IN THE OFFICE OF ADMINISTRATIVE HEARINGS MAGELLAN HEALTH ... · in the office of administrative...

IN THE OFFICE OF ADMINISTRATIVE HEARINGS ) MAGELLAN HEALTH SERVICES OF ) ARIZONA, INC. and MAGELLAN ) COMPLETE CARE OF ARIZONA, INC., ) ) Appellants, ) ) vs. ) No. 13F-006-ADM ) ARIZONA DEPARTMENT OF HEALTH ) SERVICES, ) ) Respondent, ) ) and ) ) MERCY MARICOPA INTEGRATED CARE, ) ) and ) ) ARIZONA HEALTH CARE COST ) CONTAINMENT SYSTEM, ) ) Intervenors. ) ___________________________________) BEFORE: THE HONORABLE DIANE MIHALSKY, JUDGE REPORTER'S TRANSCRIPT OF PROCEEDINGS Volume 8 Pages 1744 through 1771 Phoenix, Arizona September 27, 2013 8:17 a.m. Prepared by: Meri Coash, RMR, CRR Certified Realtime Reporter (Copy) Certified Reporter #50327

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1 I N D E X 2 3 4 E X H I B I T S 5 MMIC EXHIBITS 6 NO. DESCRIPTION ID EVD 7 10 Magellan ADOA Appeal 1750 8 34 MMIC Amended & Restated Articles of 1751 Incorporation 9 49 Articles of Amendment 17501011 MAG EXHIBITS12 NO. DESCRIPTION ID EVD13 58 MAG Common Interest Agreement 175014 379 090913 SHCD BOD Results - special - 1750 MMIC1516171819202122232425

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1 A P P E A R A N C E S 2 On Behalf of the Appellant Magellan Health Service of Arizona, Inc., and Magellan Complete Care of 3 Arizona, Inc.: RIDENOUR, HIENTON & LEWIS, PLLC 4 By: John P. Kaites, Esq. David G. Derickson, Esq. 5 Patricia A. Premeau, Esq. Calvin L. Raup, Esq. 6 Damien Meyer, Esq. Meaghan Kramer, Esq. 7 201 North Central Avenue Suite 3300 8 Phoenix, Arizona 85004 602-254-9900 9 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] On Behalf of the Respondent Arizona Department of13 Health Services: OFFICE OF THE ARIZONA ATTORNEY GENERAL14 By: Kevin D. Ray, Esq. Laura T. Flores, Esq.15 Gregory Honig, Esq. 1275 West Washington Street16 Phoenix, Arizona 85007 602-542-823817 [email protected] [email protected] [email protected] On Behalf of Arizona Health Care Cost Containment System:20 JOHNSTON LAW OFFICES, PLC By: Logan T. Johnston, III, Esq.21 1402 East Mescal Street Phoenix, Arizona 8502022 602-452-0615 [email protected]

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1 2 A P P E A R A N C E S (Continued) 3 On Behalf of the Intervenor Mercy Maricopa Integrated Care: 4 COPPERSMITH SCHERMER & BROCKELMAN, PLC By: Andrew S. Gordon, Esq. 5 Roopali Desai, Esq. 2800 North Central Avenue 6 Suite 1200 Phoenix, Arizona 85004 7 602-224-0999 [email protected] 8 [email protected] 9 and10 SNELL & WILMER, LLP By: Brett W. Johnson, Esq.11 Michael T. Liburdi, Esq. One Arizona Center12 400 East Van Buren Street Suite 190013 Phoenix, Arizona 85004 602-382-600014 [email protected] [email protected] and16 PERKINS COIE, LLP17 By: Paul F. Eckstein, Esq. 2901 North Central Avenue18 Suite 2000 Phoenix, Arizona 8501219 602-351-1800 [email protected] Also Present: Kym Derus22232425

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1 TRANSCRIPT OF PROCEEDINGS 2 JUDGE MIHALSKY: We're on the record. 3 It is 8:17 a.m. on September 27th, 2013. 4 This is the continued hearing -- or, the further hearing 5 in case number 13F-006-ADM. That is Magellan Health 6 Services of Arizona, Inc., and Magellan Complete Care of 7 Arizona, Inc., the appellants, versus Arizona Department 8 of Health Services, the respondent, and Mercy Maricopa 9 Integrated Care and Arizona Health Care Cost Containment10 System, the intervenors.11 My name is Diane Mihalsky. I'm the12 administrative law judge who has been conducting the13 hearing in this matter.14 For the appearances, let's start on my right15 today.16 For MMIC?17 MR. GORDON: Thank you, Your Honor. Andy18 Gordon, Roopali Desai, Brett Johnson, Mike Liburdi, Paul19 Eckstein, and Kym Derus for MMIC.20 MR. KAITES: Your Honor, John Kaites for21 Magellan, along with Patty Premeau, Meaghan Kramer, Cal22 Raup, Dave Derickson, and --23 MR. MEYER: Damien Meyer.24 MR. KAITES: Damien Meyer.25 MR. MEYER: Thanks, John.

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1 MR. GORDON: Isn't that like on the Academy 2 Awards when they're rattling off who they're thankful for? 3 MS. PREMEAU: They always forget the most 4 important one. 5 JUDGE MIHALSKY: Right. 6 MR. RAY: Good morning, Judge. Kevin Ray, 7 Laura Flores, and then Greg Honig. 8 MR. HONIG: Thanks. 9 MR. JOHNSTON: Just Logan Johnston for10 AHCCCS, Your Honor.11 JUDGE MIHALSKY: Thank you very much.12 When we broke yesterday, we -- well, I guess13 we recessed yesterday -- Magellan had completed its14 redirect examination of Dr. Clarke and indicated that15 Dr. Clarke may be its last witness.16 MR. KAITES: Yes, Your Honor. We would at17 this time before closing our case -- or, resting our case18 ask for the admission of a number of exhibits. We've19 talked to counsel on this request, and we believe that20 there's no objection. First exhibit is MAG 58. We would21 offer that into evidence.22 MR. GORDON: Your Honor -- Your Honor, can23 you pull up the screen?24 JUDGE MIHALSKY: Oh.25 MR. KAITES: Andy, are you going to agree?

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1 MR. GORDON: Yeah, I am. 2 No objection, Your Honor. 3 JUDGE MIHALSKY: MAG 58 is admitted. 4 MR. KAITES: Thank you, Your Honor. 5 The next exhibit we would offer into 6 evidence is Magellan -- or, MAG 379. 7 JUDGE MIHALSKY: Objections? 8 MR. GORDON: No objection to that, Your 9 Honor.10 JUDGE MIHALSKY: MAG 379 is admitted.11 MR. KAITES: The next exhibit, Your Honor,12 we would offer is MMIC 10.13 MR. GORDON: No objection, Your Honor.14 JUDGE MIHALSKY: MMIC 10 is admitted.15 MR. KAITES: The next exhibit that we would16 offer into evidence is MMIC 49.17 MR. GORDON: No objection, Your Honor.18 JUDGE MIHALSKY: MMIC 49 is admitted.19 MR. KAITES: And the final exhibit we would20 offer, Your Honor, is MMIC 34.21 MR. GORDON: No objection.22 JUDGE MIHALSKY: I marked the wrong line.23 MMIC 39 and the other one was --24 MR. KAITES: Sorry, Your Honor. Is MMIC 49.25 JUDGE MIHALSKY: Okay. Oh, you didn't --

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1 MR. KAITES: I didn't do it sequentially. 2 JUDGE MIHALSKY: I got confused there. 3 MR. KAITES: MMIC 49 and MMIC 34. 4 MR. RAY: 49 is what? 5 MR. KAITES: The second amended articles. 6 JUDGE MIHALSKY: MMIC 34 is also admitted. 7 MR. KAITES: With that, Your Honor, we -- 8 Magellan would rest. 9 JUDGE MIHALSKY: Does the Arizona Department10 of Health Services plan to present any witnesses or11 introduce exhibits?12 MR. RAY: Judge, we have already had six13 department-related witnesses testify in this matter. The14 department does not intend to put on any additional15 witnesses or add any additional exhibits.16 JUDGE MIHALSKY: MMIC?17 MR. GORDON: No.18 JUDGE MIHALSKY: No more witnesses? No19 exhibits?20 MR. ECKSTEIN: Exhibits?21 MR. GORDON: None.22 JUDGE MIHALSKY: Thank you.23 MR. GORDON: I'm trying to be brief.24 JUDGE MIHALSKY: You're being very brief25 this morning. Good job.

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1 Mr. Johnston, AHCCCS? 2 MR. JOHNSTON: No witnesses, no exhibits. 3 JUDGE MIHALSKY: Well -- 4 MS. PREMEAU: We would like to reserve our 5 right for rebuttal, of course, though. 6 JUDGE MIHALSKY: Well, of course. 7 I guess that brings us up to what happens 8 next. The parties yesterday indicated they would be 9 discussing a stipulation for post-hearing scheduling of10 submission of proposed findings of fact, conclusions of11 law, and possibly written closing arguments. The parties12 do have an option to make oral closing argument today, but13 I had assumed that you probably wouldn't.14 MR. KAITES: Your Honor, what we would15 prefer to do, from Magellan's perspective is -- and we've16 discussed and have some agreement on some of the parts of17 what I'm about to tell you and some we don't -- with18 regards to the filing of our memorandum and proposed19 findings of fact and conclusions of law, we would -- we20 would recommend, Your Honor, that we do that21 simultaneously. We have yet to agree on a date, so we22 would ask your guidance on that. Followed by a23 simultaneous filing of responses and then reserve closing24 argument for after that period of time. And Magellan25 would request that that be in the form of a hearing in

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1 which we could verbally or orally present as well as in 2 written form -- I'm sorry, orally present our closing 3 argument. 4 JUDGE MIHALSKY: In lieu of written closing 5 argument? 6 MR. KAITES: Yes, Your Honor. 7 MR. GORDON: No. 8 MS. PREMEAU: No, no. In addition. 9 MR. KAITES: In addition to written. I'm10 sorry.11 JUDGE MIHALSKY: Okay.12 MR. RAY: Now I'm confused.13 JUDGE MIHALSKY: So to be clear on this,14 Mr. Kaites, what you are suggesting is that the parties15 simultaneously file their proposed findings of fact and16 conclusions of law and that they also be given an17 opportunity to simultaneously file a response to their18 opponents' findings of fact and conclusions of law19 followed by oral closing argument, followed by written20 closing argument?21 MR. KAITES: Your Honor, maybe I'm a little22 confused here.23 JUDGE MIHALSKY: It may be me.24 MR. KAITES: Well, it's my understanding25 that -- that the -- that our memorandums will argue our

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1 positions, that -- that our responses will argue our 2 positions, and then what I would like to have is an 3 opportunity then to do closing arguments live in front of 4 Your Honor. 5 JUDGE MIHALSKY: Okay. Let me clarify what 6 my -- What I allowed the parties to do was to submit 7 proposed findings of fact and conclusions of law, which, 8 candidly, in a hotly contested case such as this one, 9 generally is not -- usually is not that helpful to me10 simply because the parties -- this is an adversarial11 process, and the parties have been zealously representing12 their clients' position.13 My job is different. And in a hotly14 contested case, in my experience, the parties have a real15 hard time setting aside their advocacy and providing me16 suggested findings of fact and conclusions of law in -- in17 the objective tone that I need to adopt in my capacity as18 the administrative law judge. Those findings of fact and19 conclusions of law are different than legal argument. And20 right now I'm having a difficult time understanding what,21 if any, the difference would be other than just22 protracting the time I keep the record open, which, as I23 indicated yesterday, for the most part, if the parties24 agree to it, I don't care as long as it doesn't bump up25 against other commitments that I have. Because my intent

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1 is that I will not keep the record open for my own 2 convenience any longer than the 20 days that is allowed in 3 A.R.S. Section 41-1092.08(A), I think. But I want -- I 4 want the time that the record is kept open to be 5 productive, and I don't want the parties to be spending a 6 lot of time drafting submissions that I'm not going to 7 find helpful. 8 MR. KAITES: So, Your Honor -- 9 JUDGE MIHALSKY: So I would like to know10 what exactly all of these submissions -- how they11 differ --12 MR. KAITES: Right.13 JUDGE MIHALSKY: -- and how they're going to14 help me.15 MR. KAITES: Well, Your Honor, what we have16 perceived, I think, collectively, is we would all offer a17 memorandum with our finding of fact and conclusion of law18 that we propose to you, that we would then respond to19 those memorandum and those findings of fact in a period20 shortly after they are filed, and then we would close with21 argument. If our only opportunity to --22 JUDGE MIHALSKY: And if that's the23 agreement, then certainly I will honor that. Is there a24 disagreement on what happens next?25 MR. GORDON: Yeah, in some ways there are.

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1 From MMIC's perspective, we want this record closed in 2 this decision as soon as possible. As the Court's aware, 3 the existence of this proceeding has already delayed the 4 final implementation of this contract, and we think that's 5 to the detriment both of the people of Arizona and to 6 MMIC, obviously, so we want this closed as quickly as 7 possible. 8 When I discussed this yesterday with 9 Mr. Kaites -- and I was probably thinking in Superior10 Court terms and District Court terms, a setting I'm more11 familiar with -- we were talking about simultaneous12 findings and conclusions with whatever appropriate13 supporting memorandum there were and then a simultaneous14 response. My notion on the reason for the response was15 what we discussed yesterday, was there some factual stuff16 in there that was -- we thought inappropriate or they17 thought we had done inappropriate. And at that point, my18 view was that we have briefed this to death. We have19 presented you every argument known to man. I'll probably20 think of a couple more between now and then. And that21 there was no reason to have any oral argument beyond that.22 JUDGE MIHALSKY: Mr. Ray? Do you have any23 opinion on this?24 MR. RAY: Judge, I -- we certainly don't25 want to do any additional work that you don't think would

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1 be helpful. The Department is also anxious to get this 2 into your hands before the end of -- end of October at the 3 latest. And I candidly have no interest in doing an oral 4 closing either. We typically do written closings, if one 5 is requested. To the extent you are concerned about a lot 6 of additional paperwork, perhaps we just -- one suggestion 7 would be just combine into one document the respective -- 8 You know, I'm mindful of Magellan's concern that they 9 are -- it's always three to one, and I think -- I don't10 think it's planned -- panned out that way, but we could11 certainly join with MMIC and AHCCCS and probably do a12 joint filing of some sort, and we -- you know, I don't13 object to any simultaneous response in case it's needed,14 but I'm really at your preference, if -- I don't think15 there's going to be an agreement among all the parties as16 to what we want to file and when we can file it. So I17 think we're going to rely on your direction.18 MR. KAITES: Judge, I think what is helpful19 to you in this process, and if you find that it's not20 helpful, as much as we would like to do an oral closing21 argument, depending on what the timeline is for the three22 filings that I think are going to occur here, we might be23 willing to accede to not doing the oral argument. But I24 would certainly prefer to do that, Judge, in addition to25 the -- to the filings. And some guidance from you, Your

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1 Honor, as to whether or not you allow memorandum with the 2 findings of fact and conclusion of law will be helpful. 3 JUDGE MIHALSKY: I think the memorandum on 4 the findings of fact just references to the record and 5 what has been established in this hearing. Of course in 6 the conclusions of law, I'm going to have to address, at 7 least summarily, some issues that have affected my conduct 8 at this hearing. For example, any arguments that were not 9 raised in the April 3, 2013, protest.10 I'm having a hard time understanding the11 difference between proposed conclusions of law and legal12 argument. I mean, it seems like it's just additional,13 more of the same, you know, except for a possibly14 different format. And I'm pretty good at putting legal15 argument in numbered format, that -- I'm sorry. So I'm16 not real sure that it's -- it adds anything.17 I have my calendar here, and I would like to18 close the record in this matter at least by October 25th,19 2013. And I haven't -- This is the first thing that I20 have done to suit my own convenience -- or, the21 convenience of the Office of Administrative Hearings. The22 reason for that deadline is I start a large water quality23 appeals case of 10 days, electronic, 20 days after that,24 so, yeah, another good time, no doubt.25 So I don't -- If possible -- I mean, I was

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1 a little concerned about that. If possible, I would like 2 to have this matter -- my recommendation off to ADOA 3 before I start that hearing, just so I can give both 4 matters the attention that they deserve. 5 MR. KAITES: Your Honor, may I speak to 6 that? 7 JUDGE MIHALSKY: Yes. 8 MR. KAITES: Obviously, we are -- have to be 9 respectful to all the people next to me and behind me in10 this process because there are 5,000 pages of transcripts11 in this case, and numerous exhibits that have been12 admitted. I intend to have Ms. Premeau, who is the -- has13 done the lion's share of examination in this case, lead14 our team, but she's going to be gone for a week within15 that time period. And so we would ask, Your Honor, for16 additional time to be able to move through this process.17 JUDGE MIHALSKY: Okay. I have considered18 this. I mean, I have the option -- again, I do not want19 my 20 days running during the 10 business days that I'm20 conducting this other hearing.21 And so on timing, Mr. Gordon --22 MR. GORDON: Your Honor --23 JUDGE MIHALSKY: -- do you have any specific24 dates or timeline?25 MR. GORDON: Yes. I did -- I was going to

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60

1 suggest that the parties file their proposed findings and 2 conclusions by October 11th, which is two weeks from now. 3 We were supposed to be in hearing next week -- the 4 trans- -- we had daily transcripts -- which is nowhere 5 close. We've got lots of lawyers involved, and candidly, 6 we just see this as an ongoing effort by Magellan to delay 7 getting this through. Everyone's worked hard. We were 8 supposed to be in hearing next week anyway. We've 9 concluded and I don't see why that's not possible.10 MR. KAITES: Your Honor, in the best11 interest of the State, the Department of Administration12 has stayed these proceedings. The Department of Health13 Services has extended our contract for six months.14 MR. GORDON: Excuse me. That's just not15 correct. It's not --16 JUDGE MIHALSKY: Okay. Well, that's not a17 concern of mine.18 MR. KAITES: But my point is, Your Honor, I19 don't think -- In order for us to be able to put this in20 the most meaningful form for Your Honor's consideration,21 we want to do it right and we want to do it well. You22 know, we would propose, Your Honor -- I've got my calendar23 in front of me -- that we have until October 22nd to file,24 which is the Tuesday, to file the first filing. And then,25 Your Honor, having the second filing on the 25th -- or,

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1 into the next week -- I'm trying to accommodate your 2 schedule, Your Honor. So I would propose -- My team 3 proposed to me the 29th -- 4 JUDGE MIHALSKY: Okay. 5 MR. KAITES: -- for the second filing. 6 JUDGE MIHALSKY: Okay. 7 MR. KAITES: And then finding a date 8 sometime following the 29th to be able to do a close. And 9 if Your Honor prefers a written close over the oral close,10 then we would submit -- ask for time to submit that11 written closing argument as well.12 JUDGE MIHALSKY: Could you tell me what the13 difference is between your written proposed conclusions of14 law and your written closing argument?15 MR. KAITES: Your Honor, I think that -- and16 this is the benefit of having oral closing argument -- it17 allows us to use demonstratives that we would probably not18 be able to adequately include in a written format. The19 demonstrative that I'm looking at right now, that is on20 the board, that Mr. Gordon referred to as my weird21 exhibit, might be one of those exhibits that I would want22 to use in a closing argument but would not be able to put23 in the closing document.24 JUDGE MIHALSKY: Mr. Ray?25 MR. RAY: Your Honor, I think we would be --

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1 Well, I want to honor your request to be done with this by 2 the 25th. And, frankly, the following week doesn't work 3 for me either, so I hope we're done by the 25th. Whether 4 it's one written document, or if the other parties feel 5 strongly they want two written documents, I think we can 6 conclude this in -- by the 25th, do it in either one or 7 two written documents. And my client wishes for this to 8 be -- this matter to be in your hands before the end of 9 the month of October. So your timeline is perfect with10 ours. And whether you want one written or two writtens,11 one giant written document or a written document with a12 short response for both parties, that would be fine with13 us.14 JUDGE MIHALSKY: Mr. Johnston?15 MR. JOHNSTON: Your Honor, my preference16 would have been oral closings today and nothing more, but17 candidly, I don't think my vote counts on these issues.18 So I will defer to the others.19 MR. KAITES: Thank you, Mr. Johnston.20 JUDGE MIHALSKY: Well, your vote does count,21 but your deference is noted.22 MR. KAITES: For the record, Your Honor, his23 vote is only one-third, though, is that right, of a vote?24 JUDGE MIHALSKY: Oh, maybe less than that.25 I don't know. Are we counting legal fire power or -- I

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1 don't know. It's been a long hearing. 2 I'm so sorry. I mean no disrespect, 3 Mr. Johnston. 4 Okay. I don't think -- I think there's so 5 much work that's been done in this matter and so much 6 briefing and I don't think that there have been any real 7 surprises in the testimony. The hearing has gone on less 8 than I anticipated it would. I think at this time it's 9 time to bring it to a close. I will allow the parties to10 submit proposed findings of fact and either proposed11 findings of law or -- I'm sorry, proposed conclusions of12 law or a written closing argument on or before13 October 14th, and that would be midnight.14 MR. RAY: Judge --15 MS. FLORES: That's a holiday.16 JUDGE MIHALSKY: Oh, is that Columbus Day?17 MS. FLORES: Yes.18 JUDGE MIHALSKY: Oh, no wonder I didn't have19 any cases.20 October 15th. So you have a long holiday21 weekend to worry about this. Well, I don't know. I guess22 the State is the only one who --23 MS. PREMEAU: Exactly. State has a long24 holiday.25 JUDGE MIHALSKY: Sorry about that. I'll be

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1 spending that holiday thinking what you're going to file. 2 And it's your choice. Your responses to the 3 proposed findings of fact, if you dispute the 4 interpretation or the inference that your opponent is 5 drawing based on specific exhibits, certainly you can 6 contest that. The response will be due October 29th, 7 which is two weeks later -- or, actually, I mean, I'm not 8 sure you need two weeks for a response. Let's see if I 9 can give you a little more time.10 MR. KAITES: Your Honor?11 JUDGE MIHALSKY: Yeah.12 MR. KAITES: We would prefer, then, to have13 the initial filing on the week of the 21st --14 JUDGE MIHALSKY: Okay.15 MR. KAITES: -- and the response on16 October 29th.17 JUDGE MIHALSKY: Very good.18 MR. RAY: Judge, could I -- since we're19 getting to throw our requests in?20 JUDGE MIHALSKY: Yeah.21 MR. RAY: I would suggest the first22 filing -- is that the 18th? -- the 18th and then the final23 filing on the 25th and be done.24 MR. KAITES: Your Honor --25 JUDGE MIHALSKY: I'm compromising here, and

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1 I'm willing -- I'm not giving up my time I'll be working 2 on this. You know, I just want the final filings to be 3 early in my time so I can give them the consideration that 4 they deserve. 5 Do you want to be heard on this, 6 Mr. Johnston? 7 MR. JOHNSTON: No, Your Honor. 8 JUDGE MIHALSKY: Mr. Gordon, do you have 9 anything to add?10 MR. GORDON: No. So what date is the Court11 now suggesting for the proposed findings --12 JUDGE MIHALSKY: The initial date would be,13 I'm thinking, October 21st, which is a Monday.14 MR. GORDON: Okay.15 JUDGE MIHALSKY: And eight days later, the16 29th, which gives you a weekend to work on any responses.17 And I'll leave it to the parties on the format they put it18 in. I'm not imposing any page limitation except, you19 know, I'm unlikely to study hundreds of pages of20 documents. And so do try to focus on what you consider21 the most important arguments.22 MR. GORDON: Can I ask one technical23 question?24 JUDGE MIHALSKY: Yes.25 MR. GORDON: So in the proposed findings of

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1 fact, obviously we will be referring either to exhibits or 2 transcript pages. Do we need to attach those somehow, or 3 do you already have those? 4 JUDGE MIHALSKY: I will have -- I have 5 copies of all of the exhibits, and I think it's late to be 6 giving me new documents, but I do have a copy of all the 7 exhibits. I also have copies of the transcript that I am 8 able to cut and paste, which are not -- can't be done with 9 what has been posted on the electronic docket. So all I10 want is references and your argument, interpretation,11 summary, however you want to describe it.12 Are there any questions?13 MR. KAITES: And, Judge, will you be14 entertaining an oral closing argument or not?15 JUDGE MIHALSKY: I will not. I have never16 done both. And I think that the written closing,17 especially since you do have a chance to respond, will be18 more useful to me.19 MR. KAITES: Thank you, Your Honor.20 MR. RAY: Thank you for that, Judge. But21 Ms. Flores and I, probably not Mr. Honig, are -- I just22 want to make sure I understand. The dates aren't the23 problem. It's what can be filed.24 JUDGE MIHALSKY: I'm giving you latitude.25 You and the parties are all familiar with Judge Martin's

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1 decision in the CIGNA case. It's been cited to me several 2 times. You can go on the website and look at decisions 3 I've written in other cases, you know, decisions other 4 judges have written in procurement cases. We do have a 5 certain format, although every judge has their own style. 6 That is going to be my -- my work product to ADOA, and 7 that might be helpful. That's what I'm going to be doing. 8 And I will give the parties latitude. You can give me 9 proposed findings of fact that are numbered, as is10 required of my decision by A.R.S. 41-1092.08(A), or with11 respect to the legal arguments, you can put it in that12 numbered format if you want, or you can simply submit a13 legal memoranda. And I realize it's been a long hearing,14 that it's an extensive record, and that this is probably15 not going to be a case that I should limit the parties to16 10 pages, as is my usual practice in other cases,17 different cases.18 MR. RAY: Thank you, Judge.19 JUDGE MIHALSKY: So I will give you20 latitude. And keep in mind the format that I am required21 to follow by statute. And if you want to do, you know,22 the traditional closing legal memoranda kind of brief, I23 will accept that. If you want to do it in, you know,24 something that is conclusions of law, in that format, you25 can do that. I think that, as I stated earlier, your role

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1 is different from mine, and I'm fine with legal memoranda, 2 and I think it might be asking too much to ask you to put 3 aside your advocate's hat, and so I'll give you latitude 4 on that. 5 Mr. Gordon? 6 MR. GORDON: Just a question on the form- -- 7 two questions on the formatting. I understand the 8 proposed findings of fact. I take it that we either -- 9 it's in the disjunctive -- we either do proposed10 conclusions of law or we just give you a legal memorandum,11 we don't do both.12 JUDGE MIHALSKY: Yes. It is in the13 disjunctive. I don't see any point in getting both. I14 really don't.15 MR. GORDON: You said something about the16 normal format you follow. As one who's not here very17 often, is there someplace we can go just look at one that18 you've done --19 JUDGE MIHALSKY: Yes. Yes. You can go to20 the website at the Office of Administrative Hearings at21 www.azoah, and it does have a procedure that's set forth22 that allows you to search decisions by judges. You will23 not find any procurement cases that I have ever heard or24 written because this is my first. And -- but you can find25 other cases I've written, on the format, and you can find

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1 procurement cases written by other judges at the Office of 2 Administrative Hearings, which certainly I will be 3 considering just in terms of format and the kinds of 4 issues. 5 MR. GORDON: Then is the -- Paul's got a 6 good question. Are the responses, then, just a written 7 memo objecting to whatever we saw in the foregoing -- 8 JUDGE MIHALSKY: I would think so. I 9 don't -- That's what I'm expecting. I mean, I -- You10 can respond and object, you know, but not necessarily11 supplement. I mean, it can be along the lines of a12 rebuttal.13 MR. RAY: Okay. That makes it clear.14 MR. KAITES: Final technical --15 JUDGE MIHALSKY: Mr. Kaites?16 MR. KAITES: Final technical question, Your17 Honor. On the 21st and the 29th, what is the time that --18 JUDGE MIHALSKY: Did I say the 21st? Okay.19 Okay. What is the time? Anytime before midnight as long20 as it's date-stamped. We will follow the same practice.21 And I do note that nobody has ever submitted anything at22 11:59 yet.23 MR. JOHNSON: Damien came close, at 11:30.24 JUDGE MIHALSKY: No. I mean, I will be25 looking at what I have and getting a sense of where I am

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1 in questions during the time that you are working on it, 2 so certainly I am going to consider what you submit, but 3 I'm going to try to have a good understanding when I get 4 those documents. 5 Mr. Ray? 6 MR. RAY: Judge, could we ask you to issue a 7 final case management order describing what the parties' 8 responsibilities for filings are and the two dates you've 9 provided?10 MR. DERICKSON: You need it in writing,11 Kevin?12 MR. RAY: Absolutely.13 JUDGE MIHALSKY: I will do that. I am -- I14 am required to put my orders in writing, if possible.15 MR. RAY: Okay. Thank you, Judge.16 JUDGE MIHALSKY: I will do that. And I'm17 also required when I'm holding the record open for the18 submission of post-hearing memoranda to do that in a19 written order.20 MR. KAITES: Thank you, Your Honor.21 MR. GORDON: Thanks, Your Honor.22 JUDGE MIHALSKY: Anything else?23 Good luck.24 With that, we're off the record.25 (The hearing was concluded at 8:55 a.m.)

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1 STATE OF ARIZONA ) 2 COUNTY OF MARICOPA ) 3 I, Meri Coash, hereby certify that the 4 foregoing pages numbered from______to_______, inclusive, 5 constitute a full, true, and accurate record of the 6 proceedings had in the above matter, all done to the best 7 of my skill and ability. 8 DATED this______day of______________, 9 2013.1011 _____________________________12 Meri Coash, CRR #5032713141516171819202122232425

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