2017 Wisconsin Statutes & Annotations
Chapter 227. Administrative procedure and review.
227.45 Evidence and official notice.

Universal Citation: WI Stat § 227.45 (2017)

227.45 Evidence and official notice. In contested cases:

(1) Except as provided in s. 901.05, an agency or hearing examiner shall not be bound by common law or statutory rules of evidence. The agency or hearing examiner shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. The agency or hearing examiner shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

(2) All evidence, including records and documents in the possession of the agency or hearing examiner of which the agency or hearing examiner desires to avail himself or herself, shall be duly offered and made a part of the record in the case. Every party shall be afforded adequate opportunity to rebut or offer countervailing evidence.

(3) An agency or hearing examiner may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity of the official notice.

(4) An agency or hearing examiner shall take official notice of all rules which have been published in the Wisconsin administrative code or register.

(5) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

(6) A party may conduct cross-examinations reasonably required for a full and true disclosure of the facts.

(6m) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.

(7) In any class 2 proceeding, each party shall have the right, prior to the date set for hearing, to take and preserve evidence as provided in ch. 804. Upon motion by a party or by the person from whom discovery is sought in any class 2 proceeding, and for good cause shown, the hearing examiner may make any order in accordance with s. 804.01 which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In any class 1 or class 3 proceeding, an agency may by rule permit the taking and preservation of evidence, but in every such proceeding the taking and preservation of evidence shall be permitted with respect to a witness:

(a) Who is beyond reach of the subpoena of the agency or hearing examiner;

(b) Who is about to go out of the state, not intending to return in time for the hearing;

(c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or

(d) Who is a member of the legislature, if any committee of the same or the house of which the witness is a member is in session, provided the witness waives his or her privilege.

History: 1975 c. 94 s. 3; 1975 c. 414 ss. 9, 10, 12; Stats. 1975 s. 227.08; 1977 c. 277, 418, 447; 1979 c. 162, 208; 1985 a. 182 s. 33; Stats. 1985 s. 227.45; 1989 a. 139; 1991 a. 269; 2007 a. 1.

If there is evidence that a rule promulgated by an administrative agency is founded on a particular source, it is reasonable to resort to the source to interpret the rule, but it is the course of reliance on the source in the uniform administrative interpretation of the rule that gives the interpretation validity and not the source itself. Employers Mutual Liability Insurance Co. v. DILHR, 62 Wis. 2d 327, 214 N.W.2d 587 (1974).

Admission of evidence by an administrative agency is a matter of discretion. Stein v. WI Psychology Examining Board, 2003 WI App 147, 265 Wis. 2d 781, 668 N.W.2d 112, 02-2726.

This section requires very relaxed rules of evidence. A similar relaxation of the statutory rules of evidence is required as to documents. Sub. (5) does not require certified copies of medical records. Rutherford v. Labor & Industry Review Commission, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897, 06-3110.

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