§ 421-B:6-613 — Hearing Procedures

New Hampshire § 421-B:6-613

• Jurisdiction: New Hampshire
• Title XXXVIII: SECURITIES
• Ch. 421-B: UNIFORM SECURITIES ACT
• Subdivision: ARTICLE 6Administration and Judicial Review

Text

(a) Notwithstanding any other law to the contrary, all adjudicatory proceedings pursuant to this chapter shall be conducted by the secretary of state or by a presiding officer appointed by the secretary of state. All hearings conducted pursuant to this chapter shall be governed by the provisions of this section and the provisions of RSA 541-A shall not apply to this chapter.
(b) A document shall be considered filed when it is actually received at the department's office in Concord, New Hampshire, and conforms to the requirements of this chapter.
(c) For the purposes of this section:
(1) All complaints, petitions, motions, responses, and replies shall be signed by the proponent of the document or, if the party appears by a representative, by the representative.
(2) License, registration, and exemption applications shall be signed only by the applicant or properly authorized designee.
(3) The signature on a document filed with the department shall constitute a certification that:
(A) The signer has read the document and is authorized to file it;
(B) There are good grounds to support the representations made therein; and
(C) The document has not been filed for purposes of delay or harassment.
(4) A willful violation of subsection (c), shall, to the extent consistent with the policy of the statutes administered by the secretary of state, be a basis for entering an order adverse to the party committing the violation.
(d) Within a reasonable time after receipt of a complaint:
(1) The department staff or a presiding officer shall review the complaint to determine whether any basis exists for administrative action.
(2) If the complaint is insufficient or no basis exists which warrants administrative action, the complaint shall be dismissed and no hearing shall be scheduled on such complaint.
(3) If the staff determines that sufficient basis exists which warrants administrative action, the staff shall petition the secretary of state for relief.
(4) On any complaint, the staff shall temporarily defer any action and refer the subject matter of the complaint to the appropriate agency if a more complete investigation is necessary. The results of the investigation shall be used to determine the necessity of conducting a hearing by the department.
(e) Within a reasonable time after receipt of a petition:
(1) The secretary of state may issue an order either denying or granting the petition or granting in part and denying in part. If any part of the petition is granted, the respondent shall be informed, as part of the hearing notice, of the respondent's right to a hearing.
(2) A petition may include a request for summary action prior to a hearing.
(3) The staff may, sua sponte, petition for relief whenever it has reasonable grounds to believe that a violation of law has occurred, is occurring, or is about to occur.
(f) Notices of hearings shall:
(1) Be prepared and forwarded in a manner which affords interested persons sufficient opportunity to prepare for and deal with the issues to be considered and decided upon at the hearing.
(2) Given in writing and addressed to the address of record of the person being called in for the hearing. The notice shall be prepared on an official form of the department and shall be sent in a sealed envelope through the United States mail, personal services, or by Federal Express or other similar delivery service.
(g) A notice of hearing shall include:
(1) The time, date, and location of the hearing.
(2) The statute which has allegedly been violated and a statement of the legal authority under which the hearing is to be held.
(3) An explicit description of the alleged violation or a copy of the complaint or petition for relief or both the copy of complaint and petition for relief.
(h) Each hearing shall be set for a date as soon as practicable after the complaint has been received and reviewed. The hearing shall be scheduled to allow sufficient and reasonable time for the preparation of the case by both the department and interested parties.
(i) A request for continuance of a hearing shall be made in writing and received by the department, absent exigent circumstances, at least 5 working days prior to the hearing. Exigent circumstances include:
(1) Absence from the jurisdiction;
(2) Serious illness;
(3) Hospitalization;
(4) Death of a family member.
(j) The written request or motion for continuance shall contain the following:
(1) The specific reason or reasons for the request; and
(2) Optional dates and times when all interested parties shall be available.
(k) Each presiding officer may, at any stage of the hearing process, withdraw from a case if the presiding officer has or has had a personal or business relationship with any party, witness, or representative that may hinder such presiding officer from being able to arrive at an impartial decision on the issue or issues, or for any other reason that may interfere with the presiding officer's ability to remain impartial.
(l) Parties shall have the right to:
(1) Appear pro se or be represented by an attorney.
(2) Cross-examine witnesses; and
(3) Present evidence and witnesses on their own behalf.
(m) Except as provided as follows, administrative hearings shall be open to the public:
(1) The presiding officer may, on the presiding officer's own motion or at the request of a party, rule that the public be excluded from a hearing if necessary, pursuant to RSA 91-A:3, II, to protect the interests and rights of the parties to the hearing.
(2) In matters involving sensitive issues, a presiding officer may consult with the office of the attorney general for a ruling on the privacy issue.
(3) Members of the press shall be admitted to the hearing whenever the public is permitted. If the press is present at a hearing, the presiding officer shall brief them, off the record, in the presence of all parties, as to the nature and purpose of the hearing.
(4) In the event a party objects to the attendance of persons not involved in the hearing, the presiding officer shall ascertain the reason for such objection and determine whether the reason given justifies closing the hearing to such persons.
(n) Subject to the laws governing the department of state, and within the general scope of his powers, each presiding officer shall have the authority to:
(1) Schedule and hold hearings.
(2) Administer oaths and affirmations.
(3) Issue subpoenas on behalf of the state.
(4) Determine the order of proof in any proceeding.
(5) Receive relevant evidence and rule on offers of proof in hearings.
(6) Take judicial notice of any facts which are of common knowledge and general notoriety.
(7) Take, or cause to be taken, depositions.
(8) Regulate and control the course of an administrative hearing.
(9) Hold conferences for the settlement or simplification of issues, or for obtaining stipulations as to issues of fact or proof by consent of the parties.
(10) Dispose of procedural requests, including adjournments or continuances at the request of the parties or on the presiding officer's own motion.
(11) Interview and examine witnesses and parties as the case may require.
(12) Direct parties to appear at hearings.
(13) Consider and evaluate the facts and evidence on the record in making findings of fact and conclusions of law and dispositions.
(14) Determine credibility or weight of evidence in making findings of fact and conclusions of law.
(15) Render oral and written decisions, reports, or recommendations as authorized by statute.
(16) Take any action in a proceeding necessary to conduct and complete the case, consistent with applicable statutes, and precedents.
(o) During any proceeding, the secretary of state shall, upon motion or upon his own motion, direct all parties to attend an informal conference to aid in the disposition of the proceeding. Such conferences:
(1) May be recorded unless all parties wish to discuss possible settlements off the record. Such recordings shall be part of the record.
(2) Shall be held, in addition to settlement possibilities, to consider:
(A) Possible simplification of the issues.
(B) Possible amendments to the pleadings.
(C) Possible admissions of fact, admissions of documents, or other stipulations which might avoid unnecessary proof.
(D) The identification and possible limitations on the number of witnesses.
(E) Possible changes to the method of proceeding or hearing schedule which would otherwise be applicable.
(F) The distribution of written testimony, if any, and exhibits to the parties.
(G) Possible consolidation of the examination of witnesses by the parties.
(H) Any other matters which might contribute to the prompt, orderly, and fair conduct of the proceeding.
(p) A prehearing conference or other informal conference shall be conducted in person or, with the consent of the parties, shall be conducted by means of electronic communications.
(q) The presiding officer shall cause the administrative hearing to be electronically recorded. Such recording shall be made available, upon written request by a party and upon a fee sufficient to reimburse the full cost of providing the tape, or a true and accurate copy of such tape or tapes. A party may request, in writing, a transcript of the hearing but shall first pay the full costs for such transcription as determined by the secretary of state.
(r) In the event there is a clear dispute of facts between the parties in which credibility of testimony will determine the outcome of the hearing, the presiding officer on his own motion or that of a party, may sequester witnesses until they are called to testify.
(s) In any administrative hearing in which administrative action affecting the rights or privileges of any party may be taken, an oath or affirmation shall be administered by the presiding officer to each witness prior to receiving testimony, provided, however, that if a witness asserts an objection to the taking of an oath for religious or other related reasons, an affirmation shall be administered. Once a witness has been sworn at any hearing, it shall not be necessary to swear the witness again for subsequent testimony on the same day and in the same case. The record of the proceeding shall indicate that a person was recalled to testify and reminded that such person was still under oath or affirmation.
(t) Motions shall be in written form unless presented at the hearing. Written motions shall be included in the record of the proceeding and filed together with the case file. Oral motions shall be recorded in full in any transcript of the proceeding or, at the discretion of the presiding officer, noted in the minutes of the proceeding and submitted in written form within a reasonable time. A presiding officer may rule upon a motion when made or may defer decision until a later time in the hearing, or until after the conclusion of the hearing.
(u) Administrative hearings shall not be bound by common law or statutory rules of evidence, nor by technical or formal rules of procedure. All relevant, material, and reliable evidence shall be admissible. Such evidence may include, but shall not be limited to, depositions, affidavits, official documents, and testimony of witnesses. Provided, however, the presiding officer may, in the presiding officer's discretion, exclude any irrelevant, immaterial, unreliable, or unduly cumulative or repetitious evidence. Applicable statutory and constitutional provisions and immunities requiring exclusion of evidence in civil proceedings shall be recognized, provided, however, that nothing contained herein shall prohibit a party from waiving such party's privilege or immunity.
(v) Within a reasonable time after the hearing, the presiding officer shall issue a written decision stating the action to be taken by the department and may set forth findings of fact, conclusions of law, and disposition. All decisions shall be reached upon the basis of a preponderance of the evidence. The decision of the presiding officer shall be construed as the decision of the secretary of state.
(w) Any party to whom notice has been forwarded pursuant to and in accordance with this section who fails to appear shall have a default judgment rendered against him.
(x) The presiding officer may take judicial notice.
(y) Where the interests of justice will be better served without prejudice to the substantial rights of any party, a presiding officer may sever one case from another or may consolidate 2 or more cases, preserving to all parties the right of appeal from the single or several decisions rendered.
(z) Once a hearing notice has been issued commencing an adjudicatory proceeding, no party shall communicate with the presiding officer or the secretary of state concerning the merits of the case except upon notice to all parties nor shall any party cause another person to make such communications.
(aa) Within 30 days after a final decision, any party may file a motion for reconsideration which shall serve as a petition for rehearing under RSA 541. No distinctions shall be made between the terms "reconsideration" and "rehearing." A motion for reconsideration shall:
(1) Identify each error of law, error of reasoning, or erroneous conclusion contained in the final order which the moving party wishes the secretary of state to reconsider.
(2) Concisely state the correct factual finding, correct reasoning, and correct conclusion being advocated.
(3) Include any memorandum of law the petitioner wishes to submit.
(bb) Within 30 days after a final decision, the presiding officer may reconsider, revise or reverse any final action on the presiding officer's own motion. If reconsideration is based upon the existing record, prior notice shall not be given to the parties. If the presiding officer believes further information or argument should be considered, the parties shall be provided with an appropriate notice and opportunity to be heard before any revision is made in the previous action.
(cc) The filing of a motion for reconsideration shall not operate as a stay of any order or decision, but a motion for stay may be combined with a motion for reconsideration.

Legislative History

2015, 273:1, eff. Jan. 1, 2016.