Chapter ATCP 1

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.

ATCP 1.25(6)(b) (b) At the discretion of the administrative law judge under sub. (1) (c) or (d), a witness may testify by telephone or videoconferencing rather than in person.

ATCP 1.25(6)(c) (c) Cross-examination is not limited to matters covered on direct examination. The administrative law judge may limit cross-examination, as necessary, to avoid needless waste of time or undue harrassment of witnesses.

ATCP 1.25(6)(d) (d) Leading questions may not ordinarily be used in the direct examination of witnesses, but may be used in the cross-examination of witnesses. A party may use leading questions in the direct examination of either of the following:

ATCP 1.25(6)(d)1. 1. An opposing party, or an employee or agent of an opposing party.

ATCP 1.25(6)(d)2. 2. A witness who is hostile, unwilling, adverse or evasive, if the administrative law judge permits the examining party to use leading questions in the examination of that witness.

ATCP 1.25 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) (a) (intro.), (b) and (c), (2), (3), (4) (b) and (c), (5), (6) (a) to (c) and (d) 2., Register, June, 1999, No. 522, eff. 7-1-99; CR 09-054: renum. (1) (b) and (c) to be (1) (c) and (b), cr. (1) (d), am. (4) (b), (c), (6) (b) Register December 2010 No. 660, eff. 1-1-11.

ATCP 1.26 ATCP 1.26 Briefs. The administrative law judge may require or permit the parties to file arguments in the form of written briefs, or in the form of a proposed decision. The administrative law judge may establish deadlines for the filing of briefs, and may refuse to consider any brief which is not filed on a timely basis.

ATCP 1.26 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. Register, June, 1999, No. 522, eff. 7-1-99.

subch. VI of ch. ATCP 1 Subchapter VI — Decisions and Judicial Review

ATCP 1.30 ATCP 1.30 Proposed decision.

ATCP 1.30(1) (1) Issued by administrative law judge. If the administrative law judge is not the final decisionmaker in a contested case, the administrative law judge shall prepare a proposed decision for consideration by the final decisionmaker. The proposed decision shall include proposed findings of fact, proposed conclusions of law, a proposed final order, and the administrative law judge’s signed opinion explaining the proposed decision. A copy of the proposed decision shall be mailed or delivered to every party to the contested case.

ATCP 1.30(2) (2) Objections by parties.

ATCP 1.30(2)(a) (a) Any party may file written objections to the administrative law judge’s proposed decision under sub. (1). Unless the final decisionmaker specifies a different time period, an objecting party shall file objections within a time period specified by the administrative law judge. The objecting party shall identify the legal or factual grounds for each objection, and may file a written brief or argument in support of the objections.

ATCP 1.30(2)(b) (b) A final decisionmaker may do either of the following:

ATCP 1.30(2)(b)1. 1. Extend or limit the time for filing objections.

ATCP 1.30(2)(b)2. 2. Permit the parties to make further oral or written arguments to the final decisionmaker.

ATCP 1.30 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (1) and (2) (a), Register, June, 1999, No. 522, eff. 7-1-99.

ATCP 1.31 ATCP 1.31 Final decision.

ATCP 1.31(1) (1) General. The final decisionmaker, after considering any proposed decision and objections under s. ATCP 1.30, shall issue the final decision in a contested case. The final decision shall include findings of fact, conclusions of law and an order.

ATCP 1.31(2) (2) Administrative law judge as final decisionmaker. If the administrative law judge is also the final decisionmaker, the administrative law judge may do either of the following:

ATCP 1.31(2)(a) (a) Issue a proposed decision under s. ATCP 1.30 before issuing a final decision under sub. (1).

ATCP 1.31(2)(b) (b) Issue a final decision under sub. (1) without first issuing a proposed decision under s. ATCP 1.30.

ATCP 1.31(3) (3) Identification of parties; service on parties. The department shall mail or deliver a copy of the final decision to every party in a contested case. The name and address of every party shall be included with the final decision.

ATCP 1.31(4) (4) Variance from proposed decision. If the final decision varies from the administrative law judge’s proposed decision, the final decision shall explain the reasons for the variation.

ATCP 1.31(5) (5) Petition for rehearing or judicial review; notice of rights. The following statement, or its equivalent, shall be included with the final decision pursuant to s. 227.48, Stats.:

“A party adversely affected by this final decision may file a written petition for rehearing under s. 227.49, Stats., within 20 days after he or she is served with the decision under s. 227.48. A petition for rehearing, if any, shall specify in detail the grounds for rehearing.

A party adversely affected by this final decision may also seek judicial review under ss. 227.52 and 227.53, Stats., by filing a petition for judicial review within 30 days after he or she is served with the decision under s. 227.48. In any petition for judicial review, the Wisconsin Department of Agriculture, Trade and Consumer Protection shall be named as the respondent.”

ATCP 1.31(6) (6) Motion for costs and attorneys fees; notice of rights. If a prevailing party in a contested case may be entitled to costs and attorneys fees under s. 227.485, Stats., the final decision shall include notice of the procedure for requesting an award of costs and attorneys fees under s. ATCP 1.32.

ATCP 1.31 History History: Cr. Register, May, 1992, No. 437, eff. 6-1-92; am. (2) and (4), Register, June, 1999, No. 522, eff. 7-1-99; CR 01-028: r. and recr. (2), Register September 2001 No. 549, eff. 10-1-01.

ATCP 1.32 ATCP 1.32 Award of costs and attorneys fees.

ATCP 1.32(1) (1) Motion; itemized statement. If an individual, small non-profit corporation or small business is a prevailing party in a contested case, that prevailing party may submit a motion for costs and attorneys fees under s. 227.485, Stats. A prevailing party shall submit the motion within 30 days after the administrative law judge issues a proposed decision under s. ATCP 1.30 (1) or 1.31 (2) (a) or, if the administrative law judge issues a final decision under s. ATCP 1.31 (2) (b) without issuing a proposed decision, within 30 days after the administrative law judge issues that final decision.