DAR File No. 39894

Commerce, Administration

Rule R151-4

Department of Commerce Administrative Procedures Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 39894
Filed: 10/30/2015 08:40:08 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change updates procedures to include electronic filing and clarifies procedures for discovery, stays, motions to dismiss, and deadlines.

Summary of the rule or change:

This amendment clarifies when a motion to dismiss may be brought when a case is under agency review; updates filing and service rules, and clarifies when methods of filing are considered complete; clarifies the scope of discovery; adds an explanation that the 30-day deadline to request agency review is jurisdictional and is not extended three days for mailing by Subsection R151-4-107(3); adds, as grounds for agency review, legal argument as to an objection to a ruling of the presiding officer, or as to procedure, or as to the legal validity of a statute or rule; and updates procedures when seeking to stay matters on agency review.

State statutory or constitutional authorization for this rule:

• Section 13-1-6
• Section 63G-4-102

Anticipated cost or savings to:

the state budget:

This rule clarifies and updates procedures and will not impact the state budget.

local governments:

This rule clarifies and updates procedures and will not impact local government. Local governments are not typically involved in the procedures being updated by this rule.

small businesses:

In the event small businesses are involved in the adjudicative process, this rule change will not have a negative financial impact. The availability of electronic filing could nominally reduce costs previously associated with paper filing.

persons other than small businesses, businesses, or local governmental entities:

This rule will financially benefit individuals involved in the adjudicative process, allowing them the option of electronic filing and eliminating costs associated with paper filing and mailing.

Compliance costs for affected persons:

No compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

As stated in the rule analysis, this filing clarifies procedures for a motion to dismiss a case on agency review, filing service, discovery, deadlines, grounds for agency review, and seeking a stay.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Administration
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Gregory Soderberg at the above address, by phone at 801-530-6706, by FAX at , or by Internet E-mail at gsoderberg@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2015

This rule may become effective on:

12/22/2015

Authorized by:

Francine Giani, Executive Director

R151. Commerce, Administration.

R151-4. Department of Commerce Administrative Procedures Act Rule.

R151-4-107. Computation of Time.

(1) Periods of time in department proceedings shall:

(a) exclude the first day of the act, event, or default from which the time begins to run; and

(b) include the last day unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) When a period of time is less than seven days, Saturdays, Sundays, and legal holidays are excluded.

(3)(a)(i) When a period of time runs after the service of a document by mail, three days shall be added to the end of the prescribed period.

(ii) Except as provided in R151-4-107(1)(b), these three days include Saturdays, Sundays, and legal holidays.

(b) No additional time is provided if service is accomplished by electronic means.

(4) Subsection (3) does not apply to a request for agency review filing made pursuant to Subsection R151-4-901(1).

 

R151-4-302. [ Time for Filing a ]Motion to Dismiss.

(1) A motion to dismiss on a ground described in Rule 12(b)(1) through (7) of the Utah Rules of Civil Procedure shall be filed prior to filing a responsive pleading.

(2) In a case that is under agency review:

(a) A motion to dismiss may be brought for:

(i) failure to comply with a jurisdictional deadline;

(ii) failure to file a hearing transcript; or

(iii) failure to file a required memorandum.

(b) A motion to dismiss may not be brought on an allegation or argument as to:

(i) the sufficiency of a pleading or a memorandum in support thereof;

(ii) the sufficiency of the evidence; or

(iii) any other issue that requires substantive analysis.

 

R151-4-401. Filing.

(1)(a) Pleadings shall be filed with:

(i) the department or division in which the adjudicative proceeding is being conducted, which[:

(A)] maintains the official file[and should receive original documents: and

(B) shall provide the pleading to the applicable board or commission]; and

(ii) an y administrative law judge who is conducting all or part of the adjudicative proceeding[, whose copy is a courtesy copy].

(b) The filing of discovery documents is governed by R151-4-512.

(2)(a)[(i)] A filing may be accomplished by :

(i) hand delivery of a paper copy, pursuant to Subsection (2)(b)(i); [or by]

(ii) first class or certified mail , postage pre-paid, of a paper copy, pursuant to Subsection (2)(b)(i);

(iii) fax, pursuant to Subsection (2)(b)(ii); or

(iv) attachment to electronic mail, pursuant to Subsection (2)(b)(iii).[to the department or division in which the adjudicative proceeding is being conducted]

[(ii)](b)(i) [a]A filing by hand delivery or first class or certified mail is complete when it is received and date stamped by the department or division, as applicable, or the administrative law judge who is assigned to act as the presiding officer in the case. If delivery to the department or division occurs on a different day than does delivery to the administrative law judge, the earlier date stamp shall constitute the date of filing.

[(b)](i i) A filing [may be accomplished by electronic means if the original document is also mailed to the department or division the same day, as evidenced by a postmark or mailing certificate.

(ii) Filing by electronic means]by fax is complete upon transmission if :

(A) compliant with Subsection (1);

(B) [transmission is ]completed and received during the department's operating hours , 8 a.m. to 5 p.m. Mountain Time (Standard or Daylight Savings, as applicable), on days other than Saturdays, Sundays, or state or federal holidays[; otherwise, filing is complete on the next business day]; and

(C) [(iii) A filing by electronic means is not effective unless the department or division] the recipient receives all pages of the document transmitted.

(iii) A filing by attachment to electronic mail is complete upon transmission if:

(A) the requirements of Subsection (2)(b)(ii) are met; and

(B) the party filing the document:

(I) also mails the document to the department or division and the administrative law judge the same day, as evidenced by a postmark; or

(II) prior to any applicable filing deadline, is expressly excused by the presiding officer from mailing the document.

[(iv)](d) The burden is on the party filing the document to ensure that a [transmission]filing is properly completed.

(e) All filings made on agency review shall be provided in paper copy.

 

R151-4-402. Service.

(1)(a) Pleadings filed by the parties and documents issued by the presiding officer shall be concurrently served on all parties.

(b) The party who files a pleading is responsible for service of the pleading.

(c) The presiding officer who issues a document is responsible for service of the document.

(2)(a) Service may be made:

(i) on a person upon whom a summons may be served pursuant to the Utah Rules of Civil Procedure; and

(ii) personally or on the agent of the person being served.

(b) If a party is represented by an attorney, service shall be made on the attorney.

(3)(a) Service may be accomplished by hand delivery of a paper copy, [or ]by mail of a paper copy to the last known address of the intended recipient , or by attachment to electronic mail.

(b) Service by hand delivery is complete upon delivery to:

(i) the person who is required to be served;

(ii) any individual who is employed by, and physically present at, the business office of the person who is required to be served; or

(iii) a mailbox or dropbox that is:

(A) assigned to the person who is required to be served; and

(B) physically located at the person's place of business.

[(b)](c) Service by mail is complete upon mailing , as evidenced by a postmark.

[(c) Service may be accomplished by electronic means.]

(d) Service by attachment to electronic [means]mail is complete on transmission if transmission is completed during normal business hours, 8 a.m. to 5 p.m. on days other than Saturdays, Sundays, and state and federal holidays, at the place receiving the service; otherwise, service is complete on the next business day.

(4) There shall appear on all documents required to be served a certificate of service in substantially the following form:

 

TABLE II

CERTIFICATE OF SERVICE
     I certify that I have this day served the
foregoing document on the parties of record in this
proceeding set forth below (by delivering a copy thereof
in person) (by mailing a copy thereof, properly addressed
by first class mail with postage prepaid, to) (by
electronic means[ and first class mail] to):

(Name(s) of parties of record)
(Address(es))

Dated this (day) day of (month), (year).

(Signature)
(Name and Title)

 

R151-4-502. Scope of Discovery.

(1) Parties may obtain discovery regarding a matter that:

(a) is not privileged;

(b) is relevant to the subject matter involved in the proceeding; and

(c) relates to a claim or defense[of]:

(i) (A) of the party seeking discovery; or

[(ii)](B) of another party ;

(ii) that is set forth in a pleading; and

(iii) that is brought pursuant to a statement of fact, information, or belief.

(2)(a) Subject to R151-4-502(3) and R151-4-504, a party may obtain discovery of documents and tangible things otherwise discoverable under R151-4-502(1) and prepared in anticipation of litigation or for hearing by or for another party or by or for that party's representative, including the party's attorney, consultant, insurer or other agent, only on a showing that the party seeking discovery:

(i) has substantial need of the materials in the preparation of the case; and

(ii) is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

(b) In ordering discovery of materials described in R151-4-502(2)(a), the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney of a party.

(3) Discovery of facts known and opinions held by experts, otherwise discoverable under R151-4-502(1) and acquired or developed in anticipation of litigation or for hearing, may be obtained only through the disclosures required by R151-4-504.

 

R151-4-901. Availability of Agency Review and Reconsideration.

(1) (a) Except as otherwise provided in Subsection 63G-4-209(3)(c), an aggrieved party may obtain agency review of a final order by filing a request with the executive director within 30 calendar days after the issuance of the order.

(b) This 30-day deadline is jurisdictional. The three-day mailing rule in Section 151-4-107(3) does not apply and does not extend the jurisdictional deadline.

(2)(a) Agency review is not available for an order or decision entered by:

(i) the Utah Motor Vehicle Franchise Advisory Board; or

(ii) the Utah Powersport Vehicle Franchise Advisory Board.

(b) Agency review is not available for an order or decision entered by the Division of Occupational and Professional Licensing for:

(i) Prelitigation proceedings under Title 78B, Chapter 3, the Utah Health Care Malpractice Act;

(ii) a request for modification of a disciplinary order; or

(iii) a request under Section 58-1-404(4) for entry into the Diversion Program.

(c) Agency review is not available for an order or decision entered by the Division of Corporations and Commercial Code for:

(i) refusal to file a document under the Utah Revised Business Corporations Act pursuant to Section 16-10a-126;

(ii) revocation of a foreign corporation's authority to transact business pursuant to Section 16-10a-1532;

(iii) refusal to file a document under the Utah Revised Limited Liability Company Act pursuant to Section 48-2c-211; or

(iv) revocation of a foreign limited liability company's authority to transact business pursuant to Section 48-2c-1614.

(d)(i) A party may request agency reconsideration pursuant to Section 63G-4-302 for an order or decision exempt from agency review under R151-4-901(2)(a), (2)(b)(ii), and (2)(c).

(ii) Pursuant to Subsections 58-1-404(4)(d) and 78B-3-416(1)(c), agency reconsideration is not available for an order or decision exempt from agency review under R151-4-901(2)(b)(i) and (2)(b)(iii).

 

R151-4-902. Request for Agency Review - Transcript of Hearing - Service.

(1) A request for agency review shall:

(a) comply with Subsection 63G-4-301(1)(b) and this section (R151-4-902); and

(b) include a copy of the order that is the subject of the request.

(2) A party requesting agency review shall set forth any factual or legal basis in support of that request, including adequate supporting arguments and citation to:

(a) appropriate legal authority; and

(b) the relevant portions of the record.

(3)(a) If a party challenges a finding of fact, the party must demonstrate, based on the entire record, that the finding is not supported by substantial evidence.

(b) A party challenging a finding of fact bears the burden to:

(i) marshal or gather all the evidence in support of the finding; and

(ii) show that despite that evidence, the finding is not supported by substantial evidence.

(c) The failure to marshal the evidence permits the executive director to accept a division's findings of fact as conclusive.

(d) A party challenging a legal conclusion must support the argument with citation to:

(i) relevant authority; and

(ii) the portions of the record relevant to the issue.

(4)(a) If the grounds for agency review include a challenge to a determination of fact or conclusion of law as unsupported by or contrary to the evidence, the party seeking agency review shall order and cause a transcript of the record relevant to the finding or conclusion to be prepared.

(b) When a transcript is required, the party seeking review shall:

(i) certify that the transcript has been ordered;

(ii) notify the department when the transcript will be available; and

(iii) file the transcript with the executive director in accordance with the time frame stated in the certification regarding transcript.

(c) The party seeking agency review bears the cost of the transcript.

(5) Grounds for agency review that include any legal argument must be supported by specific citations to the transcript of the proceeding, indicating when the argument was raised and preserved in the proceeding. Examples of legal argument include but are not limited to:

(a) an objection to a ruling of the presiding officer;

(b) an argument regarding one or more procedures attendant to the proceeding; or

(c) an argument as to the legal validity, including the Constitutionality, of a statute or rule.

[(5)](6)(a) A party seeking agency review shall, in the manner described in R151-4-401 and -402, file and serve on all parties copies of correspondence, pleadings, and other submissions.

(b) If an attorney enters an appearance on behalf of a party, service shall be made on the attorney instead of the party.

[(6)](7) Failure to comply with this section (R151-4-902) may result in dismissal of the request for agency review.

 

R151-4-907. Stay [ and Other Temporary Remedies ]Pending Judicial Review.

(1) A party seeking judicial review of an order may file with the executive director a motion for a stay of the order pending judicial review. The motion for a stay shall be filed with the executive director on the same date that a timely petition for judicial review is filed with the court.

([1]2) Unless otherwise provided by statute, a motion for a stay of an order [or other temporary remedy during the pendency of] pending judicial review shall include:

(a) a statement of the reasons for the relief requested;

(b) a statement of the facts relied upon;

(c) affidavits or other sworn statements if the facts are subject to dispute;

(d) relevant portions of the record of the adjudicative proceeding and agency review;

(e) a memorandum of law identifying the issues to be presented on appeal and supporting the aggrieved party's position that those issues raise a substantial question of law or fact reasonably likely to result in reversal, remand for a new hearing, or relief from the order entered;

(f) clear and convincing evidence that if the requested stay [or other temporary remedy ]is not granted, the aggrieved party will suffer irreparable injury;

(g) clear and convincing evidence that if the requested stay [or other temporary remedy ]is granted, it will not substantially harm other parties to the proceeding; and

(h) clear and convincing evidence that if the requested stay [or other temporary remedy ]is granted, the aggrieved party will not pose a significant danger to public health, safety and welfare.

(3)(a) The division that issued the order subject to review may oppose a motion for a stay in writing within ten days from the date that the motion is filed.

(b) Failure to oppose a timely motion under this Section shall result in an order granting the stay unless the executive director determines that a stay would not be in the public interest.

(c) If a division opposes a motion for a stay, the executive director may permit a final response by the party filing the motion.

( 4[2]) The executive director may grant a motion for a stay of an order [or other temporary remedy during the pendency of]pending judicial review if all of the criteria in R151-4-907 are met.

 

KEY: administrative procedures, adjudicative procedures, government hearings

Date of Enactment or Last Substantive Amendment: [ April 10, ]2015

Authorizing, and Implemented or Interpreted Law: 13-1-6; 63G-4-102(6)