ATCP 1.08 NoteExample: A claim filing order in a dairy plant default proceeding may be captioned as follows:
ATCP 1.08(3)(3) Auditing claims; proposed decision. The trade and consumer protection division shall audit claims filed in response to the default claim filing order under sub. (2). Based on its audit, the trade and consumer protection division shall file with the secretary a proposed decision determining claims. The proposed decision shall do all of the following: ATCP 1.08(3)(a)(a) Specify proposed findings of fact, proposed conclusions of law and a proposed order determining claims and appropriate sources for payment of claims. ATCP 1.08(3)(b)(b) Allow or disallow each default claim according to s. 126.70 (4), Stats., and specify the amount of each allowed claim. ATCP 1.08(3)(c)(c) Specify, for each allowed claim, the amount that the department is authorized to pay under s. 126.71, Stats. ATCP 1.08(3)(d)(d) Specify the method, under s. 126.71, Stats., by which the department will pay the authorized amounts. ATCP 1.08(3)(e)(e) Explain a claimant’s right under s. 126.87 (4), Stats., to seek court recovery of that portion of an authorized claim that is not paid by the department. ATCP 1.08(3)(f)(f) Specify a date by which the contractor, claimant, surety or trade credit insurer may file written objections to the proposed decision. ATCP 1.08(3)(g)(g) If a respondent is covered by the department’s trade credit insurance policy, specify what claimants must do to qualify for coverage under the policy. ATCP 1.08(3)(h)(h) Include other provisions, if any, that the division finds necessary for the just and orderly determination of claims under ch. 126, Stats. ATCP 1.08(4)(a)(a) After the trade and consumer protection division files its proposed decision with the secretary under sub. (3), the department shall hold a class 2 contested case hearing on the proposed decision. To initiate the contested case proceeding, the secretary shall issue a hearing notice under s. ATCP 1.20. ATCP 1.08(4)(b)(b) The notice under par. (a) shall include a copy of the proposed decision under sub. (3). The notice shall invite affected parties to present their objections, if any, at the contested case hearing. The notice may require affected parties to file their objections in writing before the hearing, by a specified date. ATCP 1.08(4)(c)(c) The notice under par. (a) shall be issued to all of the following parties: ATCP 1.08(4)(c)1.1. The respondent who is alleged to have defaulted on payment obligations to producers. ATCP 1.08(4)(c)2.2. Any financial institution, insurance company or surety who may be obligated as a result of the default to pay the department. ATCP 1.08(4)(c)3.3. Each producer claimant who has filed a timely claim with the department. ATCP 1.08(4)(d)(d) If any party files a timely objection to the division’s proposed decision under sub. (3), the administrative law judge shall hear that objection in the contested case hearing under par. (a). ATCP 1.08(4)(e)(e) If, upon hearing under par. (a), there is no objection to the division’s proposed decision and order under sub. (3), the department may adopt that proposed decision and order as the department’s final decision and order in the proceeding, without further notice to the parties. ATCP 1.08 HistoryHistory: Cr. Register, May, 1992, No. 437, eff. 6-1-92; corrections in (1) (b) and (2) made under s. 13.93 (2m) b. 7., Stats., Register April 2003 No. 568; CR 09-054: am. (title), (1), (2), (4) (c) 2., (d), r. and recr. (3) Register December 2010 No. 660, eff. 1-1-11. ATCP 1.10ATCP 1.10 Administrative law judge’s authority and duties. ATCP 1.10(1)(1) Authority. An administrative law judge may, on behalf of the department and according to this chapter, preside over a contested case proceeding and issue orders regulating the conduct of the proceeding. In a contested case proceeding, unless otherwise provided by the secretary, the administrative law judge may do all of the following: ATCP 1.10(1)(a)(a) Require the parties to submit supplementary pleadings in order to clarify positions or issues. ATCP 1.10(1)(b)(b) Consolidate proceedings and order the joinder of parties, as appropriate. ATCP 1.10(1)(h)(h) With the approval of the secretary, issue subpoenas to compel the attendance of witnesses and the production of documents. ATCP 1.10(1)(j)(j) Regulate discovery proceedings, and issue orders to compel or limit discovery. ATCP 1.10(1)(L)(L) Preside over hearings and regulate the course of hearings. ATCP 1.10(1)(m)(m) Require or permit the parties to file written briefs and arguments. ATCP 1.10(1)(n)(n) Supervise the creation of the contested case record for that portion of the contested case that is conducted under the auspices of the administrative law judge. ATCP 1.10(1)(o)(o) If necessary and with the secretary’s approval, order and supervise the preparation of a written transcript of oral proceedings conducted before the administrative law judge. ATCP 1.10(1)(q)(q) At the request of the final decisionmaker, advise the final decisionmaker on final decisions and orders. ATCP 1.10(1)(s)(s) Issue final decisions and orders if appointed as final decisionmaker by the secretary. ATCP 1.10(1)(t)(t) Certify the contested case record for that portion of the contested case that is conducted under the auspices of the administrative law judge, if certification is necessary for a judicial review proceeding. ATCP 1.10(2)(2) Limits on authority. The administrative law judge may not exercise any authority which is reserved to the secretary or final decisionmaker under this chapter, unless the secretary appoints the administrative law judge as final decisionmaker or delegates the secretary’s authority to the administrative law judge in writing. ATCP 1.10(3)(a)(a) An administrative law judge shall withdraw from a contested case if the administrative law judge determines that there is a conflict of interest or other circumstance which prevents the administrative law judge from acting impartially, or which creates an undue appearance of bias. ATCP 1.10(3)(b)(b) No person who participates in the investigation or advocacy of a case, or in the decision to initiate an enforcement action in that case, may act as administrative law judge in the case. ATCP 1.10(3)(c)(c) An administrative law judge is not disqualified solely because of the administrative law judge’s employment with the department, or solely because the administrative law judge has presided over cases involving the same parties, facts or issues in the past. ATCP 1.10(4)(4) Ex parte communications. If an administrative law judge receives an ex parte communication which violates s. 227.50 (1), Stats., the administrative law judge shall deal with the ex parte communication as provided under s. 227.50 (2), Stats. ATCP 1.10 HistoryHistory: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (intro.) and (2) to (4), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (1) (intro.), (h), (n), (o), (q), (t) Register December 2010 No. 660, eff. 1-1-11. ATCP 1.11ATCP 1.11 Failure to appear, answer or comply with administrative law judge’s order. ATCP 1.11(1)(1) Sanctions against disobedient party. If a party, without reasonable excuse, fails to file an answer or pleading as required by s. ATCP 1.21, fails to make a required appearance in a proceeding, fails to disclose witnesses or evidence under s. ATCP 1.23 (3), fails to comply with a subpoena or order issued by the administrative law judge, or fails to comply with the provisions of this chapter, the administrative law judge may take any of the following actions which the administrative law judge considers just in relation to the disobedient party’s failure: ATCP 1.11(1)(a)(a) Accept an opposing party’s allegations as true, and issue a decision and order in the case based on those allegations. ATCP 1.11(1)(b)(b) Adopt an opposing party’s proposed findings of fact, conclusions of law and order as the administrative law judge’s findings of fact, conclusions of law and order. ATCP 1.11(1)(c)(c) By order, disqualify the disobedient party from further participation in the proceedings. ATCP 1.11(1)(d)(d) By order, stay further proceedings until the disobedient party cures the failure. ATCP 1.11(1)(e)(e) By order, prohibit the disobedient party from arguing designated issues or introducing designated matters in evidence. ATCP 1.11(1)(f)(f) By order, dismiss the proceeding, or any part of the proceeding, if the proceeding was initiated at the request of the disobedient party. ATCP 1.11 NoteNote: A person who, in willful violation of a department subpoena or order, fails to appear as a witness or fails to produce evidence in a contested case proceeding, may be coerced as provided in ss. 93.14 (3) and 885.12, Stats., or may be subject to criminal penalties as provided under s. 93.21 (4), Stats. ATCP 1.11(2)(a)(a) Before issuing an order under sub. (1), the administrative law judge shall mail a copy of the proposed order to the disobedient party, and shall give the disobedient party not less than 10 days to show cause why the proposed order should not be issued. This paragraph does not apply to proposed orders issued under par. (b). ATCP 1.11(2)(b)(b) If the administrative law judge is not the final decisionmaker, and if an order under sub. (1) would constitute a final order in the contested case, the administrative law judge shall issue the order as a proposed order under s. ATCP 1.30. The final decisionmaker shall issue any final order under s. ATCP 1.31 after the final decisionmaker considers objections to the proposed order under s. ATCP 1.30 (2). An order dismissing any party, proceeding or cause of action is a final order under this paragraph. ATCP 1.11 HistoryHistory: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (intro.) and (2) (a) and (b), Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: am. (title), renum. (1) (b) to (e) to be (1) (c) to (f), cr. (1) (b) Register December 2010 No. 660, eff. 1-1-11. ATCP 1.12ATCP 1.12 Party may appear by attorney. ATCP 1.12(1)(1) General. In any contested case, a party may be represented by an attorney who is authorized to practice law in this state. An attorney retained to represent any party in a contested case shall immediately give notice of that representation to the department and to all other parties to the contested case. ATCP 1.12(2)(2) Actions binding. Actions and omissions by a party’s attorney in a contested case are binding on that party, as if the party had taken or omitted those actions directly. ATCP 1.12(3)(3) Service of documents. If a party in a contested case is represented by an attorney, a document served on that attorney is deemed to be served on that party. ATCP 1.13ATCP 1.13 Documents; filing, identification and service. ATCP 1.13(1)(1) Docket file. The department shall create a docket file for every contested case. The docket file shall be captioned with the docket number and title of the case, “In the matter of ......... ”. The docket file shall include the record of the case and any other material filed in connection with the case, subject to the direction of the administrative law judge or final decisionmaker. ATCP 1.13(2)(2) Documents captioned. Pleadings, notices, motions, briefs, stipulations, decisions, orders and other documents filed in a contested case shall, to the extent practicable, be captioned with all of the following: ATCP 1.13(3)(3) Filing deadlines. If a party is required to file a document on or before a specified date, the party complies with the filing deadline if the party mails the document on or before the deadline date. ATCP 1.13(4)(4) Documents filed by parties; service on other parties. ATCP 1.13(4)(a)(a) Except as provided under par. (d), whenever a party files a document in a contested case, that party shall mail or deliver a copy of the document to every other party in the case. ATCP 1.13(4)(b)(b) By filing a document in a contested case, the filing party certifies that he or she has mailed or delivered a copy of the filed document to every other party as required by par. (a). No other affidavit of mailing or service is required. ATCP 1.13(4)(c)(c) If any party claims not to have received a copy of any document filed under par. (a), an affidavit of mailing constitutes presumptive proof of service. ATCP 1.13(4)(d)(d) Paragraphs (a) to (c) do not apply to a complaint, request for hearing, or other document filed under subch. III to initiate a contested case. ATCP 1.13 NoteNote: When the department initiates a contested case in response to a complaint, request for hearing, or other document filed under subch. III, the department provides notice to the other parties in conjunction with the department’s hearing notice under s. ATCP 1.20. Accordingly, the party filing the complaint or request for hearing need not serve a copy on the other parties at the time of filing. ATCP 1.13(5)(5) Documents issued by secretary, final decisionmaker or administrative law judge. Whenever the secretary, final decisionmaker or administrative law judge issues a hearing notice, order, subpoena or other process in a contested case, a copy of that document shall be mailed or delivered to each party in the case. Service by mail may be proved by a signed return receipt. Proof of mailing does not constitute presumptive proof of service. ATCP 1.13 HistoryHistory: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) and (5), Register, June, 1999, No. 522, eff. 7-1-99. ATCP 1.14(1)(1) General. Except as provided under subch. III, a person requesting an order from the administrative law judge or final decisionmaker shall make that request in the form of a motion. A motion shall clearly describe the order sought, and the grounds for granting that order. A person may move the administrative law judge or final decisionmaker for any substantive or procedural order authorized by law, including either of the following: ATCP 1.14(1)(a)(a) An order dismissing a party or case for lack of personal or subject matter jurisdiction. A motion to dismiss for lack of jurisdiction may be made at any point in the proceeding, but should be made as soon as the basis for the motion becomes apparent to the moving party. ATCP 1.14(1)(b)(b) An order dismissing a case, prior to hearing, for failure to state a claim on which relief can be granted. ATCP 1.14(2)(2) Form of motion. Every motion, except the following, shall be submitted in writing:
/exec_review/admin_code/atcp/001/1
true
administrativecode
/exec_review/admin_code/atcp/001/1/iv/10/1/g
Department of Agriculture, Trade and Consumer Protection (ATCP)
Chs. ATCP 1-9; General
administrativecode/ATCP 1.10(1)(g)
administrativecode/ATCP 1.10(1)(g)
section
true
