Chapter ATCP 1

ATCP 1.16(4)(c) (c) The department may provide a written transcript free of charge to a requesting party if the requesting party demonstrates, to the department’s satisfaction, that the requesting party is impecunious and has a legal need for the transcript.

ATCP 1.16(5) (5) Information protected from disclosure. This section does not require the department to disclose information in violation of an order under s. ATCP 1.25 (2) (b).

ATCP 1.16 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (1) to (3), (4) (a), (b) Register December 2010 No. 660, eff. 1-1-11.

subch. V of ch. ATCP 1 Subchapter V — Contested Case Proceedings

ATCP 1.20 ATCP 1.20 Hearing notice. To initiate a contested case proceeding, the secretary shall issue a hearing notice to each of the parties. The hearing notice shall be signed and dated by the secretary, and shall be captioned as provided in s. ATCP 1.13 (2). The hearing notice shall include all of the following:

ATCP 1.20(1) (1) Nature of the proceeding. A statement of the general nature of the proceeding, including whether the proceeding is a class 1, class 2, or class 3 proceeding under s. 227.01 (3), Stats.

ATCP 1.20(2) (2) Legal authority. A statement of the department’s legal authority to conduct the contested case proceeding.

ATCP 1.20(3) (3) Administrative law judge. The name of the administrative law judge who is appointed to preside over the contested case, unless the secretary intends to preside in person.

ATCP 1.20(4) (4) Final decisionmaker. The name and position of the final decisionmaker who is appointed to issue a final decision in the case, unless the secretary intends to issue the final decision.

ATCP 1.20(5) (5) Hearing. Except as provided under sub. (6), the date, time and location at which a hearing will be held in the proceeding. Except in an emergency, or by agreement of all parties, the hearing date shall be not less than 30 days after the hearing notice is issued. If any party is required to file an answer or other pleading under s. ATCP 1.21, the hearing date shall not precede the last date for filing the answer or other pleading. The administrative law judge may reschedule a hearing as the administrative law judge deems appropriate.

ATCP 1.20(6) (6) Prehearing conference. Instead of scheduling a hearing, the hearing notice may schedule a prehearing conference under s. ATCP 1.14. The hearing notice may specify that the prehearing conference is to be conducted by telephone, or it may authorize the parties to request a telephone prehearing conference.

ATCP 1.20 Note Note: If the hearing notice schedules a prehearing conference, rather than a hearing, the administrative law judge will schedule the hearing after consulting the parties.

ATCP 1.20(7) (7) Matters asserted. A short and plain statement of the matters asserted. This statement may incorporate, by reference, the complaint or pleading filed by the initiating party under subchapter III. If the contested case is initiated in response to a complaint under s. ATCP 1.05, a copy of the complaint shall be included with the hearing notice.

ATCP 1.20(8) (8) Required answer or pleading. A notice to affected parties that they are required to file an answer or responsive pleading, if such is the case. If a proceeding is initiated in response to a complaint under s. ATCP 1.05, the notice shall inform each respondent named in the complaint that he or she must file an answer to the complaint under s. ATCP 1.21 (1).

ATCP 1.20(9) (9) Consequences of failing to appear or file answer. A statement that, if a party fails to appear or file an answer or pleading as required, the department may issue a decision and order against that party without further notice or hearing.

ATCP 1.20 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (3), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (5), (8) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.21 ATCP 1.21 Answers; required pleadings.

ATCP 1.21(1) (1) Answer.

ATCP 1.21(1)(a) (a) If a respondent is named in a complaint under s. ATCP 1.05, and is served with a copy of the complaint and the hearing notice issued under s. ATCP 1.20, the respondent shall file a written answer to the complaint. The respondent shall file the answer within 20 days after the complaint and hearing notice are served on the respondent. Upon request by a respondent, the administrative law judge may grant the respondent an extension of time to file an answer.

ATCP 1.21(1)(b) (b) An answer under par. (a) shall be in writing, and shall be captioned as provided in s. ATCP 1.13 (2). The answer shall be signed by the respondent or the respondent’s attorney, and shall clearly and specifically state the respondent’s position with respect to each allegation in the complaint.

ATCP 1.21(2) (2) Other pleadings. In a hearing notice under s. ATCP 1.20, the secretary may require the parties to file written pleadings in order to identify the positions of the parties and the matters at issue in the proceeding. The administrative law judge may require the parties to file any supplementary pleadings which the administrative law judge considers necessary.

ATCP 1.21(3) (3) Amendments. A party may, with leave from the administrative law judge, amend an answer or pleading at any point in a contested case proceeding. The administrative law judge may withhold leave if the amendment would unduly delay or disrupt the proceeding, or would work a significant injustice against any party.

ATCP 1.21 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (a), (2) and (3), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (1) (b) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.22 ATCP 1.22 Prehearing conference.

ATCP 1.22(1) (1) General. The hearing notice under s. ATCP 1.20 may require the parties to appear at a prehearing conference. The administrative law judge may also require the parties to attend one or more prehearing conferences.

ATCP 1.22 Note Note: A prehearing conference is normally held in every contested case proceeding unless the administrative law judge determines that a prehearing conference is unnecessary. Prehearing conferences are electronically recorded.

ATCP 1.22(2) (2) Purposes. A prehearing conference may be held to consider any of the following:

ATCP 1.22(2)(a) (a) Possibilities for settling the case.

ATCP 1.22(2)(b) (b) The clarification of issues.

ATCP 1.22(2)(c) (c) The necessity or desirability of amending the pleadings.

ATCP 1.22(2)(d) (d) The possibility of obtaining stipulations of facts, law or evidence that will avoid unnecessary arguments or offers of proof.

ATCP 1.22(2)(e) (e) The identification of witnesses and evidence for hearing.

ATCP 1.22(2)(f) (f) Prehearing motions and discovery requests.

ATCP 1.22(2)(g) (g) The scheduling of proceedings in the contested case, including the date, time and location of hearing.

ATCP 1.22(2)(h) (h) Other matters which may aid the orderly consideration and disposition of the contested case.

ATCP 1.22(3) (3) Memorandum. At the conclusion of a prehearing conference, the administrative law judge shall prepare a memorandum for the record under s. 227.44 (4) (b), Stats., which summarizes the action taken and the agreements reached at the conference. The administrative law judge may, in conjunction with the memorandum, issue any procedural orders which may be necessary to implement the actions taken at the prehearing conference. Copies of the memorandum shall be mailed or delivered to all parties.

ATCP 1.22 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) and (3), Register, June, 1999, No. 522, eff. 7-1-99.

ATCP 1.23 ATCP 1.23 Discovery.

ATCP 1.23(1) (1) Class 2 contested cases. In a class 2 contested case, every party is entitled to discovery as provided in s. 227.45 (7) and ch. 804, Stats.

ATCP 1.23(2) (2) Other contested cases. In a class 1 or class 3 contested case, the administrative law judge may by order authorize discovery by any party under s. 227.45 (7) and ch. 804, Stats. Except as provided in s. 227.45 (7) (a) to (d), Stats., the decision to grant or deny a discovery request in a class 1 or class 3 contested case is subject to the administrative law judge’s discretion. The administrative law judge may issue a discovery order in response to a motion by any party, and may impose such limits on discovery as the administrative law judge considers appropriate.

ATCP 1.23(3) (3) Exchange of evidence and witness lists.

ATCP 1.23(3)(a) (a) Except as provided under par. (b) or ordered by the administrative law judge, every party in a contested case shall provide every other party with all of the following at least 10 days prior to hearing:

ATCP 1.23(3)(a)1. 1. The name and address of every person whom the party intends to call as a witness in the proceeding. Proposed expert witnesses shall be identified as such.

ATCP 1.23(3)(a)2. 2. A copy of every document which the party intends to offer as evidence in the proceeding.

ATCP 1.23(3)(a)3. 3. A description of every item of physical evidence which the party intends to offer as evidence in the proceeding. Upon request by any other party, the party offering the physical evidence shall permit the requesting party to make reasonable inspection of the physical evidence prior to hearing.

ATCP 1.23(3)(b) (b) Paragraph (a) does not apply to witnesses or evidence used solely to impeach witness testimony.

ATCP 1.23(4) (4) Protective orders. Upon motion by any party, and for good cause shown, the administrative law judge may issue a protective order under s. 804.01 (3), Stats., limiting discovery. The administrative law judge may issue a protective order in any contested case, including a class 2 contested case.

ATCP 1.23(5) (5) Order compelling discovery. If a person fails to respond to a discovery request under this section, the party seeking discovery may move the administrative law judge for an order compelling discovery. Upon motion by any party, the administrative law judge may issue an order compelling discovery under s. 804.12, Stats.

ATCP 1.23 Note Note: If a party fails to comply with sub. (3), or with an administrative law judge’s order under sub. (2), (4) or (5), the party is subject to possible sanctions under s. ATCP 1.11. If any person willfully fails to testify or provide evidence in compliance with an administrative law judge’s order under sub. (5), that person may be coerced under ss. 93.14 (3) and 885.12, Stats., or may be subject to criminal penalties as provided under s. 93.21 (3) or (4), Stats.

ATCP 1.23(6) (6) Completion of discovery. Discovery in a contested case shall be completed at least 10 days prior to the date on which the contested case hearing is scheduled to begin, except as otherwise ordered or allowed by the administrative law judge.

ATCP 1.23 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (2), (3) (a), (4) and (5), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (3) (a) (intro.), cr. (6) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.24 ATCP 1.24 Settlement.

ATCP 1.24(1) (1) General. At any point in a contested case proceeding, the parties may agree to settle the case. Parties wishing to settle a case shall file both of the following:

ATCP 1.24(1)(a) (a) A written stipulation, signed by the parties or their representatives, setting forth the agreed terms of settlement.

ATCP 1.24(1)(b) (b) A proposed order disposing of the case, for signature by the final decisionmaker.

ATCP 1.24(2) (2) Approval. A proposed order under sub. (1) or (3) is subject to approval by the final decisionmaker. The final decisionmaker signifies approval by signing the proposed order as submitted by the parties.

ATCP 1.24(3) (3) Settlement prior to complaint filing or hearing request.

ATCP 1.24(3)(a) (a) The parties to a potential contested case may agree to settle that potential case prior to the filing of any complaint under s. ATCP 1.05 or hearing request under s. ATCP 1.06, and prior to the issuance of any hearing notice under s. ATCP 1.20.

ATCP 1.24(3)(b) (b) The parties to a settlement under par. (a) may stipulate to the issuance of a department order without the filing of any complaint or hearing request, and without further notice, hearing or other contested case procedures. Parties seeking a stipulated order shall file all of the following with the secretary:

ATCP 1.24(3)(b)1. 1. A copy of the proposed order.

ATCP 1.24(3)(b)2. 2. A written stipulation, signed by the parties or their attorneys, in which the parties consent to the entry of the proposed order without the filing of a complaint or hearing request, and without further notice, hearing or other contested case procedures. The stipulating parties waive any right to hearing, reconsideration or judicial review of the stipulated order, including any rights under s. 227.42, 227.49, or 227.52, Stats.

ATCP 1.24(3)(c) (c) Before filing a stipulation and proposed special order under s. 100.20, Stats., the department of justice shall provide a copy of the stipulation and proposed order to the trade and consumer protection division.

ATCP 1.24 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; CR 09-054: am. (2), (3) (title), r. and recr. (3) (a), (b) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.25 ATCP 1.25 Hearing.

ATCP 1.25(1) (1) Hearing time and location.

ATCP 1.25(1)(a) (a) A contested case hearing shall be held at a time and location specified in the hearing notice under s. ATCP 1.20, or at a time and location specified by the administrative law judge. In determining the hearing time and location, the administrative law judge shall consider all of the following:

ATCP 1.25(1)(a)1. 1. The location and convenience of the parties.

ATCP 1.25(1)(a)2. 2. The location and convenience of department personnel involved in the proceeding.

ATCP 1.25(1)(a)3. 3. The location and convenience of witnesses involved in the proceeding.

ATCP 1.25(1)(a)4. 4. Public interest and convenience in attending the proceeding.

ATCP 1.25(1)(b) (b) The administrative law judge may adjourn, recess or postpone a hearing as the administrative law judge deems appropriate.

ATCP 1.25(1)(c) (c) A hearing, or any portion of a hearing, may be held by telephone if the administrative law judge determines that the telephone hearing is justified for the convenience of any party or witness, and that no party is unfairly prejudiced by the telephone hearing.

ATCP 1.25(1)(d) (d) The administrative law judge may on his or her own motion, or on the motion of any party, hold a hearing or any portion of a hearing by videoconferencing technology as defined in s. 885.52 (3), Stats., if all of the following apply:

ATCP 1.25(1)(d)1. 1. The administrative law judge determines that the standards and criteria set forth in ss. 885.54 and 885.56, Stats., are met.

ATCP 1.25(1)(d)2. 2. The department or the party requesting the use of videoconferencing technology agrees to pay the cost of using that technology.

ATCP 1.25(2) (2) Hearings open to public.

ATCP 1.25(2)(a) (a) Except as ordered by the administrative law judge, every contested case hearing is open to attendance by the public.

ATCP 1.25(2)(b) (b) Upon motion by any party, the administrative law judge may do either of the following:

ATCP 1.25(2)(b)1. 1. By order, prohibit the disclosure of information or restrict attendance at any portion of a proceeding if the administrative law judge determines that the order is necessary to prevent disclosure of a trade secret or other information which is protected by law from public disclosure.

ATCP 1.25(2)(b)2. 2. By order, exclude prospective witnesses from attending portions of a proceeding if the administrative law judge determines that the order will promote the interests of justice. Exclusionary orders shall conform to s. 906.15, Stats.

ATCP 1.25(2)(c) (c) The administrative law judge may, by order, prohibit any person from further attendance at a proceeding if that person engages in disruptive behavior which inhibits the orderly conduct of the proceeding.

ATCP 1.25(3) (3) Opening statements and closing arguments. Opening statements and closing arguments are optional, and do not constitute evidence. The administrative law judge may limit opening and closing arguments as the administrative law judge deems necessary.

ATCP 1.25(4) (4) Order of hearing.

ATCP 1.25(4)(a) (a) Except as provided under par. (b) or (c) or other applicable law, the party requesting a contested case hearing has the initial burden of going forward with proof at the hearing.

ATCP 1.25(4)(b) (b) If a party contests a division’s legal authority to issue an existing order, the administrative law judge may require the division to go forward with proof that it had adequate legal authority to issue the order.

ATCP 1.25(4)(c) (c) Subject to the general order of proof under par. (a), the administrative law judge may determine the order of proof in a contested case to promote an orderly presentation and consideration of the case.

ATCP 1.25(5) (5) Evidence. The receipt of testimony and other evidence in contested cases is subject to s. 227.45, Stats. The administrative law judge shall admit evidence which has reasonable probative value, but shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which lacks reasonable probative value.

ATCP 1.25(6) (6) Witnesses.

ATCP 1.25(6)(a) (a) All witness testimony shall be given under oath or affirmation. The administrative law judge shall administer the oath or affirmation to each witness.