763 Other procedures at hearing

The administrative law judge’s refusal to allow a witness to testify by telephone falls into the category of rulings concerning the conduct of hearings that are within the administrative law judge’s discretion to make. The administrative law judge did not abuse her discretion in deciding not to allow telephone testimony. The administrative law judge properly considered the fact that the party wanting to call the witness had reason to know in advance of the hearing that she would like to have the witness testify, and that there were ways to attempt to obtain his live attendance prior to hearing, which the party’s attorney did not try, most importantly the process of subpoenaing him. The administrative law judge also properly considered the fact that the witness’s credibility would need to be closely examined, given that he was expected to directly contradict the testimony of another witness concerning a conversation in which they both participated. The administrative law judge reached a reasonable conclusion that a fair comparison of the credibility of the witnesses would best be obtained by observing the demeanor of both of them while testifying. Billings v. Right Step, Inc. (LIRC, 06/10/20).

The Administrative Law Judge did not err in deciding to hold a hearing on the question of whether the Complainant required an interpreter at the same time as the substantive hearing. McCarthy v. Dunargin Wis., LLC (LIRC, 02/28/14).

After resting her case at the end of the first day of hearing, the Complainant asked to supplement her case on the second day with additional exhibits and testimony of two additional witnesses. The ALJ properly ruled that the Complainant had missed her opportunity to present this evidence and testimony in any way other than by rebuttal to the Respondent’s case. The ALJ properly indicated that she would decide at the conclusion of the Respondent’s case whether the proposed testimony and documentary evidence would be allowable as rebuttal. Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11/29/13).

It was not error for an Administrative Law Judge to require the Complainant to provide a synopsis of the expected testimony of each witness he intended to subpoena in order to assist the Administrative Law Judge in determining whether the proposed witnesses’ testimony would be relevant, and whether subpoenas should be provided to the Complainant. The Complainant’s original request was for 35 subpoenas. The information provided by the Complainant consisted of a two or three-word description of what each witness would testify to and was inadequate to assist the Administrative Law Judge in determining whether to issue the requested subpoenas. The Administrative Law Judge therefore reasonably declined to issue the subpoenas. (At the hearing, the Administrative Law Judge advised the Complainant that he could request a continuance if there was a witness whose testimony was crucial to the presentation of his case, but the Complainant did not do so). Denis v. Wal-Mart Stores (LIRC, 05/26/11).

It was not an abuse of discretion for the Administrative Law Judge to allow a witness to testify by telephone. Counsel for the Respondent had apprised the Administrative Law Judge that the witness had not worked for the Respondent for more than a year, and that she lived in another state and was beyond the subpoena power of the state of Wisconsin. Johnson v. Kelly Services (LIRC, 04/21/09), aff’d sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

An Administrative Law Judge properly denied the Complainant’s request that various individuals be subpoenaed to testify at the hearing. The Complainant did not dispute the Respondent’s assertion that the individuals did not have personal knowledge regarding the actions underlying the complaints, nor were they directly involved in investigating complaints that had been made against the Complainant, or imposing the reprimands that resulted from those complaints. Kaye v. City of Milwaukee (LIRC, 09/30/08).

A subpoena issued by a party who is not an attorney is invalid. Sec. 227.45(6m), Stats., provides that a party’s attorney of record may issue a subpoena to compel the attendance of a witness. The Equal Rights Division’s administrative rules provide that either the Department or a party’s attorney of record may issue a subpoena to compel the attendance of a witness. The Complainant in this case argued that he was acting as his own attorney. However, this argument was unpersuasive. The Complainant was acting as his own representative, but that did not make him a member of the bar and, thus, an “attorney” within the meaning of the statute or the administrative rules. Betters v. Kimberly Area Sch. (LIRC, 11/28/07).

Neither an Administrative Law Judge nor the Labor and Industry Review Commission have the authority to enforce a subpoena. Sec. 885.11, Stats.; Sec. 218.15, Wis. Adm. Code. The Complainant could have initiated a judicial action to enforce a subpoena where the potential witness failed to appear at the hearing. In order to justify conducting a continued hearing for the purpose of taking the witness’s testimony, the Complainant would have had to demonstrate that the content of the witness’s testimony would be sufficiently strong to reverse or modify the decision of the Administrative Law Judge. Josellis v. Pace Indus. (LIRC, 08/31/04).

Administrative Law Judges have the authority to decline to enforce a subpoena if there is a reasonable excuse or reasonable cause for non-compliance with the subpoena. A witness must be considered to have a reasonable excuse and reasonable cause for not complying with a subpoena which is unreasonable and oppressive. When a subpoena is served on the evening before the hearing and only actually received the morning of the hearing, it is reasonable to consider it to have been unreasonable and oppressive and to consider the late service to be a reasonable excuse and reasonable cause for non-compliance with the subpoena. Greco v. Snap-On Tools (LIRC, 05/27/04).

While witnesses may be excluded from the hearing room so that they cannot hear the testimony of other witnesses, this does not extend to a party who is a natural person, or to an officer or employee of a party which is not a natural person who has been designated as its representative. Harris v. M & I Bank (LIRC, 09/11/03).

Sec. ILHR 218.15(1), Wis. Adm. Code, restricts the power for issuing subpoenas to the Department or to a party’s attorney of record. A pro se litigant is not an attorney of record. Individual litigants appearing pro se desiring to compel the attendance of witnesses must avail themselves of the assistance of the Department. Oriedo v. LIRC (Dane Co. Cir. Ct., 05/20/99).

It is questionable whether pre-payment of witness fees and travel expenses is required when subpoenas for attendance at Equal Rights Division hearings are served. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).

Only a member of the Bar, or the Department itself, may issue a subpoena requiring attendance at a hearing before the Equal Rights Division. Subpoenas issued by a non-attorney were properly quashed. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).

The purpose of a sequestration order is to assure a fair trial and, more specifically, to prevent the shaping of testimony by one witness to match that given by other witnesses. While the Administrative Law Judge could have disqualified all of the sequestered witnesses that the Respondent called, based upon its violation of the sequestration order, it was not error to deny the Complainant's request to disqualify the witnesses if no prejudice resulted from the violation. Sobkowiak v. Trane Corp. (LIRC, 09/06/91).

There is no absolute right to a sequestration order. Jackson v. City of Milwaukee Pub. Library (LIRC, 12/14/90).

A court reporter was adequately appointed by the Department as required by sec. 111.39(4)(b), Stats., where: (1) the Division sent the parties a notice indicating that any party wishing to engage a court reporter at the hearing would be allowed to do so, (2) the Administrative Law Judge stated on the record that a court reporter was recording the proceedings, and (3) the court reporter did in fact take down the entire proceedings. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).