§ 28-32-44 — Agency to maintain and certify record on appeal

North Dakota § 28-32-44

• Jurisdiction: North Dakota
• Title 28: Judicial Procedure, Civil
• Ch. 28-32: Administrative Agencies Practice Act

Text

1. An administrative agency shall maintain an official record of each adjudicative
proceeding or other administrative proceeding heard by it.
2. Within thirty days, or a longer time as the court by order may direct, after an appeal
has been taken to the district court as provided in this chapter, and after payment by
the appellant of the estimated cost of preparation and filing of the entire record of the
proceedings before the agency, the administrative agency concerned shall prepare
and file in the office of the clerk of the district court in which the appeal is pending the
original or a certified copy of the entire record of proceedings before the agency, or an
abstract of the record as may be agreed upon and stipulated by the parties. Upon
receiving a copy of the notice of appeal and specifications of error pursuant to
subsection 4 of section 28-32-42 and unless the agency is appealing, the
administrative agency shall notify the party appealing of the estimated costs of
preparation and filing of the record. Thereafter, unless the agency is appealing, the
party appealing shall pay the administrative agency the estimated costs required by
this subsection. If the actual costs of preparation and filing of the entire record of the
proceedings is greater than the estimated costs, the party appealing shall pay to the
agency the difference. If the actual costs are less than the estimated costs, the agency
shall pay to the party appealing the difference. Any payment for the costs of
preparation and filing of the record must be paid into the insurance recovery fund and
is appropriated as a refund to the agency for the purposes of defraying the costs of
preparing and filing the record. An agency may contract with any person or another
agency to prepare and file the record of any proceeding before the agency.
3. The cost of preparation and filing of the record may be waived by the district court
upon application by an appellant, showing that the appellant is a low-income person
unable to afford these costs. When a waiver is granted, the costs of preparation and
filing of the record must be paid by the administrative agency.
4. The agency record of the proceedings, as applicable, may consist of only the
following:
a. The complaint, answer, and other initial pleadings or documents.
b. Notices of all proceedings.
c. Any prehearing notices, transcripts, documents, or orders.
d. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.
e. A statement of matters officially noticed.
f. Offers of proof and objections and rulings thereon.
g. Proposed findings, requested orders, and exceptions.
h. The transcript of the hearing prepared for the person presiding at the hearing,
including all testimony taken, and any written statements, exhibits, reports,
memoranda, documents, or other information or evidence considered before final
disposition of proceedings.
i. Any recommended or proposed order, recommended or proposed findings of fact
and conclusions of law, final order, final findings of fact and conclusions of law, or
findings of fact and conclusions of law or orders on reconsideration.

j. Any information considered pursuant to section 28-32-25.
k. Matters placed on the record after an ex parte communication.
5. Except to the extent that this chapter or another statute provides otherwise, the
agency record constitutes the exclusive basis for administrative agency action and
judicial review of an administrative agency action.
6. The record on review of agency rulemaking action, as applicable, may consist of only
the following:
a. All agency notices concerning proposed rulemaking.
b. A copy of the proposed rule upon which written and oral submissions were made.
c. A copy of the rule as submitted for publication.
d. Any opinion letters by the attorney general as to a rule's legality or the legality of
the agency's rulemaking action.
e. A copy of any interim rule and the agency's findings and statement of the reasons
for an interim rule.
f. The regulatory analysis of a proposed rule.
g. The transcript of any oral hearing on a proposed rule.
h. All written submissions made to the agency on a proposed rule.
i. Any staff memoranda or data prepared for agency consideration in regard to the
proposed rule.
j. Any other document that the agency believes is relevant to the appeal.
k. Any other document that is not privileged and which is a public record that the
appellant requests the agency to include in the record, if relevant to the appeal.
7. If the notice of appeal specifies that no exception or objection is made to the agency's
findings of fact, and that the appeal is concerned only with the agency's conclusions of
law based on the facts found by it, the agency may submit an abstract of the record
along with such portions of the record as the agency deems necessary, to be
supplemented by those portions of the record requested to be submitted by the
appellant or by the other party when the agency is appealing.
8. The court may permit amendments or additions to the record filed by the
administrative agency in order to complete the record.