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 Admission of evidence by an administrative agency is a matter of discretion. Stein v. Psychology Examining Board, 2003 WI App 147, 265 Wis. 2d 781, 668 N.W.2d 112, 02-2726.

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. LIRC, 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)(a) (a) Administer oaths and affirmations.

227.46(1)(b) (b) Issue subpoenas authorized by law and enforce subpoenas under s. 885.12.

227.46(1)(c) (c) Rule on offers of proof and receive relevant evidence.

227.46(1)(d) (d) Take depositions or have depositions taken when permitted by law.

227.46(1)(e) (e) Regulate the course of the hearing.

227.46(1)(f) (f) Hold conferences for the settlement or simplification of the issues by consent of the parties.

227.46(1)(g) (g) Dispose of procedural requests or similar matters.

227.46(1)(h) (h) Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.

227.46(1)(i) (i) Take other action authorized by agency rule consistent with this chapter.

227.46(2) (2) Except as provided in sub. (2m) and s. 227.47 (2), in any contested case which is a class 2 or class 3 proceeding, where a majority of the officials of the agency who are to render the final decision are not present for the hearing, the hearing examiner presiding at the hearing shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case. The proposed decision shall be a part of the record and shall be served by the agency on all parties. Each party adversely affected by the proposed decision shall be given an opportunity to file objections to the proposed decision, briefly stating the reasons and authorities for each objection, and to argue with respect to them before the officials who are to participate in the decision. The agency may direct whether such argument shall be written or oral. If an agency’s decision varies in any respect from the decision of the hearing examiner, the agency’s decision shall include an explanation of the basis for each variance.

227.46(2m) (2m) In any hearing or review assigned to a hearing examiner under s. 227.43 (1) (bg), the hearing examiner presiding at the hearing shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion, in a form that may be adopted as the final decision in the case. The proposed decision shall be a part of the record and shall be served by the division of hearings and appeals in the department of administration on all parties. Each party adversely affected by the proposed decision shall be given an opportunity to file objections to the proposed decision within 15 days, briefly stating the reasons and authorities for each objection, and to argue with respect to them before the administrator of the division of hearings and appeals. The administrator of the division of hearings and appeals may direct whether such argument shall be written or oral. If the decision of the administrator of the division of hearings and appeals varies in any respect from the decision of the hearing examiner, the decision of the administrator of the division of hearings and appeals shall include an explanation of the basis for each variance. The decision of the administrator of the division of hearings and appeals is a final decision of the agency subject to judicial review under s. 227.52. The department of transportation may petition for judicial review.

227.46(3) (3) With respect to contested cases except a hearing or review assigned to a hearing examiner under s. 227.43 (1) (bg), an agency may by rule or in a particular case may by order:

227.46(3)(a) (a) Direct that the hearing examiner’s decision be the final decision of the agency;

227.46(3)(b) (b) Except as provided in sub. (2) or (4), direct that the record be certified to it without an intervening proposed decision; or

227.46(3)(c) (c) Direct that the procedure in sub. (2) be followed, except that in a class 1 proceeding both written and oral argument may be limited.