Chapter Ins 5

Ins 5.19(3) (3) Limits of authority. The administrative law judge may not exercise any authority that is reserved to the final decision maker under this chapter, unless the commissioner or a board orders that the administrative law judge’s decision is the final decision.

Ins 5.19(4) (4) Impartiality.

Ins 5.19(4)(a) (a) An administrative law judge shall withdraw from a contested case if he or she has a personal bias regarding the matter or another reason for disqualification that prevents him or her from acting in an impartial manner.

Ins 5.19(4)(b) (b) A party filing a motion under s. 227.46 (6), Stats., to disqualify an administrative law judge in a class 2 or 3 proceeding shall include in an affidavit attached to the motion a description of each specific act or situation which the party believes demonstrates the administrative law judge’s personal bias or other basis for disqualification. The party shall also file a brief citing any applicable case law on which the party relies.

Ins 5.19(4)(c) (c) A motion under par. (b) is timely if it is filed before the prehearing conference or within 10 days after the party acquires knowledge or, with reasonable diligence, should have acquired knowledge of facts allegedly demonstrating personal bias or other reason for disqualification of the administrative law judge.

Ins 5.19(4)(d) (d) Failure to file a timely and sufficient affidavit under par. (b) constitutes a waiver of the right to object to the qualification of the administrative law judge.

Ins 5.19(4)(e) (e) An administrative law judge is not disqualified solely because he or she is an employee of the office, or solely because the administrative law judge has presided over a case involving the same or related parties, facts or issues in the past.

Ins 5.19(5) (5) 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.

Ins 5.19 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.21 Ins 5.21 Failure to appear, answer or comply with administrative law judge’s order.

Ins 5.21(1) (1) Failure to answer or appear.

Ins 5.21(1)(a) (a) If a party other than due to excusable neglect, fails to file an answer by the date specified in the notice of hearing or fails to appear at the prehearing conference or fails to appear at the scheduled hearing, the administrative law judge shall promptly issue and serve a final decision finding the party in default, accepting the opposing party’s allegations as true and deciding the case based on those allegations. If proof of any fact is necessary for the administrative law judge to issue the decision the administrative law judge shall receive the proof.

Ins 5.21(1)(b) (b) The administrative law judge may relieve a party from a default decision only if:

Ins 5.21(1)(b)1. 1. The party files a motion for relief within a reasonable time but not more than one year after the decision is mailed; and

Ins 5.21(1)(b)2. 2. The party establishes that the failure to file an answer or to appear was due to excusable neglect. For the purpose of this paragraph failure to receive a notice, pleading, decision, or other document in a proceeding is not a basis to establish excusable neglect if the notice, pleading, decision, or other document was mailed to the address of a licensee of the office at the address shown in the office records, to an address provided by the party in the course of the proceeding or to the address of an attorney representing the party. If the office does not have such an address, failure to receive the document does not establish excusable neglect if the document is mailed to an address the party represents to the public or otherwise as a business address.

Ins 5.21(2) (2) Sanctions against disobedient party. If a party fails to disclose witnesses or evidence under s. Ins 5.35, fails to comply with a subpoena, fails to make a required appearance, fails to respond to discovery or fails to comply with an order issued by the administrative law judge, the administrative law judge, on his or her own motion or on a motion by an opposing party, may by order do any of the following which the administrative law judge considers just in relation to the disobedient party’s failure:

Ins 5.21(2)(a) (a) Disqualify the disobedient party from further participation in the proceedings.

Ins 5.21(2)(b) (b) Stay further proceedings until the disobedient party cures the failure.

Ins 5.21(2)(c) (c) Prohibit the disobedient party from arguing designated issues or introducing designated matters in evidence.

Ins 5.21(2)(d) (d) Dismiss the proceeding, or any part of the proceeding, if the proceeding was initiated at the request of the disobedient party.

Ins 5.21(2)(e) (e) Strike the pleadings of the disobedient party or render a decision accepting the opposing party’s allegations as true and decide the case based on the allegations, or both.

Ins 5.21(2)(f) (f) Award expenses as provided under s. 804.12 (1) (c), (2) (b) or (3), Stats., against a party subject to an action brought by the office. Under this section, expenses cannot be awarded against the state or its agencies.

Ins 5.21(2)(g) (g) Impose a forfeiture under s. 601.64, Stats., against a respondent subject to an action brought by the office for any violation of an order of the administrative law judge compelling discovery. An order compelling discovery issued by the administrative law judge to a respondent is an order under s. 601.41 (4), Stats. Under this section, a forfeiture cannot be imposed against the state or its agencies.

Ins 5.21(3) (3) Notice; opportunity to object.

Ins 5.21(3)(a) (a) If an order under sub. (2) would constitute a final decision in the contested case, the administrative law judge shall issue the order as a proposed decision under s. Ins 5.43, giving the parties opportunity to object. An order dismissing any party, proceeding or cause of action is a final decision for purposes of s. 227.52, Stats.

Ins 5.21(3)(b) (b) The final decision maker shall issue the final decision under s. Ins 5.45 after considering any objections to the proposed decision under s. Ins 5.43 (2).

Ins 5.21(3)(c) (c) The final decision maker may order the hearing reopened if the party to whom the proposed decision is issued shows good cause for any failure described in sub. (2) (intro.).

Ins 5.21 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: am. (1), (2) (intro.), cr. (2) (e) to (g) Register June 2005 No. 594, eff. 7-1-05.

subch. VII of ch. Ins 5 Subchapter VII — Motions; Subpoenas; Record; Miscellaneous Provisions

Ins 5.23 Ins 5.23 Appearances.

Ins 5.23(1) (1) A party may appear in person or by an attorney licensed to practice law in this state.

Ins 5.23(2) (2) Each party or person appearing for a party shall furnish his or her name and mailing address to the administrative law judge and shall promptly notify the administrative law judge of any change of address. The mailing address last furnished to the administrative law judge shall be conclusively presumed to be the correct address.

Ins 5.23 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.25 Ins 5.25 Motions.

Ins 5.25(1) (1) General. A person requesting an order from the administrative law judge shall make the request in the form of a motion which clearly describes the order sought and the grounds for granting it. A person may move the administrative law judge for any substantive or procedural order authorized by law, including any of the following:

Ins 5.25(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 shall be made as soon as the basis for the motion becomes apparent to the moving party.

Ins 5.25(1)(b) (b) An order dismissing a contested case before a hearing for failure to state a claim on which relief can be granted.

Ins 5.25(1)(c) (c) An order granting summary judgment as to any issue or the entire matter under consideration. A motion for summary judgment shall be brought and decided in accordance with s. 802.08, Stats.

Ins 5.25(2) (2) Form of motion. Every motion, except the following, shall be submitted in writing with at least 7 calendar days’ notice to all parties, unless each nonmoving party waives the notice requirement:

Ins 5.25(2)(a) (a) An oral motion made at a prehearing conference or hearing, unless the administrative law judge requires that the motion be submitted in writing.

Ins 5.25(2)(b) (b) An oral motion for an extension of time to file a paper. An administrative law judge may rule on a motion under this paragraph on an ex parte basis. The administrative law judge shall notify every other party if the motion is granted.

Ins 5.25(3) (3) Written motions. A person filing a written motion shall comply with s. Ins 5.17 (1) to (5). A moving party offering any affidavit, brief or other document in support of a motion shall include a copy of each document with the motion unless the administrative law judge permits or orders otherwise.

Ins 5.25(4) (4) Motion hearing; notice.

Ins 5.25(4)(a) (a) Except as provided in sub. (2) (b), the administrative law judge shall give all parties an opportunity to argue a motion, orally or in writing, before ruling on it. The administrative law judge shall notify all parties of any scheduled motion hearing.

Ins 5.25 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: cr. (1) (c) Register June 2005 No. 594, eff. 7-1-05.

Ins 5.27 Ins 5.27 Subpoenas.

Ins 5.27(1) (1) General. The administrative law judge or a party’s attorney of record may issue a subpoena in a contested case to compel the attendance of any witness or the production of relevant evidence. The person issuing the subpoena shall serve a copy on all other parties. Sections 814.67 and 885.06, Stats., govern the payment of witness fees and expenses.

Ins 5.27(2) (2) Request for subpoena. A party may request the administrative law judge to issue a subpoena on behalf of that party by submitting the proposed subpoena for the administrative law judge’s signature. The administrative law judge may not sign a blank subpoena form. The requesting party is responsible for serving the subpoena and for paying any service, witness and travel fees.

Ins 5.27(3) (3) Denial; limitations. The administrative law judge may limit the scope of a subpoena or deny a request for a subpoena if it appears to be unreasonable, oppressive, excessive in scope or unduly burdensome.

Ins 5.27(4) (4) Compliance. In addition to the sanctions provided under s. Ins 5.21, a person who fails to comply with a subpoena issued under this section may be compelled as provided under s. 885.12, Stats., and may be subject to administrative sanctions including, but not limited to, sanctions for a violation of an order issued under ss. 601.41 (4) and 601.42 (4), Stats.

Ins 5.27 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: am. (4) Register June 2005 No. 594, eff. 7-1-05.

Ins 5.29 Ins 5.29 Record of oral proceedings; transcripts.

Ins 5.29(1) (1) Method of recording.

Ins 5.29(1)(a) (a) The administrative law judge shall provide for a stenographic or electronic recording of oral proceedings in a contested case. Proceedings shall be electronically recorded unless a board is the final decision maker or the administrative law judge determines that a stenographic record is necessary, in which case, the office or administrative law judge shall provide for the stenographic record.

Ins 5.29(1)(b) (b) Instead of an electronic recording of oral proceedings, any party may provide for a stenographic record at the party’s own expense. A party other than the office that provides for a stenographic record shall furnish the administrative law judge with the original and the attorney for the office, if any, with a copy of the transcript at no cost.

Ins 5.29(1)(c) (c) Any party may make his or her own electronic audio recording of a proceeding.

Ins 5.29(2) (2) Electronic recording; copies. If the administrative law judge makes an electronic recording of oral proceedings in a contested case, the administrative law judge shall furnish a copy of the recording to any party who requests a copy. The fee for an audio cassette recording is $10.00 per cassette or any part of a cassette, except as provided in sub. (4).

Ins 5.29(3) (3) Transcript.

Ins 5.29(3)(a) (a)

Ins 5.29(3)(a)1. 1. The administrative law judge may order the preparation of a transcript from an electronic recording at the request of the parties or at the administrative law judge’s discretion.

Ins 5.29(3)(a)2. 2. If some or all parties agree that a transcript is needed, the administrative law judge shall furnish each party requesting a transcript with a copy of the prepared transcript. The parties requesting a transcript shall share the cost of preparation equally, except as provided in sub. (4).

Ins 5.29(3)(b) (b) Any party, within 14 calendar days after the date the transcript is delivered or mailed, may file with the administrative law judge a written notice of any claimed error, and shall serve a copy of the notice on every other party. Any other party may contest the claimed error within 20 calendar days after the date the notice was mailed or delivered by notifying the administrative law judge and the other parties. The administrative law judge shall make a determination on the claim of error and shall notify all parties of any corrections.

Ins 5.29(3)(c) (c) If the office prepares a written transcript for its own purposes, or at the request of any party for purposes of judicial review under s. 227.53, Stats., the office shall assume the cost of transcription. Any person may obtain a copy of the transcript by paying the office’s standard copying fee for public records.

Ins 5.29(4) (4) Copies for indigent parties. The office or administrative law judge shall furnish a free copy of the transcript, if one has been prepared, or of the electronic recording of proceedings to any party who submits a written motion and demonstrates to the administrative law judge’s satisfaction that the party has a legal need for it and cannot afford to purchase a copy. The request shall include the purpose for which the copy is needed.

Ins 5.29 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.31 Ins 5.31 Proceedings open to public; exceptions.

Ins 5.31(1) (1) Proceedings open. The public may attend the proceedings in every contested case except as provided in s. 601.44 (6) or 645.24 (1), Stats., or as otherwise ordered by the administrative law judge.

Ins 5.31(2) (2) Exceptions. Upon motion by any party, the administrative law judge may do any of the following by order:

Ins 5.31(2)(a) (a) 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, as defined in s. 227.46 (7) (b), Stats., or other information which is protected by law from public disclosure.

Ins 5.31(2)(b) (b) 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.

Ins 5.31(2)(c) (c) Prohibit any person from further attendance at a proceeding if that person engages in disruptive behavior which inhibits the orderly conduct of the proceeding.

Ins 5.31 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

subch. VIII of ch. Ins 5 Subchapter VIII — Prehearings; Hearing Procedure

Ins 5.33 Ins 5.33 Prehearing conference.

Ins 5.33(1) (1) Purposes. One or more prehearing conferences may be held to consider or determine any of the following:

Ins 5.33(1)(a) (a) Possibilities for settling the case.

Ins 5.33(1)(b) (b) The clarification of issues.

Ins 5.33(1)(c) (c) The necessity or desirability of amending the pleadings.

Ins 5.33(1)(d) (d) The possibility of obtaining stipulations of fact, law or evidence that will avoid unnecessary arguments or offers of proof.

Ins 5.33(1)(e) (e) The party having the burden of proof in the proceeding.

Ins 5.33(1)(f) (f) The identification of witnesses and evidence for hearing.

Ins 5.33(1)(g) (g) Limitations on the number of witnesses.

Ins 5.33(1)(h) (h) The deadline for prefiling exhibits and prepared testimony under s. Ins 5.39 (5) (e).

Ins 5.33(1)(i) (i) Prehearing motions and discovery requests.

Ins 5.33(1)(j) (j) The need for an interpreter under s. 885.37 (3) (b), Stats.

Ins 5.33(1)(k) (k) The scheduling of proceedings in the contested case, including the date, time and location of additional prehearing conferences, motion hearings and the hearing.

Ins 5.33(1)(L) (L) The scheduling of any telephonic testimony that will be offered.

Ins 5.33(1)(m) (m) Other matters which may aid the orderly consideration and disposition of the contested case.

Ins 5.33(2) (2) 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. Agreements reached are binding on the parties throughout the proceeding, except as otherwise ordered by the administrative law judge. The administrative law judge may, in conjunction with the memorandum, issue any procedural orders necessary to implement the actions taken at the prehearing conference. Copies of the memorandum shall be served on all parties.