HA 2.01HA 2.01 Application of rules. HA 2.01(1)(1) Authority. These rules are promulgated under the authority of s. 301.035 (5), Stats., and interpret ss. 302.11 (7), 302.113 (9) (am), 302.114 (9) (am), 938.357 (5), 973.09, 973.10, 973.155, 975.10 (2), Stats., and ch. 304, Stats. HA 2.01(2)(2) Scope. This chapter applies to corrections hearings under ss. 302.11 (7), 973.10, 975.10 (2) and ch. 304, Stats. The procedural rules of general application contained in this chapter also apply to youth aftercare revocation proceedings in any situation not specifically dealt with in ch. DOC 393. HA 2.01 HistoryHistory: Cr. Register, December, 1991, No. 432, eff. 1-1-92; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527; CR 01-018: am. Register September 2001 No. 549, eff. 10-1-01; corrections in (1) made under s. 13.92 (4) (b) 7., Stats., Register May 2010 No. 653. HA 2.02HA 2.02 Definitions. For purposes of this chapter: HA 2.02(1)(1) “Administrative law judge” means an administrative hearing examiner employed by the division of hearings and appeals. HA 2.02(2)(2) “Administrator” means the administrator of the division of hearings and appeals. HA 2.02(3)(3) “Client” means the person who is committed to the custody of the department of corrections and is the subject of the corrections hearing. HA 2.02(4)(4) “Conditions” means specific regulations imposed on the client by the court or department. HA 2.02(5)(5) “Day” means any working day, Monday through Friday, excluding legal holidays, except as specifically provided otherwise in s. HA 2.05 (4) (a). HA 2.02(6)(6) “Department” means the department of corrections. HA 2.02(7)(7) “Division” means the division of hearings and appeals. HA 2.02 NoteDivision of Hearings and Appeals Note (CR 09-101): “Offender” as used in this chapter was intended to have the same meaning as “client”. A definition of “offender” will be created by future rule making. HA 2.02(8)(8) “Revocation” means the removal of a client from probation, parole, extended supervision or youth aftercare supervision. HA 2.02(9)(9) “Rules” means those written department regulations applicable to a specific client under supervision. HA 2.02(10)(10) “Supervision” means the control and supervision of clients exercised by the department of corrections. HA 2.03HA 2.03 Service of documents. HA 2.03(1)(1) By the division. The division may issue decisions, orders, notices and other documents by first class mail, inter-departmental mail, electronic mail or by facsimile transmission. HA 2.03(2)(2) By a party. Unless specified otherwise by law or this chapter, materials filed by a party with the division may be delivered personally or by first class, certified or registered mail, inter-departmental mail, electronic mail or by facsimile transmission. All correspondence, papers or other materials submitted by a party shall be provided on the same date by that party to all other parties to the proceeding. No affidavit of mailing, certification, or admission of service need be filed with the division. HA 2.03(3)(3) Filing date. Materials mailed to the division shall be considered filed with the division on the date of the postmark. Materials submitted personally or by inter-departmental mail or electronic mail shall be considered filed on the date they are received by the division. Materials transmitted by facsimile shall be considered filed on the date they are received by the division as recorded on the division facsimile machine. HA 2.04HA 2.04 Witnesses and subpoenas. An attorney may issue a subpoena to compel the attendance of witnesses under the same procedure as provided by s. 805.07 (1), Stats. The secretary of the department of corrections, or any person authorized by the secretary to act in his or her stead, may issue a subpoena to require the attendance of witnesses, on behalf of the department of corrections, in any community supervision revocation proceeding as provided by s. 301.045, Stats. If a person on community supervision is not represented by an attorney, the division or the administrative law judge may issue subpoenas as provided in ch. 885, Stats. HA 2.05(1)(1) Notice. Notice of a final revocation hearing shall be sent by the division within 5 days of receipt of a hearing request from the department to the offender, the offender’s attorney, if any, and the department’s representative. The notice shall include: HA 2.05(1)(b)(b) The conduct that the client is alleged to have committed and the rule or condition that the offender is alleged to have violated; HA 2.05(1)(d)(d) Unless otherwise confidential or disclosure would threaten the safety of a witness or another, a list of the potential evidence and potential witnesses to be considered at the hearing which may include any of the following: HA 2.05(1)(e)(e) A statement that whatever information or evidence is in the possession of the department is available from the department for inspection unless otherwise confidential; HA 2.05(1)(f)1.1. The department’s recommendation for forfeiture of good time and any sentence credit in accordance with s. 973.155, Stats.; or HA 2.05(1)(f)2.2. The department’s recommendation for a period of reincarceration and any sentence credit in accordance with statutes. HA 2.05(1)(h)(h) In extended supervision cases under s. 302.114 (9) (am), Stats., for persons serving a life sentence, the department’s recommended period of time for which the person shall be reconfined before being released again to extended supervision. HA 2.05(2)(2) Amendments. Any notice information required under s. HA 2.05 (1) may be amended and additional allegations may be added by the department if the client and the attorney, if any, are given written notice of the amendment at least 5 days prior to the hearing and the amendment does not materially prejudice the client’s right to a fair hearing. HA 2.05(3)(3) Offender’s rights. The offender’s rights at the hearing include any of the following: HA 2.05(3)(a)(a) The right to attend the hearing in person or by electronic means. HA 2.05(3)(h)(h) The right to receive a written decision stating the reasons for it based upon the evidence presented. HA 2.05(4)(a)(a) If a client is detained in a county jail or other county facility pending disposition of the hearing, the division shall begin a hearing within 50 calendar days after the person is detained by the department in the county jail or county facility. If not so detained, the hearing shall begin within a reasonable time from the date the hearing request is received. HA 2.05(4)(b)(b) A hearing may be rescheduled or adjourned for good cause taking into consideration the following factors: HA 2.05(4)(b)9.9. The convenience or inconvenience to the parties, witnesses and the division; and HA 2.05(4)(b)10.10. Whether the client and the client’s attorney, if any, have had adequate notice and time to prepare for the hearing. HA 2.05(4)(c)(c) Any party requesting that a hearing be rescheduled shall give notice of such request to the opposing party. HA 2.05(5)(a)(a) The identity of a witness may be withheld from the client if disclosure of the identity would threaten the safety of the witness or another. HA 2.05(5)(b)(b) Testimony of a witness may be taken outside the presence of the client when there is substantial likelihood that the witness will suffer significant psychological or emotional trauma if the witness testifies in the presence of the client or when there is substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the client at hearing. The administrative law judge shall indicate in the record that such testimony has been taken and the reasons for it and must give the client an opportunity to submit questions to be asked of the witness. HA 2.05(5)(c)(c) The hearing examiner [administrative law judge] shall give the client and the client’s attorney an opportunity on the record to oppose protection of a witness before any such action is taken. HA 2.05(6)(a)(a) The hearing may be closed to the public and shall be conducted in accordance with this chapter. The administrative law judge may conduct the hearing by video conference. The hearing may also be conducted by telephone conference if all parties agree. If all parties do not agree to conduct a hearing by telephone conference, the administrative law judge may conduct the hearing by telephone conference if there is no factual dispute regarding the violations alleged by the department or when the administrative law judge determines that good cause exists to conduct the hearing by telephone conference. All witnesses for and against the offender, including the offender, shall have a chance to speak and respond to questions. HA 2.05(6)(b)(b) The administrative law judge shall weigh the credibility of the witnesses. HA 2.05(6)(c)(c) Evidence to support or rebut the allegation may be offered. Evidence gathered by means not consistent with ch. DOC 328 or in violation of the law may be admitted as evidence at the hearing. HA 2.05(6)(d)(d) The administrative law judge may accept hearsay evidence. HA 2.05(6)(e)(e) The rules of evidence other than ch. 905, Stats., with respect to privileges do not apply except that unduly repetitious or irrelevant questions may be excluded. HA 2.05(6)(f)(f) The department has the burden of proof to establish, by a preponderance of the evidence, that the client violated the rules or conditions of supervision. A violation is proven by a judgment of conviction arising from conduct underlying an allegation. HA 2.05(6)(g)(g) The administrative law judge may take an active role to elicit facts not raised by the client or the client’s attorney, if any, or the department’s representative. HA 2.05(6)(h)(h) Alternatives to revocation and any alibi defense offered by the client or the client’s attorney, if any, shall be considered only if the administrative law judge and the department’s representative have received notice of them at least 5 days before the hearing, unless the administrative law judge allows a shorter notice for cause. HA 2.05(6)(i)(i) The administrative law judge may issue any necessary recommendation to give the department’s representative and the client reasonable opportunity to present a full and fair record. HA 2.05(7)(a)(a) The administrative law judge shall consider only the evidence presented in making the decision. HA 2.05(7)(b)1.1. Decide whether the client committed the conduct underlying the alleged violation; HA 2.05(7)(b)2.2. Decide, if the client committed the conduct, whether the conduct constitutes a violation of the rules or conditions of supervision; HA 2.05(7)(b)3.3. Decide, if the client violated the rules or conditions of supervision, whether revocation should result or whether there are appropriate alternatives to revocation. Violation of a rule or condition is both a necessary and a sufficient ground for revocation of supervision. Revocation may not be the disposition, however, unless the administrative law judge finds on the basis of the original offense and the intervening conduct of the client that: HA 2.05(7)(b)3.a.a. Confinement is necessary to protect the public from further criminal activity by the client; or
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