Chapter 227

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) (4) 

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)1. 1. The clarification of issues.

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)4. 4. The limitation of the number of witnesses.

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)(c) (c) A statement of matters officially noticed.

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. 292.63 (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 History History: 1975 c. 414; 1977 c. 26, 418; 1985 a. 182 ss. 32, 52, 55 (1); Stats. 1985 s. 227.44; 1993 a. 16; 1997 a. 237; 2003 a. 33, 118; 2013 a. 20.

227.44 Cross-reference Cross-reference: See also ch. 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 Section 281.36 (3q) (g) states that an administrative hearing on a challenge to a Department of Natural Resources wetland permit shall be treated as a contested case under this chapter. Prior to the hearing, a notice shall be sent out under sub. (2) (c) defining the issues to be decided, and a failure to provide notice of all of the issues involved can constitute a deprivation of a party’s due process rights. In this case, the issue of amending the wetland permit’s conditions was not presented to the administrative law judge (ALJ) under sub. (2) (c). The ALJ therefore did not possess the authority to raise the issue sua sponte without it first being presented as an issue. Kohler Co. v. DNR, 2024 WI App 2, 410 Wis. 2d 433, 3 N.W.3d 172, 21-1187.

227.44 Annotation A reprimand may be imposed only after affording an opportunity for a hearing as provided for in a class two contested case. 67 Atty. Gen. 188.

227.44 Annotation Administrative Review of DNR Decisions: A Guide to Hearings before the Division of Hearings and Appeals. Boldt. Wis. Law. July 1993.

227.445 227.445 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.

227.445(2) (2) No person may file more than one request under sub. (1) for a single hearing.

227.445(3) (3) 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.

227.445 History History: 2015 a. 391.

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 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.

227.46(4) (4) 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.

227.46(5) (5) 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.

227.46(6) (6) 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.

227.46(7) (7) 

227.46(7)(a) (a) 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.

227.46(7)(b) (b) In this subsection, “trade secret” has the meaning specified in s. 134.90 (1) (c).

227.46(8) (8) 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.

227.46 History History: 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 196 s. 131; 1977 c. 277, 418, 447; 1979 c. 208; 1983 a. 189 s. 329 (2); 1985 a. 29; 1985 a. 182 ss. 33g, 57; 1985 a. 236; Stats. 1985 s. 227.46; 1987 a. 365; 1993 a. 16; 2007 a. 1.

227.46 Annotation 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).

227.46 Annotation 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).

227.46 Annotation 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, 99-1338.

227.46 Annotation 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, 07-1072.

227.46 Annotation 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.

227.46 Annotation Discussing circumstances under which a hearing examiner has the power to entertain a motion to dismiss proceedings. 68 Atty. Gen. 30.

227.46 Annotation A witness subpoenaed under sub. (1) must attend a continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.

227.47 227.47 Decisions.

227.47(1) (1) 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.

227.47(2) (2) 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) or (d) 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.

227.47 History History: 1975 c. 414 s. 15; 1977 c. 418; 1979 c. 208; 1985 a. 182 ss. 33r, 57; Stats. 1985 s. 227.47; 1993 a. 16, 491; 2003 a. 33 ss. 2376, 2377, 9160; 2015 a. 55.

227.47 Annotation 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).

227.48 227.48 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.