearing officer decision that resolves the complaint, pursuant to
49-2-505,
MCA, parties shall have the opportunity to file an appeal, present briefs, and
present oral argument to the commission as provided in this rule.
(2) A party that wants to appeal shall file a
notice of appeal to the commission within 14 days of the issuance of the
hearing officer decision. A party requesting review of the transcript must so
state in the party's notice of appeal.
(3) All briefing must conform to the
commission's formatting requirements set forth in ARM
24.9.111. A brief on appeal of a
hearing officer decision may not exceed 20 pages in length.
(4) The standards of review of appeals of
hearing officer decisions are as follows:
(a)
The commission reviews conclusions of law and interpretations of statutes and
administrative rules for correctness. The commission may reject or modify a
conclusion of law if it determines that the hearing officer misapplied fact to
law or incorrectly interpreted or applied the law.
(b) The commission reviews findings of fact
to determine whether substantial evidence exists to support a particular
finding. The review must be based upon review of the complete record. While the
hearing officer is entitled to some deference in findings of fact, weighing of
evidence, and credibility determinations, the commission may reject or modify a
finding of fact if it determines that such finding is clearly erroneous or not
based upon competent substantial evidence. The commission may additionally
reject or modify findings of fact if it determines that the proceedings on
which the findings were based did not comply with essential requirements of
law.
(c) The commission reviews
damage awards to determine if they are clearly erroneous. A party asserting
that a damage award is clearly erroneous shall specifically cite the portions
of the record supporting that claim. A party asserting an alternative monetary
award shall cite the portions of the record which support such alternative
calculation. The commission may deny an appeal on the issue of damages if it
fails to comply with this subsection.
(d) The commission may grant all relief
permitted by
49-2-506,
MCA, including full affirmative relief.
(5) The complete record for the purposes of
this rule is comprised of all documents cited or referred to in briefing before
the commission. If a party intends to challenge any finding of fact of the
hearing officer, the complete record additionally includes the transcript of
the hearing.
(a) The party citing or
referring to a document in its briefing is required to attach as an exhibit to
its brief the entirety of such document. If a party fails to attach required
documents to its briefing, the commission may deny the appeal.
(b) Documents which may be included in the
complete record are those enumerated at
2-4-614,
MCA. Failure of a party to submit documents enumerated in that statute
constitutes a stipulation by that party that the commission need not review
those documents.
(c) Exhibits not
admitted at hearing may not be attached to briefs on appeal, unless the failure
to admit such exhibit is a reason for appeal. On timely motion by any party,
any exhibit improperly attached may be stricken from the appeal.
(6) The briefing schedule before
the commission for appeals of hearing officer decisions must conform
substantially with the following:
(a) If
review of the transcript has been requested, the appellant shall file an
original and an electronic version of the transcript with the commission within
28 days of filing the notice of appeal.
(b) The appellant shall file an original and
an electronic version of its opening brief within 21 days of the filing of the
transcript or, if no review of the transcript has been requested, within 21
days of the filing of the notice of appeal. Failure to file an opening brief
may result in summary denial of the appeal sua sponte or on motion of any
party.
(c) The appellee shall file
an original and an electronic version of its response brief within 14 days of
service of the opening brief.
(d)
The appellant shall file an original and electronic version of its reply brief,
if any, within 14 days of service of the response brief.
(7) The following requirements apply to the
preparation of the transcript:
(a) A
transcript must be prepared by an impartial person with no affiliation to any
party and with no interest in the outcome of the contested case. A transcript
must be a verbatim and complete account of all proceedings on the record of the
hearing and must be in the form commonly accepted by the courts of record of
this state. The preparer of a transcript shall certify that the transcript is a
complete and accurate account of the stenographic or electronic recording of
the hearing and that the preparer has no affiliation with any party and has no
interest in the outcome of the contested case.
(b) Preparation of the transcript is the
responsibility of the party requesting review of the transcript. If more than
one party requests review of the transcript, all parties requesting the review
shall share equally in the cost of the transcript and copies.
(8) Each party is permitted
one-half hour of argument before the commission for each appeal. The appellant
may reserve a portion of that time for rebuttal. Oral argument may be waived by
the parties, except where it is requested by the commission.
(9) When a party has timely filed an appeal
of a hearing officer decision and has timely filed a supporting brief, the
commission will fix a date to provide the parties an opportunity to present
oral argument to the commission.
(10) The commission shall render a decision
which affirms, rejects, modifies, and/or remands the hearing officer decision
within 90 days of the hearing of the appeal. The final decision of the
commission is the final agency decision.
AUTH:
49-2-204,
49-3-106,
MCA; IMP:
49-2-204,
49-2-505,
49-2-506,
49-2-511,
49-3-315,
MCA
