Motions

(1) Scope. (a) This rule applies to all motions in a contested case proceeding. Motions in a contested case before the administrative judge shall be filed with the APD with a copy certified to the Legal Division and other parties. All other motions shall be filed with the Legal Division with a copy certified to the other parties. Each party shall be responsible for filing its own motions and/or pleadings. The department is not responsible for filing another party’s motions or ensuring timely filing with the APD, the commissioner or any court. (b) Parties to a contested case proceeding are encouraged to resolve matters on an informal basis; however, if efforts at informal resolutions fail, any party may request relief in the form of a motion. Motions shall state why the motion should be granted and the grounds upon which movant relies. Each motion which is based on a legal issue shall be accompanied by a memorandum of law. Failure to submit a memorandum in support of a motion will result in the striking of the motion. (c) Parties to a contested case proceeding should bring matters to the attention of the administrative judge and opposing parties before a hearing on the merits in order to avoid delay at the hearing. Certain motions, set out in subparagraph (3)(b) of this Rule, must be made at a particular time. If there is inadequate prior notice of a motion, then the administrative judge shall grant a continuance to the non-moving party if to proceed would prejudice the non-movant’s case. (2) Rulings and Interlocutory Appeals. (a) All decisions on motions shall be made by the administrative judge and shall be reviewable on interlocutory appeal to the commissioner. (b) Interlocutory appeals to the commissioner shall be accompanied by a memorandum of facts and law. (c) This Rule does not preclude the administrative judge from convening a hearing on motions or converting a prehearing conference to a hearing at any time pursuant to T.C.A. § 4-5-306(b) to consider any question of law. Per T.C.A. § 40-33-209(c), all hearings shall be recorded. (3) Time Limits. (a) A party may file a written response to any motion within seven (7) days of the date the motion was filed. Motions shall be submitted for disposition after responses are filed or after the expiration of time for filing such response, unless oral argument is granted. (b) Certain motions shall be made in writing at least ten (10) days prior to a hearing on the merits. These motions are: 1. Motions to suppress evidence for any reason, 2. All discovery motions, 3. Motions asserting an affirmative defense, 4. Motions for the testimony of a departmental keeper of the record, and THE RULES OF PROCEDURE FOR ASSET FORFEITURE HEARINGS CHAPTER 1340-02-02 5. Motions for the testimony of a toxicologist. Failure to file a motion timely will result in the striking of the motion. (4) Oral Argument. (a) A party may request oral argument on a motion by stating in the caption of a motion underneath the docket number: “Oral Argument Requested.” Oral argument may be unnecessary and will be granted at the discretion of the administrative judge. If oral argument is requested, the motion may be argued electronically per T.C.A. § 4-5-312. (5) Affidavits; Briefs and Supporting Statements. (a) Motions and responses thereto shall be accompanied by all supporting affidavits and briefs or supporting statements. All motions and responses thereto shall be supported by affidavits for facts relied upon which are not of record or which are not subject to official notice. Affidavits shall set forth only facts which are admissible in evidence under T.C.A. § 4-5-313, and to which the affiants are competent to testify. (b) In the discretion of the administrative judge, a party may be required to submit additional briefs or supporting statements pursuant to a schedule established by the administrative judge. (c) Affidavits shall be admitted into evidence pursuant to T.C.A. § 4-5-313 (2). (6) Disposition of Motions; Drafting the Order. (a) The administrative judge shall render a decision on the motion by issuing either a written order or a verbal ruling on the record. The administrative judge may instruct the prevailing party to prepare and submit an order. If the ALJ does not intend to issue a written order, the ALJ shall state such intention on the record and the date of the record shall be the effective date of such order. (b) The administrative judge shall file the order in the Administrative Procedures Division and serve the order upon the parties.