Chapter Ins 5

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.

Ins 5.33(3) (3) Submission on briefs. If the parties agree, during or after a prehearing conference, that there is no dispute of material fact, the matter may be submitted to the administrative law judge on written stipulated facts and briefs, as provided in s. Ins 5.41.

Ins 5.33 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; correction in (1) (j) made under s. 13.93 (2m) (b) 7., Stats., Register June 2005 No. 594.

Ins 5.35 Ins 5.35 Discovery.

Ins 5.35(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), Stats., and ch. 804, Stats.

Ins 5.35(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), Stats., 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.

Ins 5.35(3) (3) Exchange of evidence and witness lists.

Ins 5.35(3)(a) (a) Except as provided under par. (b), or unless the administrative law judge orders otherwise, each party in a contested case shall serve every other party with all of the following by the date ordered by the administrative law judge:

Ins 5.35(3)(a)1. 1. The name and address of every person whom the party intends to call as a witness at the hearing. Expert witnesses shall be identified as such.

Ins 5.35(3)(a)2. 2. A copy of every document which the party intends to offer as evidence at the hearing.

Ins 5.35(3)(a)3. 3. A description of each item of physical evidence which the party intends to offer as evidence at the hearing. 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 before the hearing.

Ins 5.35(3)(b) (b) Paragraph (a) does not apply to witnesses or evidence used solely to impeach witness testimony.

Ins 5.35(3)(c) (c) After considering all of the following and any other relevant factors, the administrative law judge may exclude evidence offered by a party who, without showing good cause, fails to comply with par. (a):

Ins 5.35(3)(c)1. 1. The prejudice or surprise to the party against whom the evidence is offered and the ability of the party to cure any prejudice.

Ins 5.35(3)(c)2. 2. The extent to which waiver of the requirements of par. (a) would disrupt the orderly and efficient hearing of the contested case.

Ins 5.35(3)(c)3. 3. Bad faith or willfulness in failing to comply with par. (a).

Ins 5.35(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 in any contested case, including a class 2 contested case.

Ins 5.35(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.

Ins 5.35 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.37 Ins 5.37 Stipulations; settlement.

Ins 5.37(1) (1) Stipulations. The parties may stipulate to any matter at issue in a contested case. The parties may submit a written stipulation signed by the parties to the administrative law judge who shall enter it in the record. During a proceeding, the administrative law judge, or any of the parties at the direction of the administrative law judge, shall dictate the contents of any oral stipulation for inclusion in the record.

Ins 5.37(2) (2) Settlement. At any time during a contested case proceeding, the parties may agree to settle the case. The parties shall notify the administrative law judge of the agreement to settle.

Ins 5.37 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.