Sec. 13a.01.05.04. General Procedures

A. Amendment of Appeal or Other Pleading.

(1) The State Board upon its own initiative or upon the request of a party may order a party to make a more definite statement of the appeal.

(2) A party may amend an appeal or other pleading upon leave of the State Board or by written consent of the other party.

B. Requests to Shorten or Extend Time Requirements.

(1) Upon the written request of a party or on its own initiative, the State Board for good cause shown may shorten or extend the time limitations set forth in this chapter.

(2) The State Board may not extend the time period for filing an appeal from the decision of the local board or for filing an application for reconsideration of a State Board decision except in the case of fraud, lack of notice of the decision, or other extraordinary circumstances.

C. Additional Evidence. If an appellant asks to present additional evidence on the issues in an appeal, and it is shown to the satisfaction of the State Board that the additional evidence is material and that there were good reasons for the failure to offer the evidence in the proceedings before the local board, the State Board may:

(1) Remand the appeal to the local board for the limited purpose of receiving the additional evidence upon conditions the State Board considers proper; or

(2) Receive the additional evidence.

D. Representation of Parties.

(1) A party may be accompanied, represented, and advised by counsel at all stages of an appeal.

(2) A party, or counsel if a party is represented by counsel, shall be responsible for the:

(a) Filing and receipt of motions, memoranda, and responses;

(b) Submission of evidence, examination, and cross-examination of witnesses;

(c) Filing and receipt of exceptions, if applicable; and

(d) Oral argument, if applicable.

(3) In cases with multiple parties, the State Board may request the parties to select one or more lead appellants to file responses and documents on behalf of all appellants and to receive responses and documents on behalf of all appellants.

E. Filing Motions, Memoranda, and Responses.

(1) Motions, memoranda, and responses shall be filed with the State Board with a written certification that copies were furnished to all other parties.

(2) Except as provided in §E(3), (4), and (5) of this regulation, responses to any motion or memorandum shall be filed within 15 days of the filing of the motion or memorandum, and any reply to the response shall be filed within 10 days of the date on which the response is filed.

(3) If the motion, memorandum, or response is provided to the opposing party by mail, 3 days shall be added to the prescribed period for filing a response or reply to the response.

(4) The last day of the period of time prescribed by this chapter shall be included, unless it is a Saturday, Sunday, or a State legal holiday, in which event the period ends on the next day that is not a Saturday, Sunday, or a State legal holiday.

(5) The State Board or its designee may modify the time schedule for the filing of motions, memoranda, and responses upon timely notice to all parties.

(6) Motions, memoranda, and responses shall be no longer than 15 pages, excluding attachments.

(7) Motions, memoranda, and responses may be submitted in electronic format if the party also provides the State Board with a hard copy.

F. Counsel. The State Board may request the Office of the Attorney General to participate or provide legal advice in any appeal as counsel for the State Board.

G. Lack of Notice.

(1) A party who alleges lack of timely notice in a local board or State Board proceeding must file an affidavit with the State Board affirming under oath that the notice at issue was not timely received, the facts that support that affirmation, and that the party was prejudiced as a result.

(2) Failure to submit an affidavit shall result in the State Board declining to consider the claim of lack of notice.

(3) If a party submits an affidavit under §G(1) of this regulation, the opposing party shall bear the burden of demonstrating by a preponderance of the evidence, in the form of affidavits and documents, that the correspondence was timely sent to the correct recipient at the correct address.

(4) If the State Board concludes that there is a dispute of fact concerning whether a party received timely notice, it may refer the case to the Office of Administrative Hearings for proposed findings of fact, conclusions of law, and a proposed decision on the question.