227.42 Annotation
Sub. (1) (d) provides authority for agencies to develop appropriate summary disposition procedures if there are no disputes of material fact. Balele v. Wisconsin Personnel Commission,
223 Wis. 2d 739,
589 N.W.2d 418 (Ct. App. 1998),
98-1432.
227.42 Annotation
When an ALJ's decision did not provide notice of the 30-day time period under s. 227.53 (1) (a) 2. for petitioning for judicial review in a contested case, the 6-month default limitation adopted under Hedrich v. Board of Regents, 2001 WI App. 228, applied. Habermehl Electric, Inc. v. DOT, 2003 WI App 39,
260 Wis. 2d 466,
659 N.W.2d 463,
02-1573.
227.42 Annotation
Milwaukee Metropolitan Sewerage District v. DNR: Expanding the scope of state agency actions covered by contested case hearings. 1986 WLR 963.
227.43
227.43
Division of hearings and appeals. 227.43(1)
(1) The administrator of the division of hearings and appeals in the department of administration shall:
227.43(1)(a)
(a) Serve as the appointing authority of all hearing examiners under
s. 230.06.
227.43(1)(b)
(b) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of natural resources and which is not conducted by the secretary of natural resources.
227.43(1)(bg)
(bg) Assign a hearing examiner to preside over any hearing or review under
ss. 84.30 (18),
84.305,
84.31 (6) (a),
85.013 (1),
86.073 (3),
86.16 (5),
86.195 (9) (b),
86.32 (1),
101.935 (2) (b),
101.951 (7) (a) and
(b),
114.134 (4) (b),
114.135 (9),
114.20 (19),
175.05 (4) (b),
194.145 (1),
194.46,
218.0114 (7) (d) and
(12) (b),
218.0116 (2),
(4),
(7) (a),
(8) (a) and
(10),
218.0131 (3),
218.11 (7) (a) and
(b),
218.22 (4) (a) and
(b),
218.32 (4) (a) and
(b),
218.41 (4),
218.51 (5) (a) and
(b),
341.09 (2m) (d),
342.26,
343.69 and
348.25 (9).
227.43(1)(br)
(br) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of transportation and which is not conducted by the secretary of transportation.
227.43(1)(bu)
(bu) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of health services and that is not conducted by the secretary of health services.
227.43(1)(by)
(by) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of children and families under
ch. 48 or
subch. III of ch. 49 and that is not conducted by the secretary of children and families.
227.43(1)(c)
(c) Supervise hearing examiners in the conduct of the hearing and the rendering of a decision, if a decision is required.
227.43(1)(d)
(d) Promulgate rules relating to the exercise of the administrator's and the division's powers and duties under this section.
227.43(1g)
(1g) The administrator of the division of hearings and appeals shall establish a system for assigning hearing examiners to preside over any hearing under this section. The system shall ensure, to the extent practicable, that hearing examiners are assigned to different subjects on a rotating basis. The system may include the establishment of pools of examiners responsible for certain subjects.
227.43(1m)
(1m) Upon the request of an agency that is not prohibited from contracting with a 3rd party for contested case hearing services, the administrator of the division of hearings and appeals in the department of administration may contract with the agency to provide the contested case hearing services and may assign a hearing examiner to preside over any hearing performed under such a contract.
227.43(2)(a)(a) The department of natural resources shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (b) after the department of natural resources is notified that a hearing on the matter is required.
227.43(2)(b)
(b) The department of transportation shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (br) after the department of transportation is notified that a hearing on the matter is required.
227.43(2)(c)
(c) The department of health services shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (bu) after the department of health services is notified that a hearing on the matter is required.
227.43(2)(d)
(d) The department of children and families shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (by) after the department of children and families is notified that a hearing on the matter is required.
227.43(3)(a)(a) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of natural resources by a hearing examiner under this section. The fee shall cover the total cost of the services less any costs covered by the appropriation under
s. 20.505 (4) (f).
227.43(3)(b)
(b) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of transportation by a hearing examiner under this section. The fee shall cover the total cost of the services less any costs covered by the appropriation under
s. 20.505 (4) (f).
227.43(3)(c)
(c) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of health services by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.
227.43(3)(d)
(d) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of children and families by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.
227.43(3)(e)
(e) The administrator of the division of hearings and appeals may set the fees to be charged for any services contracted for under
sub. (1m).
227.43(4)(a)(a) The department of natural resources shall pay all costs of the services of a hearing examiner assigned to the department under
sub. (1) (b), according to the fees set under
sub. (3) (a).
227.43(4)(b)
(b) The department of transportation shall pay all costs of the services of a hearing examiner assigned under
sub. (1) (bg) or assigned to the department under
sub. (1) (br), according to the fees set under
sub. (3) (b).
227.43(4)(c)
(c) The department of health services shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1) (bu), according to the fees set under
sub. (3) (c).
227.43(4)(d)
(d) The department of children and families shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1) (by), according to the fees set under
sub. (3) (d).
227.43(4)(e)
(e) The agency contracting out for contested case hearing services under
sub. (1m) shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1m), according to the fees set under
sub. (3) (e).
227.43 Cross-reference
Cross-reference: See also
HA, Wis. adm. code.
227.44
227.44
Contested cases; notice; parties; hearing; records. 227.44(1)(1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Except in the case of an emergency, reasonable notice shall consist of mailing notice to known interested parties at least 10 days prior to the hearing.
227.44(2)(a)
(a) A statement of the time, place, and nature of the hearing, including whether the case is a class 1, 2 or 3 proceeding.
227.44(2)(b)
(b) A statement of the legal authority and jurisdiction under which the hearing is to be held, and, in the case of a class 2 proceeding, a reference to the particular statutes and rules involved.
227.44(2)(c)
(c) A short and plain statement of the matters asserted. If the matters cannot be stated with specificity at the time the notice is served, the notice may be limited to a statement of the issues involved.
227.44(2)(d)
(d) If the subject of the hearing is a decision of the department of natural resources or the department of transportation, the name and title of the person who will conduct the hearing.
227.44(2m)
(2m) Any person whose substantial interest may be affected by the decision following the hearing shall, upon the person's request, be admitted as a party.
227.44(3)
(3) Opportunity shall be afforded all parties to present evidence and to rebut or offer countervailing evidence.
227.44(4)(a)(a) In any action to be set for hearing, the agency or hearing examiner may direct the parties to appear before it for a conference to consider:
227.44(4)(a)2.
2. The necessity or desirability of amendments to the pleadings.
227.44(4)(a)3.
3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof.
227.44(4)(a)5.
5. Such other matters as may aid in the disposition of the action.
227.44(4)(b)
(b) The agency or hearing examiner presiding at a conference under this subsection shall make a memorandum for the record which summarizes the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements of the parties. Such memorandum shall control the subsequent course of the action, unless modified at the hearing to prevent manifest injustice.
227.44(5)
(5) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. In any proceeding in which a hearing is required by law, if there is no such hearing, the agency or hearing examiner shall record in writing the reason why no such hearing was held, and shall make copies available to interested persons.
227.44(6)
(6) The record in a contested case shall include:
227.44(6)(a)
(a) All applications, pleadings, motions, intermediate rulings and exhibits and appendices thereto.
227.44(6)(b)
(b) Evidence received or considered, stipulations and admissions.
227.44(6)(d)
(d) Questions and offers of proof, objections, and rulings thereon.
227.44(6)(e)
(e) Any proposed findings or decisions and exceptions.
227.44(6)(f)
(f) Any decision, opinion or report by the agency or hearing examiner.
227.44(7)
(7) All staff memoranda and staff data, not admitted as evidence in a contested case, which are submitted to the hearing examiner or officials of the agency in connection with their consideration of the case, are not part of the official record but shall be made a part of the file and shall be served on all parties. Any party may, within 10 days of service of such memoranda or data, submit comments thereon to the examiner or officials and such comments shall also be served on all parties and placed in the file.
227.44(8)
(8) A stenographic, electronic or other record of oral proceedings shall be made in any class 2 or class 3 proceeding and in any class 1 proceeding when requested by a party. Each agency may establish rules relating to the transcription of the record into a written transcript and the providing of free copies of the written transcript. Rules may require a purpose for transcription which is deemed by the agency to be reasonable, such as appeal, and if this test is met to the satisfaction of the agency, the record shall be transcribed at the agency's expense, except that in preparing the record for judicial review of a decision that was made in an appeal under
s. 227.47 (2) or in an arbitration proceeding under
s. 101.143 (6s) or
230.44 (4) (bm) the record shall be transcribed at the expense of the party petitioning for judicial review. Rules may require a showing of impecuniousness or financial need as a basis for providing a free copy of the transcript, otherwise a reasonable compensatory fee may be charged. If any agency does not promulgate such rules, then it must transcribe the record and provide free copies of written transcripts upon request. In any event, an agency shall not refuse to provide a written transcript if the person making the request pays a reasonable compensatory fee for the transcription and for the copy. This subsection does not apply where a transcript fee is specifically provided by law.
227.44(9)
(9) The factual basis of the decision shall be solely the evidence and matters officially noticed.
227.44 Cross-reference
Cross-reference: See also HA 1, Wis. adm. code.
227.44 Annotation
It was not an abuse of discretion for a hearing examiner to not use an interpreter. Kropiwka v. DILHR,
87 Wis. 2d 709,
275 N.W.2d 881 (1979).
227.44 Annotation
Procedural due process is violated when the scope of the hearing exceeds that stated in a notice. The parties have a right to be apprised of the issues to insure the right to be heard. Bracegirdle v. Board of Nursing,
159 Wis. 2d 402,
464 N.W.2d 111 (Ct. App. 1990).
227.44 Annotation
A reprimand may be imposed only after affording an opportunity for a hearing as provided for in a class 2 contested case. 67 Atty. Gen. 188.
227.44 Annotation
Administrative Review of DNR Decisions. Boldt. Wis. Law. July 1993.
227.45
227.45
Evidence and official notice. In contested cases:
227.45(1)
(1) Except as provided in
s. 901.05, an agency or hearing examiner shall not be bound by common law or statutory rules of evidence. The agency or hearing examiner shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under
s. 901.05. The agency or hearing examiner shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
227.45(2)
(2) All evidence, including records and documents in the possession of the agency or hearing examiner of which the agency or hearing examiner desires to avail himself or herself, shall be duly offered and made a part of the record in the case. Every party shall be afforded adequate opportunity to rebut or offer countervailing evidence.
227.45(3)
(3) An agency or hearing examiner may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity of the official notice.
227.45(4)
(4) An agency or hearing examiner shall take official notice of all rules which have been published in the Wisconsin administrative code or register.
227.45(5)
(5) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.
227.45(6)
(6) A party may conduct cross-examinations reasonably required for a full and true disclosure of the facts.
227.45(6m)
(6m) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in
s. 805.07 (4) and must be served in the manner provided in
s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
227.45(7)
(7) In any class 2 proceeding, each party shall have the right, prior to the date set for hearing, to take and preserve evidence as provided in
ch. 804. Upon motion by a party or by the person from whom discovery is sought in any class 2 proceeding, and for good cause shown, the hearing examiner may make any order in accordance with
s. 804.01 which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In any class 1 or class 3 proceeding, an agency may by rule permit the taking and preservation of evidence, but in every such proceeding the taking and preservation of evidence shall be permitted with respect to a witness:
227.45(7)(a)
(a) Who is beyond reach of the subpoena of the agency or hearing examiner;
227.45(7)(b)
(b) Who is about to go out of the state, not intending to return in time for the hearing;
227.45(7)(c)
(c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or
227.45(7)(d)
(d) Who is a member of the legislature, if any committee of the same or the house of which the witness is a member is in session, provided the witness waives his or her privilege.
227.45 History
History: 1975 c. 94 s.
3;
1975 c. 414 ss.
9,
10,
12; Stats. 1975 s. 227.08;
1977 c. 277,
418,
447;
1979 c. 162,
208;
1985 a. 182 s.
33; Stats. 1985 s. 227.45;
1989 a. 139;
1991 a. 269;
2007 a. 1.
227.45 Annotation
If there is evidence that a rule promulgated by an administrative agency is founded on a particular source, it is reasonable to resort to the source to interpret the rule, but it is the course of reliance on the source in the uniform administrative interpretation of the rule that gives the interpretation validity and not the source itself. Employers Mutual Liability Insurance Co. v. DILHR,
62 Wis. 2d 327,
214 N.W.2d 587 (1974).
227.45 Annotation
This section requires very relaxed rules of evidence. A similar relaxation of the statutory rules of evidence is required as to documents. Sub. (5) does not require certified copies of medical records. Rutherford v. Labor & Industry Review Commission, 2008 WI App 66,
309 Wis. 2d 498,
752 N.W.2d 897,
06-3110.
227.46
227.46
Hearing examiners; examination of evidence by agency. 227.46(1)(1) Except as provided under
s. 227.43 (1), an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under
s. 20.901 or
230.047 as a hearing examiner to preside over any contested case. Subject to rules of the agency, examiners presiding at hearings may:
227.46(1)(c)
(c) Rule on offers of proof and receive relevant evidence.
