Administrative Review of DNR Decisions: A Guide to Hearings before the Division of Hearings and Appeals. Boldt. Wis. Law. July 1993.
Substitution of hearing examiner assigned by division of hearings and appeals. 227.445(1)(1)
A person who has applied for a contract, permit, or other approval from the department of natural resources or the department of agriculture, trade and consumer protection that is the subject of a contested case hearing for which the division of hearings and appeals has assigned a hearing examiner may file a written request with the administrator of the division of hearings and appeals in the department of administration, not later than 10 days after receipt of the notice under s. 227.44 (1)
, for a substitution of a new hearing examiner.
No person may file more than one request under sub. (1)
for a single hearing.
Upon receipt of a request under sub. (1)
, the administrator of the division of hearings and appeals shall determine if the request was made timely and in proper form. If the request was made timely and in proper form, the administrator of the division of hearings and appeals shall transfer the matter to another hearing examiner and shall transmit to the new hearing examiner all materials relating to the matter.
History: 2015 a. 391
Evidence and official notice.
In contested cases:
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.
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.
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.
An agency or hearing examiner shall take official notice of all rules which have been published in the Wisconsin administrative code or register.
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.
A party may conduct cross-examinations reasonably required for a full and true disclosure of the facts.
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.
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:
Who is beyond reach of the subpoena of the agency or hearing examiner;
Who is about to go out of the state, not intending to return in time for the hearing;
Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or
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.
History: 1975 c. 94
; 1975 c. 414
; Stats. 1975 s. 227.08; 1977 c. 277
; 1979 c. 162
; 1985 a. 182
; Stats. 1985 s. 227.45; 1989 a. 139
; 1991 a. 269
; 2007 a. 1
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
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
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
as a hearing examiner to preside over any contested case. Subject to rules of the agency, examiners presiding at hearings may:
Rule on offers of proof and receive relevant evidence.
Take depositions or have depositions taken when permitted by law.
Hold conferences for the settlement or simplification of the issues by consent of the parties.
Dispose of procedural requests or similar matters.
Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.
Take other action authorized by agency rule consistent with this chapter.
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.
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.
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:
Direct that the hearing examiner's decision be the final decision of the agency;
Except as provided in sub. (2)
, direct that the record be certified to it without an intervening proposed decision; or
Direct that the procedure in sub. (2)
be followed, except that in a class 1 proceeding both written and oral argument may be limited.
Notwithstanding any other provision of this section, in any contested case, if a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposed decision is served upon the parties and an opportunity is afforded to each party adversely affected to file objections and present briefs or oral argument to the officials who are to render the decision. Except as provided in s. 227.47 (2)
, the proposed decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the hearing examiner or a person who has read the record. The parties by written stipulation may waive compliance with this subsection.
In any class 2 proceeding, if the decision to file a complaint or otherwise commence a proceeding to impose a sanction or penalty is made by one or more of the officials of the agency, the hearing examiner shall not be an official of the agency and the procedure described in sub. (2)
shall be followed.
The functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner. A hearing examiner or agency official may at any time disqualify himself or herself. In class 2 and 3 proceedings, on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a hearing examiner or official, the agency or hearing examiner shall determine the matter as part of the record and decision in the case.
Notwithstanding any other provision of law, the hearing examiner presiding at a hearing may order such protective measures as are necessary to protect the trade secrets of parties to the hearing.
If the hearing examiner assigned under s. 227.43 (1) (b)
renders the final decision in a contested case and the decision is subject to judicial review under s. 227.52
, the department of natural resources may petition for judicial review. If the hearing examiner assigned under s. 227.43 (1) (br)
renders the final decision in a contested case and the decision is subject to judicial review under s. 227.52
, the department of transportation may petition for judicial review.
An agency's decision not to accept a hearing examiner's order on grounds that altered sanctions were justified by the “seriousness of the facts" was insufficient. Heine v. Chiropractic Examining Board, 167 Wis. 2d 187
, 481 N.W.2d 638
(Ct. App. 1992).
The agency, not the hearing examiner, is responsible for credibility determinations. When the agency reverses the examiner, the agency must state the basis for rejecting the findings and give the reason why it made its independent finding. It is a denial of due process if the agency makes a determination without benefit of the examiner's findings, conclusions, and impressions of the testimony. Hakes v. LIRC, 187 Wis. 2d 582
, 523 N.W.2d 155
(Ct. App. 1994).
An agency's alteration of a hearing examiner's finding of facts without conferring with the hearing examiner violated sub. (2) and rendered the decision procedurally defective. The altered findings, implicitly addressing the issue of the subject's credibility on a critical issue, logically related to the ultimate determination and violated due process. Epstein v. Benson, 2000 WI App 195
, 238 Wis. 2d 717
, 618 N.W.2d 224
Under sub. (2), if the decision of the administrative agency varies in any respect from that of the administrative law judge, the agency is required to provide an explanation of the basis for each variance, but there is no requirement that the agency indulge in the elaborate opinion procedure of an appellate court. Sub. (2) provides for no opportunity to be heard before the agency when a hearing examiner conducts the original hearing. Each party has the opportunity to file objections to the proposed decision. The agency may direct whether such argument shall be written or oral. Daniels v. Chiropractic Examining Board, 2008 WI App 59
, 309 Wis. 2d 485
, 750 N.W.2d 951
Sub. (5) requires the use of a hearing examiner if an examining board member participates in the decision to commence a proceeding against a licensee but does not require such use if a board member is involved only in the investigation. 66 Atty. Gen. 52.
Discussing circumstances under which a hearing examiner has the power to entertain a motion to dismiss proceedings. 68 Atty. Gen. 30.
A witness subpoenaed under sub. (1) must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.
Except as provided in sub. (2)
, every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53
. The agency shall by rule establish a procedure for determination of parties.
Except as otherwise provided in this subsection, a proposed or final decision of the employment relations commission, hearing examiner or arbitrator concerning an appeal of the decision of the administrator of the division of personnel management in the department of administration made under s. 230.09 (2) (a)
shall not be accompanied by findings of fact or conclusions of law. If within 30 days after the commission issues a decision in such an appeal either party files a petition for judicial review of the decision under s. 227.53
and files a written notice with the commission that the party has filed such a petition, the commission shall issue written findings of fact and conclusions of law within 90 days after receipt of the notice. The court shall stay the proceedings pending receipt of the findings and conclusions.
Absent controlling legislation to the contrary, determinations by administrative agencies acting in a judicial capacity are generally given preclusive effect in subsequent court actions between the same parties. Certain conditions must, however, be met: 1) the administrative proceeding must have been properly before the agency; 2) the administrative agency must have been acting in a judicial capacity; 3) the issues for which preclusion is sought must have been actually determined by the administrative agency; and 4) the parties must have had an adequate opportunity to litigate those issues before the administrative agency. Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis.2d 381
, 497 N.W.2d 756
(Ct. App. 1993).
Service of decision. 227.48(1)(1)
Except as provided in s. 196.40
, every decision when made, signed and filed, shall be served forthwith by personal delivery or by mailing or, with the consent of the parties, by electronically mailing a copy to each party to the proceedings or to the party's attorney of record.
Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under s. 227.49 (1)
for filing a petition for rehearing, under s. 227.53 (1) (a)
for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.
History: 1975 c. 94
; 1975 c. 414
; Stats. 1975 s. 227.11; 1981 c. 378
; 1985 a. 182
; Stats. 1985 s. 227.48; 2011 a. 155
; 2021 a. 242
Service of a decision is complete on the date of its mailing regardless of its receipt by the addressee. In re Proposed Incorporation of Pewaukee, 72 Wis. 2d 593
, 241 N.W.2d 603
Formal notice under sub. (2) of the right to judicial review need be given only with a decision arising out of a contested case proceeding. Collins v. Policano, 231 Wis. 2d 420
, 605 N.W.2d 260
(Ct. App. 1999), 99-0255
Costs upon frivolous claims. 227.483(1)(1)
If a hearing examiner or the tax appeals commission finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner or tax appeals commission shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
If the costs and fees awarded under sub. (1)
are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
To find a petition for a hearing or a claim or defense to be frivolous under sub. (1)
, the hearing examiner must find at least one of the following:
That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
If the proceeding relates to mining for ferrous minerals, as defined in s. 295.41 (18)
, that the petition, claim, or defense was commenced, used, or continued primarily for the purpose of causing delay to an activity authorized under a license that is the subject of the hearing.
History: 2003 a. 118
; 2011 a. 68
; 2013 a. 1
Costs to certain prevailing parties. 227.485(1)(1)
The legislature intends that hearing examiners and courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504
“Hearing examiner" means the agency or hearing examiner conducting the hearing.
“Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
“Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employees.
“State agency" does not include the citizens utility board.
“Substantially justified" means having a reasonable basis in law and fact.
In any contested case in which an individual, a small nonprofit corporation or a small business is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
In determining the prevailing party in cases in which more than one issue is contested, the examiner shall take into account the relative importance of each issue. The examiner shall provide for partial awards of costs under this section based on determinations made under this subsection.
If the hearing examiner awards costs under sub. (3)
, he or she shall determine the costs under this subsection, except as modified under sub. (4)
. The decision on the merits of the case shall be placed in a proposed decision and submitted under ss. 227.47
. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5)
and include an order for payment of costs in the final decision.
A final decision under sub. (5)
is subject to judicial review under s. 227.52
. If the individual, small nonprofit corporation or small business is the prevailing party in the proceeding for judicial review, the court shall make the findings applicable under s. 814.245
and, if appropriate, award costs related to that proceeding under s. 814.245
, regardless of who petitions for judicial review. In addition, the court on review may modify the order for payment of costs in the final decision under sub. (5)
An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the case. This subsection applies whether the person files the tax return individually or in combination with a spouse.
If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under s. 20.865 (1) (a)