residuum rule in Utah

2016Tolman, 818 P.2d at 27 . ¶9 Furthermore, the City’s arguments regarding the Commission’s evidentia-ry rulings touch on hearsay evidence and the application of the “residuum rule.” See Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 10 , 168 P.3d 344 (explaining that hearsay evidence is admissible in administrative hearings but that “[u]nder the residuum rule, findings of fact ... must be supported by a residuum of legal evidence competent in a court of law”) (alteration and omission in original) (citation and internal quotation marks omitted).

2016Tolman, 818 P.2d at 27 . ¶9 Furthermore, the City’s arguments regarding the Commission’s evidentia-ry rulings touch on hearsay evidence and the application of the “residuum rule.” See Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 10 , 168 P.3d 344 (explaining that hearsay evidence is admissible in administrative hearings but that “[u]nder the residuum rule, findings of fact ... must be supported by a residuum of legal evidence competent in a court of law”) (alteration and omission in original) (citation and internal quotation marks omitted).

2007It is also true, however, that "[uJnder the residuum rule, 'findings of fact ... must be supported by a residuum of legal evidence competent in a court of law.'" Mayes, 754 P.2d at 992 (quoting Yacht Club v. Utah Liquor Control Comm'n, 681 P.2d 1224, 1226 (Utah 1984)). "11 We recognize that we have sometimes used imprecise language in the past when talking about the residuum rule.

1996See Yacht Club, 681 P.2d at 1227 ; Industrial Power, 832 P.2d at 479 ; Wagstaff v. Department of Employment Sec., 826 P.2d 1069, 1072 (Utah App.1992); Tolman v. Salt Lake County Attorney, 818 P.2d 23, 32-33 (Utah App.1991).

2020“The residuum rule requires that an administrative [agency’s] findings of fact be supported by a residuum of legal evidence competent in a court of law even if the [agency] has received and considered evidence of a lesser quality.” Aura Spa & Boutique v. Department of Workforce Services, 2017 UT App 152, ¶ 11 , 402 P.3d 813 (quotation simplified). 20180984-CA 23 2020 UT App 51 Onysko v. DEQ ¶38 It was only after the Hearing Officer reviewed in the CSRO Decision DEQ’s evidence offered in support of the contention that Onysko’s conduct negatively impacted productivity and morale that the Hearing

2020“The residuum rule requires that an administrative [agency’s] findings of fact be supported by a residuum of legal evidence competent in a court of law even if the [agency] has received and considered evidence of a lesser quality.” Aura Spa & Boutique v. Department of Workforce Services, 2017 UT App 152, ¶ 11 , 402 P.3d 813 (quotation simplified). 20180984-CA 23 2020 UT App 51 Onysko v. DEQ ¶38 It was only after the Hearing Officer reviewed in the CSRO Decision DEQ’s evidence offered in support of the contention that Onysko’s conduct negatively impacted productivity and morale that the Hearing

2014See Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 8 , 168 P.3d 344 . 13 The Board correctly recognized that hearsay evidence is admissible in administrative hearings, see id. 110, and that findings of fact " 'must be supported by a residuum of legal evidence competent in a court of law.'" (Quoting Wagstaff v. Department of Emp't Sec., 826 P.2d 1069, 1072 (Utah Ct.App.1992).) However, the Board also quoted case law stating that " findings of fact cannot be based exclusively on hearsay evidence." (Quoting Wagstaff, 826 P.2d at 1072 .) RLS argues that the Board did not consi

2014See Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 8 , 168 P.3d 344 . 13 The Board correctly recognized that hearsay evidence is admissible in administrative hearings, see id. 110, and that findings of fact " 'must be supported by a residuum of legal evidence competent in a court of law.'" (Quoting Wagstaff v. Department of Emp't Sec., 826 P.2d 1069, 1072 (Utah Ct.App.1992).) However, the Board also quoted case law stating that " findings of fact cannot be based exclusively on hearsay evidence." (Quoting Wagstaff, 826 P.2d at 1072 .) RLS argues that the Board did not consi

1988Kehl v. Schwendiman, 735 P.2d 413, 415 (Utah Ct.App.1987).

1987Kehl v. Schwendiman, 735 P.2d 413, 415 (Utah App.1987).

2007In Mayes, then, we should have clarified that findings of fact "cannot be based exclusively on inadmissible hearsay evidence" because admissible hearsay evidence is "evidence competent in a court of law." This point was explicitly made in Industrial Power Contractors v. Industrial Commission, 832 P.2d 477 (Utah Ct.App.1992), where we pointed out that the elaim-ant's medical records, although hearsay, "would have been admissible in a court of law . as an express exception to the hearsay rule," id. at 479 , and that "[the residuum rule requires that findings be supported by a residuum of legally

2007In Mayes, then, we should have clarified that findings of fact "cannot be based exclusively on inadmissible hearsay evidence" because admissible hearsay evidence is "evidence competent in a court of law." This point was explicitly made in Industrial Power Contractors v. Industrial Commission, 832 P.2d 477 (Utah Ct.App.1992), where we pointed out that the elaim-ant's medical records, although hearsay, "would have been admissible in a court of law . as an express exception to the hearsay rule," id. at 479 , and that "[the residuum rule requires that findings be supported by a residuum of legally

2007It is also true, however, that "[uJnder the residuum rule, 'findings of fact ... must be supported by a residuum of legal evidence competent in a court of law.'" Mayes, 754 P.2d at 992 (quoting Yacht Club v. Utah Liquor Control Comm'n, 681 P.2d 1224, 1226 (Utah 1984)). "11 We recognize that we have sometimes used imprecise language in the past when talking about the residuum rule.

1992Davis, Administrative Law Treatise 16.6 (1980), “this Court has reaffirmed Utah's position that the residuum rule applies to administrative proceedings.” Mayes v. Department of Employment Sec., 754 P.2d 989, 992 (Utah App. 1988); Williams v. Schwendiman, 740 P.2d 1354, 1356 (Utah App.1987). 3 .

2019Here the Board declined to base its findings of fact on hearsay evidence alone. ¶14 " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." InnoSys, Inc. v. Department of Workforce Services , 2011 UT App 169 , ¶ 9, 257 P.3d 489 (quoting Utah R.

2019Here the Board declined to base its findings of fact on hearsay evidence alone. ¶14 " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." InnoSys, Inc. v. Department of Workforce Services , 2011 UT App 169 , ¶ 9, 257 P.3d 489 (quoting Utah R.

2016Tolman, 818 P.2d at 27 . ¶9 Furthermore, the City’s arguments regarding the Commission’s evidentia-ry rulings touch on hearsay evidence and the application of the “residuum rule.” See Prosper, Inc. v. Department of Workforce Servs., 2007 UT App 281, ¶ 10 , 168 P.3d 344 (explaining that hearsay evidence is admissible in administrative hearings but that “[u]nder the residuum rule, findings of fact ... must be supported by a residuum of legal evidence competent in a court of law”) (alteration and omission in original) (citation and internal quotation marks omitted).

1996See Yacht Club, 681 P.2d at 1227 ; Industrial Power, 832 P.2d at 479 ; Wagstaff v. Department of Employment Sec., 826 P.2d 1069, 1072 (Utah App.1992); Tolman v. Salt Lake County Attorney, 818 P.2d 23, 32-33 (Utah App.1991).

1992Davis, Administrative Law Treatise 16.6 (1980), “this Court has reaffirmed Utah's position that the residuum rule applies to administrative proceedings.” Mayes v. Department of Employment Sec., 754 P.2d 989, 992 (Utah App. 1988); Williams v. Schwendiman, 740 P.2d 1354, 1356 (Utah App.1987). 3 .

1992Davis, Administrative Law Treatise 16.6 (1980), “this Court has reaffirmed Utah's position that the residuum rule applies to administrative proceedings.” Mayes v. Department of Employment Sec., 754 P.2d 989, 992 (Utah App. 1988); Williams v. Schwendiman, 740 P.2d 1354, 1356 (Utah App.1987). 3 .

2020“Questions regarding whether an administrative agency has afforded a petitioner due process in its hearings are questions of law,” Lopez v. Career Service Review Board, 834 P.2d 568, 571 (Utah Ct. App. 1992), and fall within the purview of Utah Code section 63G­4­403(4)(d), meaning they are reviewed without deference, for correctness. 20180984-CA 22 2020 UT App 51 Onysko v. DEQ ¶36 Onysko’s last argument implicates the residuum rule 15 by assailing several of the Hearing Officer’s findings of fact on the ground that they are exclusively based on hearsay.

2020“Questions regarding whether an administrative agency has afforded a petitioner due process in its hearings are questions of law,” Lopez v. Career Service Review Board, 834 P.2d 568, 571 (Utah Ct. App. 1992), and fall within the purview of Utah Code section 63G­4­403(4)(d), meaning they are reviewed without deference, for correctness. 20180984-CA 22 2020 UT App 51 Onysko v. DEQ ¶36 Onysko’s last argument implicates the residuum rule 15 by assailing several of the Hearing Officer’s findings of fact on the ground that they are exclusively based on hearsay.

2020“The residuum rule requires that an administrative [agency’s] findings of fact be supported by a residuum of legal evidence competent in a court of law even if the [agency] has received and considered evidence of a lesser quality.” Aura Spa & Boutique v. Department of Workforce Services, 2017 UT App 152, ¶ 11 , 402 P.3d 813 (quotation simplified). 20180984-CA 23 2020 UT App 51 Onysko v. DEQ ¶38 It was only after the Hearing Officer reviewed in the CSRO Decision DEQ’s evidence offered in support of the contention that Onysko’s conduct negatively impacted productivity and morale that the Hearing

1992IPC cites Roberts v. Hollocher, 664 F.2d 200, 204 (8th Cir.1981) for the proposition that medical records, as a general rule, are admissible in a court of law as competent evidence under Rule 803(4) only if a party can satisfy the following two-prong foundational test: “(1) is declarant’s motive in making the statements consistent with' a desire to promote treatment? and (2) is it reasonable for the physician to rely on the information in his diagnosis or treatment?” IPC argues that the residuum rule requires the Commission to make the foregoing factual findings based on a residuum of competen

1987See Sandy State Bank v. Brimhall, 636 P.2d at 486 .