Appeal Process 5

EVIDENTIARY HEARINGS

Continuance of Hearings

After a hearing date has been set, a continuance will not be granted by the board except upon a showing of good cause. A party who desires a continuance shall, immediately upon receipt of a notice of hearing, or as soon thereafter as practicable, file a written motion with the board stating in detail the reasons why a continuance is necessary. The motion shall be filed at least five (5) days prior to the date of hearing. The board may at any time order a continuance upon its own motion.

Place of Hearing

Unless the board determines otherwise, evidentiary hearings shall be held in the board’s offices located at 601 - 57th Street, Charleston, WV  25304.

Conduct of Hearing

All appeal hearings shall be open to the public, and shall be conducted in accordance with West Virginia Code §29A-5 et seq. All parties to a hearing, their legal counsel, and spectators, shall conduct themselves in a respectful manner. Public displays of any kind at hearings shall not be permitted. The board may, at its discretion, recess or continue any hearing in which the parties, legal counsel, witnesses or spectators conduct themselves in a disrespectful, disorderly or contemptuous manner which interferes with or prevents the proper conduct of such hearing.

Stipulations

Written stipulations by the parties to questions of fact may be filed with the board before the hearing of an appeal or may be read into the record at the time the hearing is held.

Testimony at Hearing

Testimony in any hearing before the board will be made on the record, and shall be given under oath.

Presentation

The board shall hear the appeal de novo. Each party will be given an opportunity to make an opening statement. The appellant shall open the hearing and present testimony and offer exhibits that support the notice of appeal. The appellant’s witnesses shall be subject to cross-examination by any other party to the appeal or by the board. At the conclusion of the appellant’s case, the appellee may then present testimony and offer exhibits. After initial presentations have been made, both the appellant and the appellee may present rebuttal evidence on the issues in the case, providing that such evidence is not cumulative, repetitive or immaterial to the case. After the conclusion of the presentation of evidence, the parties will be given the opportunity to present closing arguments.

Exhibits

Any item, including photographs, to be presented as an exhibit shall be separately numbered and in a sufficient number of legible, complete copies to provide one (1) copy to each party as well as one (1) copy to the board and one (1) for the record. All copies shall be distributed upon or prior to request for admission. It is recommended that large maps used for visual presentation be reduced to approximately one-half (½) scale and similarly colored or coded for distribution in lieu of the larger map which shall be for the record. If any map or other document is marked upon or otherwise changed during presentation and testimony, the party submitting the evidence shall correspondingly mark or change each other copy within twenty-four (24) hours of the presentation.

Briefs

In addition to the presentation of oral argument, the board may require the parties to file written briefs. The board may require the filing of briefs before or after the taking of evidence. The parties shall file the original and seven (7) copies of the brief with the secretary of the board, and shall serve a copy of the same on all other parties as required by these procedural rules. The original copy of the brief shall be accompanied by a copy of each decision, treatise, or periodical cited. Leave to file briefs amicus curiae may also be granted by the board.

Proposed Findings of Fact and Conclusions of Law

In accordance with West Virginia Code §29A-5 et seq., prior to the entry of any final order or final decision, any party may propose findings of fact and conclusions of law for the board’s consideration. All such findings of fact and conclusions of law shall be separated as such and shall be set out by numbered paragraph. Unless otherwise ordered by the board, all such proposed findings and fact and conclusions of law shall be filed within fifteen (15) days fo the conclusion of the evidentiary hearing.

Service and Publication of Final Orders

A copy of the final order or decision, together with the board’s findings of fact and conclusion of law, shall be served upon each party and his or her attorney of record, if any, in person or by registered or certified mail. Each final order or decision issued by the board shall be filed with the secretary of state for publication in the state register in accordance with West Virginia Code §29A-2-9.

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