Procedure at Hearing

PURPOSE: This rule states the procedures and rules of evidence to be followed at the hearing. (1) Prehearing Motions. The commissioner or Administrative Hearing Commission may consider any motions to dismiss, motion to vacate, motions for summary judgment, or any other dispositive motions prior to commencement of the hearing on the merits. (2) Evidence. The order in which the evidence will be presented is as follows: (A) The Securities Division shall present its evidence first. The burden of proof in a hearing on the merits in matters relating to an order of the commissioner, or the failure of the commissioner to act, shall be on the Securities Division. The burden of proof for affirmative defenses, including exemptions and exceptions from definition, shall be upon the party claiming the affirmative defense. (B) All witnesses may be cross-examined on any relevant issue even though that matter was not the subject of direct examination and may be impeached regardless of which party first called him/her to testify; (C) Other parties shall then present their evidence; (D) Each party has the right to rebut the evidence presented; (E) The commissioner and Administrative Hearing Commission shall have the authority to administer oaths and affirmations, to rule on the admission or inclusion of evidence, and to take the necessary steps to insure a fair and orderly conduct of the hearing. S/he shall follow section 536.070, RSMo governing admission of evidence in administrative hearings; and (F) The commissioner and Administrative Hearing Commission shall take official notice of all matters of which courts take judicial notice. Technical facts, not judicially cognizable may be officially noted if they are within his/her competence provided that the parties are notified and are given a chance to contest these facts or show that official notice would not be proper. (3) Closing Arguments. All parties may make closing statements. The party with the burden of proof shall have the opportunity for rebuttal argument. AUTHORITY: section 409.6-605, RSMo Supp. 2003.* Original rule filed Aug. 11, 1978, effective Feb. 11, 1979. Rescinded and readopted: Filed Nov. 1, 2001, effective May 30, 2002. Emergency amendment filed Aug. 29, 2003, effective Sept. 12, 2003, expired March 9, 2004. Amended: Filed Aug. 29, 2003, effective Feb. 29, 2004. *Original authority: 409.6-605; RSMo 2003.