The Evidentiary Issue

CSD relies largely upon the ex parte nature of the EH to support its position that essentially all of the exhibits it tendered should have been received in evidence. The only items CSD concedes were properly excluded are exact duplicates of documents already included in another exhibit that was, or in its view should have been, admitted. CSD argues that even CSD's cover sheets and indexes should have been admitted because they would be "helpful in providing guidance to the Commission."

CSD argues that the respondents' failure to appear and object to any of the tendered evidence operates as a complete waiver of their right to do so. Thus, in CSD's view, anything it offered should have been received automatically. CSD also argues that the ALJ's failure to (1) object to the evidence when offered, and (2) articulate the specific reason for excluding each item that was not admitted deprived CSD of its due process rights. Finally, CSD argues that the ALJ's evidentiary ruling, "more importantly, sends a disturbing signal to the Commission's enforcement program, and to the practice of serving prepared direct testimony on the opposing party. . . . "

CSD's argument overlooks the role performed by the ALJ in Commission proceedings, as well as the specific manner in which ALJ Ryerson carried out his duties in this proceeding. Under Section 311(b) of the Pub. Util. Code the ALJ may examine witnesses and receive evidence under rules that the Commission adopts. In any hearing over which the assigned ALJ presides, (s)he "may receive and exclude evidence offered in the hearing in accordance with the [Commission's Rules]." Rule 58 allows the ALJ at the EH to limit the number of witnesses or the time for testimony upon a particular issue in order to "avoid unnecessary cumulative evidence." Rule 63 allows the ALJ to control the course of the EH; receive evidence; rule upon all motions which do not involve final determination of the proceeding; and "take such other action as may be necessary and appropriate to the discharge of his or her duties, consistent with [controlling statutes and the Rules]."

Rule 64 specifically excuses the ALJ from ordinarily having to comply with technical rules of evidence at the EH, as long as substantial rights of the parties are preserved.¹ Rule 69 states that if matter other than relevant and material matter is embraced in a document offered in evidence, the document will not be received in evidence, but at the discretion of the presiding officer, the relevant and material matter may be read into the record or copies thereof received.

Taken together, these various provisions of the Code and our Rules do not merely afford the ALJ broad discretion to admit or exclude testimony and documentary exhibits, but plainly create a preference for excluding matter which is irrelevant, immaterial, or cumulative. The ALJ must also exercise his or her discretion to ensure basic fairness for all parties who choose not to be present. This may require the ALJ to exercise his or her discretion to exclude evidence which is more prejudicial than probative, even when relevant to a material issue. The assigned ALJ, as the Commission's delegated finder of fact in any proceeding, thus has full authority to create the record for the Commission, as long as the substantial rights of both parties are preserved.

Examination of the matter ALJ Ryerson received for the record and that which he excluded reveals that the latter was rationally selected for the reasons he had advised CSD's counsel throughout the course of the EH: it was irrelevant, cumulative, or highly prejudicial to the respondent. Although the respondent was not present to object, this fact alone did not give CSD free license to have every potentially relevant item of evidence received.

The record before us is a body of evidence which fairly and rationally supports the result we have reached in our order. Not only was the respondents' right to a fair hearing safeguarded, but the substantial right of CSD to present relevant, material evidence in support of its case has also been preserved. We will not disturb ALJ Ryerson's Ruling on the admission of CSD's evidence.²