Order Of Proceedings

(1) The order of proceedings for the hearing of contested cases is as follows: (a) Prior to a hearing, the administrative judge may confer with the parties to discuss the order of proceedings, admissibility of evidence, number of witnesses and other matters, provided, however, that the administrative judge shall not act as an advocate in any contested case. (b) Hearing is called to order by the administrative judge. THE RULES OF PROCEDURE FOR ASSET FORFEITURE HEARINGS CHAPTER 1340-02-02 (c) The parties, their counsel and the administrative judge introduce themselves for the record. If necessary, the administrative judge gives a brief statement about the nature of the proceedings and the making of legal rulings. (d) The administrative judge states what documents the record contains. (e) The witnesses are sworn. (f) The administrative judge asks the parties if they call for the exclusion of witnesses from the hearing under “the Rule.” If so, the excluded witnesses are instructed not to discuss the case during the pendency of the proceeding. Notwithstanding the exclusion of witnesses, individual parties will be permitted to stay in the hearing room. The seizing agency or any party that is a corporation or other artificial person may have one appropriate individual, other than counsel, who may also be a witness, remain in the hearing room as its representative. (g) Any preliminary motions, stipulations, or agreed orders are entertained. 1. Motions that may be heard at this time include, but are not limited to, a motion to suppress filed at least ten (10) days prior to the date of the hearing, a motion to de-pauperize a claimant, a motion asserting an affirmative defense, and a motion to strike a claim upon the claimant’s lack of standing, and a motion to strike a claim pursuant to T.C.A. § 53-11-201(f)(1). 2. The administrative judge shall rule on a motion to suppress before the contested case proceeds further. If any part of a motion to suppress is granted, the department shall have a short recess to reevaluate its case and to decide whether to proceed. 3. The administrative judge shall rule on a motion to strike a claim for lack of standing and a motion to de-pauperize a claimant before the contested case proceeds further. If the motion to strike is granted, then claimant’s claim shall be dismissed and the property forfeited to the state. If a motion to depauperize is granted, and if the administrative judge finds that the claimant has committed perjury, then the claim may be dismissed; otherwise, the claimant shall be given ten (10) days within which to provide the cost bond. The hearing will then be reset contingent upon a timely cost bond being filed. (h) The parties make opening statements. (i) The Legal Division calls its witnesses and questioning proceeds as follows: 1. Legal Division questions. 2. Claimant cross-examines. 3. Legal Division redirects. 4. Claimant re-cross-examines. 5. Legal Division continues with its witnesses until it concludes its case. (j) Claimant may move to dismiss the department’s case for failure to carry its burden of proof. If Claimant’s motion is granted, the case is concluded. If the Claimant’s motion is not granted, then the case proceeds as set out herein. THE RULES OF PROCEDURE FOR ASSET FORFEITURE HEARINGS CHAPTER 1340-02-02 (k) Claimant proceeds with the case, following the above pattern with the parties switched, until claimant’s case is concluded. (l) Questioning proceeds as long as is necessary to provide all pertinent testimony by all parties. (m) Claimant and the Legal Division shall be allowed to call appropriate rebuttal and rejoinder witnesses with the examination proceeding as set forth in paragraph (i). Rebuttal and rejoinder witness may have heard the testimony of the witness to be rebutted or rejoined, in accordance with Rule 615 of the Tennessee Rules of Evidence. (n) Closing arguments are allowed all parties. (o) If the commissioner is hearing the case, then the parties are informed that a Final Order will be entered and sent to the parties, with appeal rights explained. If an administrative judge hears the case, the parties are informed that an Initial Order will be entered and sent to the parties, with appeal rights explained. Either the commissioner or the administrative judge may make an oral ruling at the conclusion of the contested case proceeding; however, an oral ruling shall be placed into appropriate written form as an order and sent to the parties, with appeal rights explained. 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. (2) Paragraph (1) of this Rule is intended to be a general outline as to the conduct of a contested case proceeding and it is not intended that a departure from the literal form or substance of this outline, in order to expedite or ensure fairness of proceedings, would be in violation of this Rule. In all cases, preliminary motions on suppression, affirmative defenses, standing and motions to strike pursuant to T.C.A. § 53-11-201(f)(1) shall be decided before a hearing proceeds.