What is a 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
affirmation and in the order set by the examiner.
may be submitted if permitted by the rules of evidence. Each party has
the right to ask questions of the witnesses.
are tape 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
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
the case is
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
Can an Appeal be Withdrawn?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withdrawn any time before the scheduled date.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?
individual may represent himself or herself. Individuals may also choose
to be represented by an attorney. Note: Corporations must be
represented by an attorney.
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
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.
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,
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
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.
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
requesting the subpoena must pay the witness fees and costs for serving
How Can I Best Present My Case?
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
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
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
What Happens After the Hearing?
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?
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 and attorney.