Section 1.25. Hearing.

 

(1)   Hearing time and location.

(a) A contested case hearing shall be held at a time and location specified in the hearing notice under s. ATCP 1.20 , or at a time and location specified by the administrative law judge. In determining the hearing time and location, the administrative law judge shall consider all of the following:

1. The location and convenience of the parties.

2. The location and convenience of department personnel involved in the proceeding.

3. The location and convenience of witnesses involved in the proceeding.

4. Public interest and convenience in attending the proceeding.

(b) The administrative law judge may adjourn, recess or postpone a hearing as the administrative law judge deems appropriate.

(c) A hearing, or any portion of a hearing, may be held by telephone if the administrative law judge determines that the telephone hearing is justified for the convenience of any party or witness, and that no party is unfairly prejudiced by the telephone hearing.

(d) The administrative law judge may on his or her own motion, or on the motion of any party, hold a hearing or any portion of a hearing by videoconferencing technology as defined in s. 885.52 (3) , Stats., if all of the following apply:

1. The administrative law judge determines that the standards and criteria set forth in ss. 885.54 and 885.56 , Stats., are met.

2. The department or the party requesting the use of videoconferencing technology agrees to pay the cost of using that technology.

(2)   Hearings open to public.

(a) Except as ordered by the administrative law judge, every contested case hearing is open to attendance by the public.

(b) Upon motion by any party, the administrative law judge may do either of the following:

1. By order, 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 or other information which is protected by law from public disclosure.

2. By order, 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.

(c) The administrative law judge may, by order, prohibit any person from further attendance at a proceeding if that person engages in disruptive behavior which inhibits the orderly conduct of the proceeding.

(3)   Opening statements and closing arguments. Opening statements and closing arguments are optional, and do not constitute evidence. The administrative law judge may limit opening and closing arguments as the administrative law judge deems necessary.

(4)   Order of hearing.

(a) Except as provided under par. (b) or (c) or other applicable law, the party requesting a contested case hearing has the initial burden of going forward with proof at the hearing.

(b) If a party contests a division's legal authority to issue an existing order, the administrative law judge may require the division to go forward with proof that it had adequate legal authority to issue the order.

(c) Subject to the general order of proof under par. (a) , the administrative law judge may determine the order of proof in a contested case to promote an orderly presentation and consideration of the case.

(5)   Evidence. The receipt of testimony and other evidence in contested cases is subject to s. 227.45 , Stats. The administrative law judge shall admit evidence which has reasonable probative value, but shall exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which lacks reasonable probative value.

(6)   Witnesses.

(a) All witness testimony shall be given under oath or affirmation. The administrative law judge shall administer the oath or affirmation to each witness.

(b) At the discretion of the administrative law judge under sub. (1) (c) or (d) , a witness may testify by telephone or videoconferencing rather than in person.

(c) 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 harrassment of witnesses.

(d) Leading questions may not ordinarily be used in the direct examination of witnesses, but may be used in the cross-examination of witnesses. A party may use leading questions in the direct examination of either of the following:

1. An opposing party, or an employee or agent of an opposing party.

2. A witness who is hostile, unwilling, adverse or evasive, if the administrative law judge permits the examining party to use leading questions in the examination of that witness.

Cr. Register, May, 1992, No. 437 , eff. 6-1-92; am. (1) (a) (intro.), (b) and (c), (2), (3), (4) (b) and (c), (5), (6) (a) to (c) and (d) 2., Register, June, 1999, No. 522 , eff. 7-1-99; CR 09-054 : renum. (1) (b) and (c) to be (1) (c) and (b), cr. (1) (d), am. (4) (b), (c), (6) (b) Register December 2010 No. 660 , eff. 1-1-11.