Chapter Ins 5

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.

Ins 5.39 Ins 5.39 Hearing.

Ins 5.39(1) (1) Date, time and location.

Ins 5.39(1)(a) (a) A hearing shall be held at the date, time and location specified in the notice of hearing under s. Ins 5.12, or at another date, time and location ordered by the administrative law judge. In rescheduling the date, time and location, the administrative law judge shall consider all of the following:

Ins 5.39(1)(a)1. 1. The location and convenience of office staff involved in the proceeding.

Ins 5.39(1)(a)2. 2. The location and convenience of witnesses.

Ins 5.39(1)(a)3. 3. The location and convenience of the parties.

Ins 5.39(1)(b) (b) A hearing, or any portion of a hearing, may be held by telephone or video-conference if the administrative law judge determines that this method is justified for the convenience of any party or witness, and that no party is unfairly prejudiced by this method. The party calling a witness to testify by telephone or video-conference shall notify the administrative law judge before the hearing to allow for making the necessary arrangements and is responsible for providing the witness with a complete set of numbered copies of all exhibits.

Ins 5.39(1)(c) (c) The administrative law judge may adjourn, recess or postpone a hearing as he or she considers appropriate.

Ins 5.39(2) (2) Opening hearing.

Ins 5.39(2)(a) (a) The administrative law judge shall open the hearing with a concise statement of its scope and purpose and shall enter the appearances in the record. If the administrative law judge permits opening statements, they shall be limited to the following:

Ins 5.39(2)(a)1. 1. A brief summary or outline in clear and concise form of the evidence intended to be offered.

Ins 5.39(2)(a)2. 2. A statement of the ultimate legal points relied upon.

Ins 5.39(2)(b) (b) Opening statements are optional with each party, and do not constitute evidence. The administrative law judge may limit the length of opening statements.

Ins 5.39(3) (3) Order of hearing; burden of proof.

Ins 5.39(3)(a) (a) In a class 1 proceeding where the office has denied a license application, the office shall proceed first with the presentation of evidence. The petitioner has the burden of proving, by a preponderance of the evidence, that the denial should be modified or rescinded.

Ins 5.39(3)(b) (b) In a class 2 proceeding, the office shall proceed first with the presentation of evidence and has the burden of proving its case by a preponderance of the evidence.

Ins 5.39(3)(c) (c) In any case not governed by par. (a) or (b), the petitioner shall proceed first with the presentation of evidence unless the administrative law judge specifies a different order of proof to promote an orderly consideration of the contested case. The petitioner has the burden of proof unless the administrative law judge orders otherwise. The standard of proof shall be a preponderance of the evidence. The rules of civil procedure for actions in circuit court shall guide the administrative law judge in deciding the order of proof and the party having the burden of proof, if disputed.

Ins 5.39(4) (4) Witnesses.

Ins 5.39(4)(a) (a) Oath or affirmation. The administrative law judge or court reporter, if one is present, shall administer an oath or affirmation to each witness, including a witness appearing by telephone or video-conference, before he or she testifies, as provided in s. 906.03, Stats.

Ins 5.39(4)(b) (b) Examination of witnesses.

Ins 5.39(4)(b)1. 1. If the office is a party to the proceeding, an employee of the office designated by the commissioner to act as counsel for the office shall examine and cross-examine witnesses on behalf of the office.

Ins 5.39(4)(b)2. 2. A party or the party’s attorney on behalf of the party, may examine and cross-examine witnesses. Only one individual may examine or cross-examine a witness on behalf of a party except with permission from the administrative law judge.

Ins 5.39(4)(b)3. 3. The administrative law judge may examine any witness.

Ins 5.39(4)(c) (c) Adverse witnesses. Any party may call as an adverse witness any other party, any officer, agent or employee of a party or any witness on behalf of a party, if permitted by the administrative law judge.

Ins 5.39(4)(d) (d) Cross-examination. 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 harassment of witnesses.

Ins 5.39(4)(e) (e) Limitation. The administrative law judge may limit the scope of redirect and recross-examination.

Ins 5.39(4)(f) (f) Leading questions. Leading questions may not ordinarily be used in the direct examination of a witness, but may be used in cross-examination. A party may use leading questions in the direct examination of either of the following:

Ins 5.39(4)(f)1. 1. An opposing party, or an officer, agent or employee of an opposing party.

Ins 5.39(4)(f)2. 2. A witness who is hostile, unwilling, adverse or evasive, if the administrative law judge permits the use of leading questions in the examination of that witness.

Ins 5.39(5) (5) Evidence.

Ins 5.39(5)(a) (a) Admissibility.

Ins 5.39(5)(a)1. 1. The receipt of testimony and other evidence in contested cases is governed by s. 227.45, Stats. The administrative law judge shall admit evidence that has reasonable probative value, but shall exclude evidence that is immaterial, irrelevant or unduly repetitious, or that lacks reasonable probative value. The administrative law judge may admit hearsay evidence and shall accord it as much weight as the administrative law judge considers warranted by the circumstances.

Ins 5.39(5)(a)2. 2. Evidence submitted at the hearing need not be limited to matters set forth in the pleadings. If variances occur, the pleadings shall be considered conformed to the evidence. The administrative law judge may grant a postponement if necessary to give a party adequate time to rebut the evidence involved in a variance.

Ins 5.39(5)(b) (b) Objections; offers of proof.

Ins 5.39(5)(b)1. 1. If the administrative law judge sustains an objection to the admission of evidence, the party seeking to have the evidence admitted may make an offer of proof. The administrative law judge shall direct the form of the offer of proof.

Ins 5.39(5)(b)2. 2. Failure of a party to object on the record to the admission of any evidence is a waiver of the right to object.

Ins 5.39(5)(b)3. 3. Failure of a party to make an offer of proof is a waiver of the right to object to the administrative law judge’s ruling on the objection.

Ins 5.39(5)(b)4. 4. The administrative law judge may order the parties to brief any objection. If the party making the objection fails to brief it, the objection is waived.

Ins 5.39(5)(c) (c) Documents. Documentary exhibits shall, as far as practicable, be on 8-1/2 by 11 inch paper, unless the administrative law judge permits otherwise or unless the document is a form printed on 8-1/2 by 14 inch paper. The administrative law judge may order charts used as exhibits to be reduced to 8-1/2 by 11 inch copies.

Ins 5.39(5)(d) (d) Copies. The administrative law judge may permit the filing or use of a copy in place of any original document, subject to authentication by the proponent if its authenticity is challenged in a prehearing motion.

Ins 5.39(5)(e) (e) Prefiled exhibits and prepared testimony. The administrative law judge may permit or order the parties to submit evidence in the form of documentary exhibits or prepared testimony or both before the hearing. The administrative law judge shall specify the date by which the evidence shall be submitted, in order to allow the parties reasonable time for review. Exhibits and testimony submitted under this paragraph shall be admitted in evidence as though given orally if the author is present and available for cross-examination.

Ins 5.39(5)(f) (f) Technical data. If evidence consists of technical data that would make oral presentation difficult to follow, or if information can be more effectively presented visually, it may be presented in exhibit form and supplemented and explained by oral testimony.

Ins 5.39(5)(g) (g) Use of depositions.

Ins 5.39(5)(g)1. 1. Section 804.07, Stats., governs the use of depositions.

Ins 5.39(5)(g)2. 2. The parties may stipulate to the admission of a deposition in addition to those required to be admitted under s. 227.45 (7), Stats.

Ins 5.39(5)(h) (h) Additional evidence. At the hearing, the administrative law judge may order or the parties may stipulate to the admission of additional documentary evidence after the close of testimony. The administrative law judge shall keep the record open until the additional evidence is filed or the specified time for filing it has expired without its being filed. The administrative law judge may, at the request of the stipulating parties, extend the time for filing the additional evidence.

Ins 5.39(6) (6) Off-the-record discussions. During a hearing, the administrative law judge may permit discussions off the record. If the administrative law judge decides that a discussion off the record is relevant, he or she may summarize it on the record or require the parties to discuss the matter on the record.

Ins 5.39(7) (7) Postponement; adjournment. The administrative law judge may, for good cause and after consideration of the potential hardship to other parties, grant a postponement or adjourn a hearing.

Ins 5.39(8) (8) Reopening. After the record is closed, no further evidence shall be added to the record except by order of the administrative law judge. The administrative law judge may reopen the record to take further evidence if a party moves for reopening and shows to the administrative law judge’s satisfaction that there is evidence that could not reasonably have been discovered before the record was closed and that it should be admitted in the interest of justice, or that documentary evidence used at the hearing was inadvertently omitted. The administrative law judge may, on his or her own motion, reopen a hearing to take additional testimony or admit additional documentary evidence.

Ins 5.39 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.40 Ins 5.40 Costs to prevailing party.

Ins 5.40(1) (1) Motion.

Ins 5.40(1)(a) (a) An individual or small business or small nonprofit corporation, as defined in s. 227.485 (2) (c) and (d), Stats., that believes it may be entitled to costs under s. 227.485 (3), Stats., may make a motion for costs as provided in par. (b), (c) or (d). The motion shall include proof that the party is eligible for an award of costs under s. 227.485 (7), Stats.

Ins 5.40(1)(b) (b) If a hearing is held, a party believing that it may prevail shall make a motion for costs, if any, before the close of the hearing. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.

Ins 5.40(1)(c) (c) If the matter is submitted to the administrative law judge on briefs without a hearing, a party believing that it may prevail shall file a motion for costs, if any, at the time the parties agree to submit the matter on briefs or within a reasonable time thereafter as permitted by the administrative law judge, but not later than the due date of the party’s brief. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.

Ins 5.40(1)(d) (d)

Ins 5.40(1)(d)1. 1. If the matter is finally disposed of other than by a decision under s. Ins 5.45, the prevailing party shall file a motion for costs, if any, and a brief in support of the motion within 30 calendar days after receiving notice of the final disposition, except that if the parties settle the matter by stipulation, a prevailing party may not file a motion for costs unless the stipulation expressly authorizes the party to do so.

Ins 5.40(1)(d)2. 2. The attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall file a brief in opposition to the motion within 30 calendar days after the deadline for filing under subd. 1.

Ins 5.40(2) (2) Proposed decision on motion.

Ins 5.40(2)(a) (a) If the motion for costs is filed under sub. (1) (b) or (c), the administrative law judge shall decide the motion as part of the proposed decision under s. Ins 5.43. Even if the administrative law judge is the final decision maker in the matter, the decision on the motion for costs shall be issued as a proposed decision.

Ins 5.40(2)(b) (b) If the motion for costs is filed under sub. (1) (d), the administrative law judge shall issue a proposed decision on the motion under s. Ins 5.43.

Ins 5.40(2)(c) (c) The parties may file written objections to the proposed decision under s. Ins 5.43 (2).

Ins 5.40(3) (3) Procedure for determining costs.

Ins 5.40(3)(a) (a) Documentation. If the administrative law judge recommends that the prevailing party be awarded costs, the prevailing party shall, within 30 calendar days after service of the proposed decision under sub. (2), submit documentation of all of the following to the administrative law judge and to the office, board, plan, fund or council:

Ins 5.40(3)(a)1. 1. The number of hours for which compensation is sought, itemized according to the work performed, the dates it was performed and the identity of the individual performing the work.

Ins 5.40(3)(a)2. 2. The hourly rate customarily charged by each individual for whom compensation is sought and, if compensation in excess of $75 an hour for attorney fees is sought, justification for a higher rate as required under s. 814.245 (5) (a) 2., Stats.

Ins 5.40(3)(a)3. 3. Costs for which reimbursement is sought.

Ins 5.40(3)(b) (b) Reply. Within 15 calendar days after the submission of documentation under par. (a), the attorney representing the office, board, plan, fund or council which is a party to the contested case may file a written response contesting any of the costs.

Ins 5.40(3)(c) (c) Determination of costs. The administrative law judge shall determine the eligible costs as provided under s. 227.485 (5), Stats., and if the final decision maker awards costs, the amount awarded shall be included in the final decision.

Ins 5.40(4) (4) Final decision. If the final decision maker awards costs despite the administrative law judge’s recommendation to the contrary, the parties and the administrative law judge shall, after the final decision is issued, follow the procedure in sub. (3) within the specified time periods.

Ins 5.40(5) (5) Judicial review. A final decision awarding costs is subject to judicial review under s. 227.52, Stats. A party may seek judicial review of a final decision granting or denying an award of costs, regardless of whether the party petitions for judicial review of the final decision on the merits of the contested case.

Ins 5.40 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.41 Ins 5.41 Arguments; briefing.

Ins 5.41(1) (1) Filing.

Ins 5.41(1)(a) (a) Unless the administrative law judge permits oral argument instead of briefing or determines that briefing is not necessary, each party shall file a written brief conforming to sub. (2) on the issues involved in the hearing. If a brief contains a summary of evidence or facts relied on, it shall, if possible, include references to specific exhibits or pages of the record containing the evidence. No new evidence may be attached to or referred to in a brief, other than evidence admitted under s. Ins 5.39 (8).

Ins 5.41(1)(b) (b) The party having the burden of proof shall file the first brief, unless the parties stipulate to the simultaneous filing of briefs. The administrative law judge may permit or order the filing of reply briefs. Each party shall file its brief by the date specified by the administrative law judge, unless he or she grants an extension of the time for good cause shown. The administrative law judge may refuse to consider any brief that is not filed on a timely basis. The filing of a party’s brief before the specified date does not affect the deadlines for subsequent briefs.

Ins 5.41(2) (2) Format; length.