What is a Hearing?
The hearing is a fact-finding process. The examiner will listen to each side and make an impartial decision on the issues involved in the case. The examiner will decide whether the administrative action taken or proposed by a government agency is supported by the facts and the law. The hearing is a formal process following legal procedures. Witnesses testify under oath or affirmation and in the order set by the examiner. Documents may be submitted if permitted by the rules of evidence. Each party has the right to ask questions of the witnesses. The hearings are tape recorded. The record made at the hearing will be the only thing reviewed if the examiner's decision is appealed further. The hearing is very important because it is the only chance you have to present the facts of your case.
How Will I be Notified of the Hearing?
A Notice of Hearing will be sent to you at least seven days before the hearing. Carefully read the notice and any papers attached to the notice. The notice tells the time and date of the hearing, where the hearing will be held, what the case is about, and the laws or rules involved in the case. A notice for a telephone hearing will list the telephone number you must call at the time of your hearing. If you have requested a hearing and then moved, immediately inform OHE of your new address.
Can an Appeal be Withdrawn?
If you have requested a hearing and later decide not to proceed, your request may be withdrawn any time before the scheduled date. You should mail a letter, withdrawing your hearing request to OHE as soon as possible so the other party can be notified that the hearing is canceled.
Do I Need a Lawyer?
An individual may represent himself or herself. Individuals may also choose to be represented by an attorney. Note: Corporations must be represented by an attorney.
The examiner is trained to conduct hearings where one or both parties are not represented. If you decide to hire an attorney, please notify OHE of your choice as soon as possible. If you hire an attorney, it will be at your own expense. You may be eligible for legal assistance through one of the state's legal services programs if your income and resources are limited. Additional information about obtaining legal representation can be obtained by calling the South Dakota Lawyer Referral Service at 1-800-952-2333.
What Happens at the Hearing?
As a rule, hearings begin promptly at the time shown on the Notice of Hearing. If you do not appear or are late for the hearing, your case could be dismissed or may be decided based on other available evidence.
At the beginning of the hearing, the examiner explains the hearing process, the issues to be decided, and the order of testimony. The witnesses are sworn under oath. The parties, in the order specified by the examiner, present their cases by testifying, calling other witnesses, and presenting documents or other evidence. After each witness testifies, the opposing party can ask questions of the witness. This is not a time to argue with the witness or make comments about the testimony, but instead is a chance to question the witness to test the testimony given or obtain information that is helpful to your case. The examiner may also ask questions of the parties and their witnesses during the hearing. After the parties are finished presenting information and asking questions of the witnesses, each party may give a closing statement, and the examiner closes the hearing. No information is accepted into the record after the hearing is closed.
Do I Need Witnesses and Other Evidence?
If you believe the opposing party's testimony will be different from your testimony, you may want to have witnesses or other evidence to help your case. Talk to potential witnesses before the hearing to find out what they know about your case. You should present witnesses with personal knowledge of the facts. A person who did not observe what happened or who cannot remember well is a poor witness. Use only witnesses you really need. If you have several people who would say the same thing, use the person who can best state the facts. Make sure your witnesses are available to participate at the time set for the hearing. If witnesses who are needed for your case refuse to appear, a subpoena ordering them to appear for the hearing can be issued.
You may receive documents with the Notice of Hearing that relate to your case. If you have other documents or evidence you need to prove your case, promptly mail copies to the other party after you receive the Notice of Hearing. If you want any of these documents considered by the examiner in making a decision, ask the examiner at the hearing to mark the documents as exhibits in your case. Parties should cooperate in exchanging information before the hearing. If the other party will not give you documents you need for your case, you can have the information subpoenaed.
If you are represented by an attorney, your attorney can subpoena the witnesses or documents you need for your case. If you do not have an attorney, you should ask the examiner to issue a subpoena. Requests to subpoena witnesses or documents should be made as soon as you receive the Notice of Hearing. You must state why the witness or document is important to your case. The examiner will then consider whether your request is reasonable and if the witnesses or documents are necessary in granting or denying a subpoena. You must supply the name and home address of any witness you want subpoenaed and describe the documents you need in your request. The party requesting the subpoena must pay the witness fees and costs for serving the subpoena.
How Can I Best Present My Case?
Listen to what the examiner tells you. If you do not understand, ask questions before the hearing starts. Make sure you understand the issues that will be discussed at the hearing. Explain the facts of your case in a clear and orderly way and give only the facts that are important. Do not waste time on things that have nothing to do with the issues in the case. Do not repeat yourself. If the examiner or the other party asks a question, answer it directly and honestly--do not add extra information. Be prepared to ask your witnesses questions to present their testimony to the examiner.
Listen to what the other side says. Do not interrupt. You will get your turn to ask questions and respond after the witness finishes testifying. Bring a pen and paper to the hearing and take notes so you can ask good questions and properly respond to the testimony. You should ask the other side questions only about important matters where the testimony can help your case.
It is important that the examiner believes you are telling the truth. Getting angry, being rude, or arguing with the examiner or opposing party will not help your case. Individuals who are disruptive may be expelled from the hearing.
What Happens After the Hearing?
The procedure for making a final decision varies from agency to agency, depending on the nature of the case. In most cases, the hearing examiner issues a proposed decision to the state agency. The agency then makes the final decision, which may affirm, reverse, or modify the examiner's proposed decision. In some cases, the examiner's decision is the final decision. The final decision will be mailed to the parties as soon as possible after the hearing. The decision will state the important facts of the case, the legal conclusion, and reasons for the decision, and an order stating the result of the decision.
Do I Have Further Appeal Rights?
If you think the final decision is wrong, you can appeal it to circuit court within 30 days after the date of the decision. In some instances, the law may allow an appeal of the decision to a higher level within the agency. Decisions of the circuit court may be appeal to the South Dakota Supreme Court. If you have any questions about filing an appeal of an administrative decision, consult an attorney.