Office of Hearing Examiners

Catherine Williamson, Chief Hearing Examiner

The Office of Hearing Examiners conducts administrative hearings pursuant to the South Dakota Administrative Procedures Act and issues decisions for citizens who have the right to a hearing before a state agency. OHE conducts all hearings for the Department of Revenue and the Division of Insurance as well as other agencies wishing to use the Office.

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 digitally 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Can an Appeal be Withdrawn?

If you have requested a hearing and later decide not to proceed, your request may be withdrawn any time before the scheduled date.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.

Informal Request for Disclosure

Any interested person can make a request for disclosure of documents or records from public entities. The requestor must start with an informal request, either written or oral, to the custodian of the record for the agency from which the records are requested.

The custodian of the records may then provide the requestor with the document or records upon payment of fees. (See SDCL 1-27-35) Requestors making informal requests requiring staff time in excess of one hour may be required to pay the cost of the staff time necessary for the location, assembly, or reproduction of the public record. The custodian of the records shall provide the requestor an estimate of cost for assembling records for any informal request reasonably likely to involve a fee in excess of fifty dollars. The requestor must confirm in writing his or her acceptance of the cost estimate and agreement to pay. The fee may be waived if reduction of the fee would be in the public interest. There may also be a fee charged for the retrieval of documents of any records that are not required or permitted to be made public upon request.

Formal Written Request for Disclosure

If an informal request is denied or ignored in whole or in part, a written request may be made by the requestor to the public records officer of the public entity involved. The public record officers for differing public entities are as follows:

• State Offices: department secretary, constitutional officer, elected official, or commissioner of the department, office, or other division to which a request is directed.
• County: county auditor or the custodian of the record for law enforcement records;
• First or Second Class Municipality: finance officer or the clerk or custodian of the record for law enforcement records;
• Third Class Municipality: president of the board of trustees or the custodian of the record for law enforcement records;
• Organized Township: township clerk;
• School District: district superintendent or CEO;
• Special District: chairperson of the board of directors;
• Any Other Entity Not Otherwise Designated: person who acts in the capacity of the chief financial officer or individual as designated by the entity.

Process for the written request is as follows:

1. A written request may be made to the public record officer of the public entity involved. The public record officer shall promptly respond to the written request; but in no event later than ten business days from receipt of the request. The public record officer shall respond to the request by:
   (a) Providing the record in whole or in part to the requestor upon payment of any applicable fees pursuant to SDCL 1-27-35 and 1-27-36;
   (b) Denying the request for the record; or
   (c) Acknowledging that the public record officer has received the request and providing an estimate of the time reasonably required to further respond thereto;
2. Additional time to respond to the written request under subsection (1)(c) of this section may be based upon the need to clarify the nature and scope of the written request, to locate and assemble the information requested, to notify any third persons or government agencies affected by the written request, or to determine whether any of the information requested is not subject to disclosure and whether a denial should be made as to all or part of the written request.
3. If a written request is unclear, the public record officer may require the requestor to clarify which records are being sought. If the requestor fails to provide a written response to the public record officer's request for clarification within ten business days, the request shall be deemed withdrawn and no further action by the public records officer is required;
4. If the public record officer denies a written request in whole or in part, the denial shall be accompanied by a written statement of the reasons for the denial;
5. If the public record officer fails to respond to a written request within ten business days, or fails to comply with the estimate provided under subsection (1)(3) of this section without provision of a revised estimate, the request shall be deemed denied.

Denial of Written Request

If a public record officer denies a written request in whole or in part, or if the requestor objects to the public record officer's estimate of fees or time to respond to the request, a requestor may, within ninety days of the denial, commence a civil action by summons or, in the alternative, file a written notice of review with the Office of Hearing Examiners.

Filing Notice of Review With the Office of Hearing Examiners

The notice of review shall be mailed, via registered or certified mail, to the Office of Hearing Examiners and shall contain:

1. The name, address, and telephone number of the requestor;
2. The name and business address of the public record officer denying the request;
3. The name and business address of the agency, political subdivision, municipal corporation, or other entity from which the request has been denied;
4. A copy of the written request;
5. A copy of any denial or response from the public record officer; and
6. Any other information relevant to the request that the requestor desires to be considered.

Office of Hearing Examiners

Upon receipt, the Office of Hearing Examiners shall promptly mail a copy of the notice of review filed and all information submitted by the requestor to the public record officer named in the notice of review. The entity denying the written request may then file a written response to the Office of Hearing Examiners within ten business days. If the entity does not file a written response within ten business days, the Office of Hearing Examiners shall act on the information provided. The Office of Hearing Examiners shall provide a reasonable extension of time to file a written response upon written request or agreement of parties.

Upon receipt and review of the submissions of the parties, the Office of Hearing Examiners shall make written findings of fact and conclusions of law, and a decision as to the issue presented. Before issuing a decision, the Office of Hearing Examiners may hold a hearing pursuant to SDCL 1-26 if good cause is shown.

Appeal of Office of Hearing Examiners Decision

The aggrieved party may appeal the decision of the Office of Hearing Examiners to the circuit court pursuant to chapter 1-26. In any action or proceeding under this Act, no document or record may be publicly released until a final decision or judgment is entered ordering its release.

Suggested but not Required Forms

Notice of Review: Request for Disclosure of Public Records
Notice of Request for Disclosure of Public Records