Information About The Administrative Hearing Process
This information has been provided to help you understand the process. It is not intended to substitute for the legal advice and assistance of an attorney.
The administrative hearing process is similar to being in court for a trial. However, an administrative hearing involves disputes under the authority of governmental agencies. An administrative hearing establishes a record of facts in a particular case, toward some type of resolution. In the hearing, you are allowed to tell your side of the story in the dispute.
Chapter 227 of the Wisconsin Statutes is the general law which governs administrative hearings. However, your case may be governed by another specific law with different requirements. An agency may also have special administrative rules which are, in effect, "additional laws" governing cases in that agency.
A "party" in a case refers to a person or entity entitled to be heard in the case, who either asks or is requested to participate. You are a party if either:
- a complaint is filed against you, or
- you appeal an agency decision and your request for hearing is granted.
ADMINISTRATIVE LAW JUDGE
The person who conducts the hearing is usually called the administrative law judge (ALJ). He or she might instead be called a hearing examiner (examiner). Depending on the laws governing the hearing, the ALJ may or may not be the final decision-maker.
The ALJ is prohibited from speaking with the prosecutor about your case in your absence. The ALJ must be impartial, and may not be someone who has had prior personal involvement with your case.
YOUR RIGHT TO BE REPRESENTED
You may be represented prior to and at the hearing by an attorney, but you are not required to have one. You must make this decision. If you decide to be represented, you must choose your own attorney. Neither the agency, the opposing party's attorney, nor the ALJ is allowed to recommend an attorney.
In most cases, you will have to pay for the attorney yourself. However, sometimes, particularly where a public benefits is involved, a free or reduced-fee attorney may be available to represent you.
Never wait until the last minute before deciding if you want an attorney to represent you. Many attorneys will not take a legal matter at the last minute and the ALJ is unlikely to give an attorney additional time to prepare. Nor is the ALJ likely to postpone your hearing to give you additional time to search for an attorney if you make a last minute decision. Make your decision very early on and if you decide you want an attorney to represent you, begin looking for one immediately.
TALKING TO THE ALJ
You are allowed to contact the ALJ with questions you have about how the hearing will be conducted and the rules you must follow. However, because the ALJ must listen impartially to the evidence, the ALJ can only consider facts and arguments presented when all parties are present. The ALJ cannot speak with another party about your case in your absence and you cannot discuss the specific facts about your case with the ALJ unless the other party is present. If you write to the ALJ you must also, at the same time, send a photocopy of your correspondence to the persons representing the other parties or directly to any party who is not represented.
AGENCY DECISIONS SUBJECT TO APPEAL
An administrative hearing may begin with some type of decision by an agency which may be appealed to an ALJ. In such a case, your appeal letter begins the process.
Some ALJs will conduct at least one prehearing conference, often by telephone. You are required to appear at the conference. If you know you cannot appear, you must contact the ALJ promptly to ask for a change.
The purposes of a prehearing conference are to:
- clarify any misunderstandings;
- agree on as many of the undisputed facts as possible;
- to identify the real disagreements to be addressed;
- to set a timetable to prepare for and schedule the hearing.
If you and the opposing parties have not already discussed the possibility of settling the case without a hearing, you may be encouraged to do that.
Many cases are settled by agreement without a hearing. All Wisconsin agencies encourage parties to settle their disagreements, if possible. You are free to respond to or to contact the other party or that person's attorney to discuss the possibility of settlement. If you are reaching an agreement as the hearing approaches and need some more time, you should ask the ALJ to postpone the hearing so you can work on settling the case.
Settlement discussions are usually not disclosed to the ALJ. If the case goes to hearing, settlement discussions cannot be mentioned at the hearing.
If you settle the matter, you should sign an agreement (called a "stipulation" or "settlement agreement") setting forth the terms of settlement. An order, which is a command to the parties, may then be issued by the ALJ accepting and implementing the stipulation.
"DISCOVERY" AND DOCUMENTARY EVIDENCE
You may want to use documents or other evidence to support your position. You should also understand that, prior to the hearing, each party has a right to know the other party's evidence. The process to find out about the other party's case is called "discovery."
WITNESSES AND SUBPOENAS
You may want to have one or more witnesses testify in your favor. If so, you are responsible for having them appear. You may arrange for witnesses to appear voluntarily at the hearing. If a person will not agree, you may use a subpoena to order him or her to appear. You must arrange to have the subpoena served on the witness. You can do this yourself as long as you prepare an affidavit of service, or you can have it done by the sheriff's office or a private process-server. Along with a subpoena, you must include payment to the witness of a daily fee and mileage for appearing. It is also a good idea to attach a map or directions to the hearing location. Because each party has a right to know what evidence will be presented by the other part, the ALJ usually orders each party to provide a list of their witnesses and to send copies of any documents the party may use in a hearing to the other party. The ALJ may make this order in a prehearing conference or issue a written order.
RESCHEDULING, CONTINUING, ADJOURNING
Prior to the hearing, if a good reason is shown by either party, the ALJ can reschedule the hearing. Once a hearing has started, the ALJ may continue it if more time is necessary. If your case settles, the ALJ will usually adjourn the hearing, not canceling it entirely but taking it off the calendar until the settlement is approved by the final decision-maker.
Appearing at the Hearing
If your case is not settled or rescheduled you must appear on the date specified in the notice of hearing. If you do not appear, one of two things will occur. If you appealed an agency's action, the ALJ will interpret your absence as an indication that you no longer wish to pursue the matter and the hearing will be dismissed. If the other party requested the hearing, you will be in "default" and the ALJ will interpret your absence to be an admission by you that all of the allegations contained in the complaint are true. In that event, the ALJ will enter an order in favor of the other party.
How a Hearing Is Conducted
When you appear, the hearing will be conducted similar to a trial but without a jury. The ALJ will oversee the hearing, ruling on procedure, the evidence which may be presented, and objections.
Each party may make an opening statement. If you choose to make one, you should briefly summarize your side of the story for the ALJ.
Each party may then present evidence. Usually the party who files the complaint or requests the appeal presents his or her evidence first. That party presents all of his or her witnesses and other evidence and then the other party may do the same. Each witness can be questioned by both parties: first the party who called the witness (direct examination), then the other party (cross examination). Each party then gets a second opportunity to ask follow-up questions (re-direct and re-cross examination).
The evidence may be in documents or oral testimony from witnesses. Witnesses will be sworn to tell the truth. You may testify yourself and you may be called as a witness by another party. You may refuse to answer questions only if your testimony might subject you to criminal prosecution.
Generally, witnesses can testify only about matters of which they have personal knowledge. Although the ALJ might allow you to testify about what someone else told you, your case will be stronger if you call that person as a witness. If you anticipate any problem, such as whether a certain document will be admitted or certain testimony allowed, you or your attorney should contact the ALJ so that the issue can be discussed in a prehearing conference.
After all the evidence has been presented, each side may make a closing statement. You may summarize or comment on the evidence that has been presented. You may also argue how the case should be decided.
Each hearing is recorded on audiotape, on videotape, or by a court reporter. You may purchase a copy of the tape or a written copy of the tape (called a "transcript"), if a transcript is made.
Written Statements After the Hearing
Following the hearing, you may be allowed to write a document (called a "brief") which sets forth the facts and laws you believe are relevant. You may also argue for a particular outcome and against the other party's position. The ALJ will discuss with the parties whether they wish to submit briefs and the timetable for submitting them.
PROVING THE CASE
If a complaint has been filed against you, you do not have to "prove your case." The other party has the burden of proving the allegations are true. However, if you request a hearing, you may have the burden of proof. This means that, for each disagreement, you must have the majority of evidence in your favor in order to "win" that disagreement.
Who the final decision-maker is in your case depends on the law governing your hearing. In some cases, the ALJ is the final decision-maker. In others, the head of the agency or a governing board may make the final decision.
Once the hearing is completed, the ALJ is responsible for preparing a Proposed or a Final Decision which sets out all the facts of the case, recites the law that governs the case, and applies the law to the facts. The most important questions to be answered are who has won on each disagreement and what the final outcome should be. Any proposed or final decision must be in writing.
When the ALJ issues a proposed decision, it will be sent to you and the other party. You will be notified of a time in which to file written objections which will be considered by the final decision-maker. The final decision can be changed from the proposed decision, based upon the decision-maker's independent review of the evidence and the parties' objections.
A final decision will be sent to all parties. It will be accompanied by a notice of appeal rights. An appeal may be made by any party who disagrees with any outcome in the decision. The notice will explain how to make an appeal.