In Schultz, 372 N.W.2d at 892, we also said an agency may even reject a hearing officer's recommendation on findings of the credibility of contradictory witnesses. Compare Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D. 1984) (under NDRCivP 63, if successor judge is not satisfied with findings, conclusions and decision of predecessor judge, successor judge is limited to granting new trial); Holzer v. Jochim, 557 N.W.2d 57, 58-59 (N.D. 1996) (successor judge abused discretion in redeciding the merits of case tried before predecessor judge without affording the parties an opportunity to retry case). As Holzer at 59 explained, a major tenet of due process anticipates that a party receive adequate notice and fair opportunity to be heard by the decision maker.
E.g., Faris v. Rothenberg, 648 P.2d 1089, 1092 (Colo. 1982); Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D. 1984). One commentator has suggested that a successor judge consider four factors: 1) the point to which the trial has proceeded; 2) the complexity of the trial; 3) the importance of witness credibility; and 4) the parties' good faith.
Because the case is being remanded for a retrial of all factual issues, we deem it appropriate to grant the request. See Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Therefore, we remand the case for a new trial before a judge appointed under Administrative Rule 15.
Later, we limited our holding in Krohnke to situations where all of the evidence was documentary in nature. In Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984), and McCroskey v. Fettes, 336 N.W.2d 645 (N.D. 1983), we held that, where some witnesses testified in court and other testimony was admitted by deposition, the trial court's ability to observe the demeanor of the witnesses who testified in person called for application of the "clearly erroneous" standard. Any possible doubt about application of the "clearly erroneous" standard in this case has been clarified by the amendment to the Explanatory Note for NDRCivP 52, effective January 1, 1986.