Section 792.10106. Administrative law judge; disqualification and recusal; substitution; communications.

(1) The administrative law judge shall exercise the following powers when appropriate:

(a)    Conduct a full, fair, and impartial hearing.

(b)    Take action to avoid unnecessary delay in the disposition of proceedings.

(c)    Regulate the course of the hearing and maintain proper decorum. An administrative law judge may exercise discretion with regard to the exclusion of parties, their attorneys or authorized representatives or other persons, and may adjourn hearings when necessary to avoid undue disruption of the proceedings.

(d)    Administer oaths and affirmations.

(e)    Provide for the taking of testimony by deposition.

(f)    Rule upon offers of proof.

(g)    Rule upon motions and examine witnesses.

(h)    Limit repetitious testimony and time for presentations.

(i)    Set the time and place for continued hearings and fix the time for the filing of briefs and other documents.

(j)      Direct the parties to appear, or confer, or both, to consider clarification of issues, stipulations of facts, stipulations of law, settlement, and other related matters.

(k)    Require the parties to submit prehearing orders and legal memorandum.

(l)     Examine witnesses as deemed necessary by the administrative law judge to complete a record or address a statutory element.

(m)     Grant applications for subpoenas and subpoena witnesses and documents to the extent authorized by statute.

(n)      Issue proposed orders, proposals for decision, and final orders and take any other appropriate action authorized by law.

(o)    On motion, or on an administrative law judge’s own initiative, adjourn hearings, except where statutory provisions limit adjournment authority.

(2)   An administrative law judge may be recused, or disqualified, from a case based on bias, prejudice, interest, or any other cause provided for in this rule.

(3)   An administrative law judge may be recused in any proceeding in which the impartiality of the administrative law judge might reasonably be questioned, including but not limited to, instances in which any of the following exist:

(a)      The administrative law judge has a personal bias or prejudice concerning a party, a party’s authorized representative, or a party’s attorney.

(b)      The administrative law judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

(c)    The administrative law judge served as an attorney in the matter in controversy.

(d)    An attorney with whom the administrative law judge previously practiced law serves as the attorney in the matter in controversy.

(e)      The administrative law judge has been a material witness concerning the matter in controversy.

(f)      An administrative law judge shall voluntarily disclose to the parties any known conditions listed in subdivisions (a) to (e) of this subrule.

(4)   An administrative law judge who would otherwise be recused by the terms of this rule may disclose on the record the basis of disqualification and may ask the parties and their attorneys to consider, out of his or her presence, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties agree that the administrative law judge should not be disqualified, the administrative law judge may preside over the proceeding. The agreement shall be incorporated into the hearing record.

(5)     Any party seeking to disqualify an administrative law judge shall move for the disqualification promptly after receipt of notice indicating that the administrative law judge will preside or upon discovering facts establishing grounds for disqualification, whichever is later. A motion for recusal shall be made in writing and shall be accompanied by an affidavit setting forth definite and specific allegations that demonstrate the facts upon which the motion for disqualification is based.

(6)   If the challenged administrative law judge denies the motion for disqualification, a party may move for the motion to be decided by a supervising administrative law judge.

(7)     If an administrative law judge is disqualified, incapacitated, deceased, otherwise removed from, unable to continue a hearing, or to issue a proposal for decision or final order as assigned, another administrative law judge shall be assigned to continue the case by the hearing system director or his or her designee. To avoid substantial prejudice or to enable the administrative law judge to render a decision, the newly assigned administrative law judge may order a rehearing on any part of the contested case. This rule applies whether the substitution occurs before or after the administrative record is closed.

(8)   Once a case has been referred to the hearing system, no person shall communicate with the assigned administrative law judge relating to the merits of the case without the knowledge and consent of all other parties to the matter, except as follows:

(a)     The administrative law judge may communicate with another administrative law judge relating to the merits of cases at any time or the hearing system staff as provided by, 1969 PA 306, MCL 24.271 to 24.287.

(b)      The administrative law judge may, when circumstances require, communicate with parties, attorneys, or authorized representatives for scheduling, or other administrative purposes that do not deal with substantive matters or issues on the merits, provided that the administrative law judge reasonably believes that no party will gain procedural or tactical advantage as a result of the communication. The administrative law judge shall make provision to promptly notify all other parties of the substance of the communication and allow an opportunity to respond.

(9)    If an administrative law judge receives a communication prohibited by this rule, the administrative law judge shall promptly notify all parties, attorneys or authorized representatives of the receipt of such communication and its content.

History: 2015 AACS.