Section 5.21. Failure to appear, answer or comply with administrative law judge's order.

 

(1)   Failure to answer or appear.

(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.

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

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

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.

(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:

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

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

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

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

(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.

(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.

(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.

(3)   Notice; opportunity to object.

(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.

(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) .

(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.) .

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.