CHARLES A. POHLEN, Complainant


ERD Case No. 8751496

An Administrative Law Judge (ALJ) issued a decision in this matter on February 22, 1990. Both parties filed timely petitions for Commission review.

Based on the record, and having considered the petitions for review, the Labor and Industry Review Commission hereby issues the following:


This matter is remanded to the Equal Rights Division for the taking of further testimony before an Administrative Law Judge, acting as a deputy for the Commission, from Al Czajczynski, Donald Huck, Dr. John Pulese, and any witnesses called by Respondent in rebuttal thereto.

Dated and mailed April 18, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The Administrative Law Judge excluded certain witnesses and exhibits offered by Complainant in this matter on the authority of Wisconsin Administrative Code chapter Ind 88.14(1), which provides:

"EXCHANGE OF NAMES OF WITNESSES AND COPIES OF EXHIBITS. By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing."

The Complainant mailed a list of the names of witnesses and copies of exhibits to both the Equal Rights Division and the Respondent on the tenth day preceding the hearing; they were received by both Respondent and the Division less than ten days prior to the hearing. The ALJ effectively held that (1) mailing the witness and exhibits disclosure to Respondent on the tenth day preceding the hearing was not adequate compliance with the rule since the disclosure was actually received by the Respondent less than ten days prior to the hearing; (2) the late filing with the Division was as fatal to the admissibility of the witnesses and exhibits as the "late" service on the Respondent; and (3) there is prejudice per se to the other party when a witness and exhibit disclosure is received late, such that exclusion is required. The ALJ also held, in response to a request by Complainant that he be allowed to present an additional witness (Ruck) not identified at all prior to the first day of hearing, that the fact that the hearing was going to continue on a number of subsequent days more than ten days following the request, was irrelevant.

The Commission has concluded that the ALJ erred in so holding.

Service of the Witness and Exhibit Disclosure on Respondent by Mailing on the Tenth Day Prior to Hearing -- The Division's rules do not define the term "serve upon" as it appears in Ind 88 . 14 (1) . The term is ambiguous in respect to whether it necessarily implies receipt. "Serve" is a term of art in law, and it can have a variety of meanings. "Service" can refer both to personal service, which denotes actual delivery and receipt, or to constructive service, which can include service by the act of mailing. Black's Law Dictionary (Revised 4th Ed., 1968).

The general rule is that where service by mail is authorized, in the absence of specific language to the contrary, service is completed upon timely mailing even though this is not specifically stated. Schroedel Corp v State Highway Commission, 38 Wis. 2d 424, 429 (1967). This rule is equally applicable in judicial and administrative contexts. Id. The question is therefore whether service of the witness and exhibit list required by Ind 88.14(1) is "authorized" to be made by mail.

The Division's rules neither expressly "authorize" nor expressly prohibit use of the mails to serve the witness and exhibit disclosure anticipated by Ind 88.14(1). However, a number of factors persuade the Commission that the use of mails to "serve" this disclosure is "authorized."

The term "serve upon" is used in many parts of the Division's rules, referring to the Division's transmittal of documents to one or both of the parties. Ind 88.03(1) (Service of preliminary jurisdictional determination), 88.03(2) (Service of administrator's decision on appeal from preliminary jurisdictional determination), 88.05 (Service of copy of complaint on respondent), 88.07 (Service of initial determination), 88.11 (Service of copy of respondent's answer on complainant), 88.18 (Service of ALJ 's decision). The commission takes notice of the fact, disclosed in the files of the Equal Rights Division which come before it, that in all cases these documents are "served" by the Division by way of mailing. Also, where the term "service" is intended to have a narrower meaning, as is the case where the service of subpoenas is concerned, the rules expressly provide that "service of subpoenas shall be made in the manner prescribed by law." Ind 88.13. Where a requirement of physical receipt of a document to constitute an acceptable transmittal to the Division is imposed, it is provided for by the use of the term "filing," which is in turn expressly defined as denoting physical receipt at a Division office. Ind 88.01(6).

Perhaps most significantly, implicit authorization of the use of the mails for service of witness and exhibit disclosure lists can be found in the "Information Sheet for Hearings Before the Equal Rights Division" which the Division routinely encloses with its Notices of Hearing, and which is in fact expressly referred to on the face of the Notice of Hearing. The first entry on the "Information Sheet" recites:

"BOTH PARTIES MUST SEND EACH OTHER A LIST OF THE WITNESSES THEY WILL CALL AT THE HEARING AND COPIES OF EXHIBITS THEY WILL OFFER AT THE HEARING, BY NO LATER THAN TEN (10) DAYS BEFORE THE HEARING, copies of this information should also be sent to the Division. If this information is not provided the witnesses and exhibits you want to present may be excluded at the hearing!" (emphasis in original)

By using the word "send," the Division effectively communicates authorization to use the mails.

Considering all these factors, the commission concludes that the use of the mails to transmit the witness and exhibit disclosure anticipated by Ind 88.14(1) is authorized. Because there is no specific language in the rules indicating otherwise, "service" of the witness and exhibit disclosure list by this authorized method is therefore complete upon mailing. The Administrative Law Judge should not have relied upon Respondent's receipt of Complainant's witness and exhibit disclosure list less than ten days prior to the hearing as grounds for exclusion of evidence offered by Complainant, when that disclosure was timely "served upon" Respondent by mailing at least ten days prior to the hearing.

Filing of the Witness and Exhibit Disclosure With the Equal Rights Division Less than Ten Days Prior to the Hearing -- It is not disputed that Complainant's witness and exhibit disclosure list was not "filed" with, i.e., physically received by, the Division at least ten days prior to the hearing. Therefore, under a literal reading of the rule, the ALJ was vested with the discretion to exclude the witnesses and exhibits of Complainant. However, the Commission has concluded that he erred in so doing. Given that the purpose of the rule is to avoid undue surprise at hearing, providing notice of intended witnesses and exhibits to the other party must be viewed as the most important requirement of the rule. Scott v. Sno-Bird Trailer Co. (LIRC, December 19, 1990). The requirement of filing with the Division serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. Id. It is difficult to conceive of any circumstance in which the late filing with the Division (as opposed to late disclosure to the other party) could possibly prejudice a party to the proceedings. A construction of the Division's rule which sanctioned the exclusion of relevant evidence simply because it had not been filed with the Division ten days prior to the hearing, without any finding that the opposing party was prejudiced thereby, would be unjustified. There having been no suggestion here that the Respondent was in any respect prejudiced by virtue of the late filing with the Division, the ALJ erred in relying upon this as a basis for the exclusion of evidence.

Prejudice Per Se Arising From Late Service and Filing -- The ALJ concluded that there is prejudice per se when service and filing under 88.14(1) are late. This construction of the rule is justified neither by the language of the rule itself nor by the Commission's previous decisions in this area. As originally adopted, the rule provided that a party's failure to timely exchange the names of its witnesses "shall result" in the exclusion of the witnesses' testimony. Subsequently, the rule was amended, effective July 1, 1986, to provide that the ALJ "may exclude" a party's evidence if the ten-day exchange requirement was not met. Hansen v. Airborne Freight Corp. (LIRC, May 21, 1987). The obvious purpose of this amendment was to vest the ALJ with discretion to allow evidence notwithstanding non-compliance with the disclosure rule. A construction of the rule, to the effect that there is prejudice per se when disclosure is not made timely, ignores this history and negates the existence of the discretion which is now expressly indicated by the very language of the rule. The absence of prejudice from a late disclosure could justify allowing the evidence even under the pre-amended version of the rule, Dominguez and Ferrer v. Lawrence d/b/a Sawdust Factory (LIRC, April 16, 1987). It can certainly justify the same result under the present language of the rule.

The ALJ made no determination that the Respondent was prejudiced by its receipt of the Complainant's witness and exhibit disclosure on the ninth day prior to the hearing. Indeed, he appears to have affirmatively precluded Complainant from exploring that question. Respondent, for its part, offered no persuasive explanation of how its receipt of the witness and disclosure list on the ninth day prior to hearing prejudiced it. Although Respondent argued that there was prejudice implicit in the fact that Complainant was able to review Respondent's witness and exhibit list before submitting his own, the Commission finds this to reflect a misapprehension of the purpose of the rule. The rule contains an express exception for matters offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing. If a party becomes aware, by virtue of seeing who the opposing party plans to call as witness or what the opposing party plans to offer as an exhibit, of the desirability of offering some evidence which that party could not have reasonably anticipated using, the rebuttal exception would allow the offering of that evidence. Additionally, the Commission would note that the Respondent was not in a position to ask an equitable tribunal for relief from surprise. Respondent did not dispute the indications of counsel for the Complainant that, on a number of occasions after he served his witness and exhibit disclosure list and prior to hearing, he communicated over the telephone with counsel for the Respondent in an effort to obtain permission from counsel for the Respondent to substitute another physician for Dr. Pulese, and that, while counsel for Respondent indicated that he would not agree to such a substitution, he at no time indicated to counsel for the Complainant that he in fact planned to object to the offering of even the testimony of Dr. Pulese (and the other witnesses) on the grounds of a claimed "late" exchange. The explanation of counsel for Respondent, that he felt he was not obliged to thus disclose his "legal analysis" prior to hearing, may be true as a legal matter, but is wholly inconsistent with the equitable consideration evidenced by Ind 88.14(1), which is the avoidance of trial by surprise. Surprise is not favored in law as a trial technique, because it can result in inadequate presentation which limits development of the record. A party seeking relief from surprise should not be planning a surprise of its own.

The Commission therefore concludes, contrary to the holding of the Administrative Law Judge, that any application of the discretionary authority provided in 88.14(1) to exclude evidence should have considered the question of whether any prejudice would have resulted to Respondent and should have concluded that there would have been none in this case.

Exclusion of Undisclosed Witnesses on Continued Hearing Days -- It is not disputed that Donald Huck was not identified by Complainant as a potential witness at any time prior to the day of hearing. However, it was apparent to all concerned that the hearing was going to take a number of days to complete. In fact, after the first day of hearing on February 23, 1989, continued hearing was held on March 6, 7 and 10, and August 10, 1989. Complainant did not rest his case until midway through the proceedings on March 10, 1989. On the first day of hearing, Complainant argued that in the event the hearing was not completed on that day and was continued on a subsequent day more than ten days in the future, it would not be inconsistent with Ind 88.14(1) to allow him to call Donald Huck as a witness, given that he was then identifying him as a potential witness. The ALJ disagreed, holding that Ind 88.14(1) requires disclosure of all witnesses and exhibits to be used in a hearing at least ten days prior to the first day of the hearing, no matter how many days of hearing are held and no matter how much time elapses between the first day of hearing and subsequent days of hearing. The rationale relied upon by the ALJ was described by him as an "administrative" one: "the potential otherwise for complainants (sic) to use the possibility of a continuation of the hearing to get around the intention of the statute." (T. 8) The Commission believes that this holding was in error. First, the intention of the statute is, of course, not to punish parties for failure to comply with procedural rules, but simply to prevent prejudice to opposing parties arising out of surprise at evidence being presented that they were not prepared to address. As the Commission emphasized in Hansen, the matter of avoidance of surprise is the paramount purpose of and consideration in the interpretation of the rule. Second, the ALJ's concern that complainants could use the possibility of continuation of a hearing to get around the intention of the Statutes is unwarranted. ALJs have broad authority to control the course of hearing. They can prevent the introduction of unnecessary or irrelevant evidence, interposed merely in order to delay the hearing and force it to another day. They can also control matters of rescheduling.

Where, as here, a party has clearly identified on the record at hearing its desire to call a particular person as a witness, all parties reasonably anticipate that the hearing will continue on a subsequent day or days before the party proposing the witness rests its case, and the hearing is in fact continued on a subsequent day or days more than ten days later and the party proposing the witness has not rested that party's case, Ind 88.14(1) should not be invoked to preclude presentation of that evidence. It is difficult if not impossible to conceive in such a case of how the opposing party could legitimately claim prejudice in that situation. Such a party will have had the ten days' opportunity to prepare to rebut the disclosed evidence, just as in the case of an initial disclosure.

Conclusion -- For the reasons given above, the Commission concludes that the ALJ erred in excluding the testimony of the three witnesses in question (as well as Complainant's Exhibit 3, which was excluded solely on grounds of untimely disclosure prior to hearing). Given the state of the record and the nature of the issues presented in this case, the Commission considers it necessary to consider this excluded evidence prior to its decision on the merits. Because the ALJ denied the Complainant's request to present the actual testimony of the witnesses as an offer of proof, and permitted only summaries of what they would testify to, a remand is necessary. As noted in the order, further decision by the ALJ is not contemplated; the evidence is to be taken on rehearing and the record made is then to be submitted to the Commission. Also as noted, the Respondent should be entitled to present any evidence which can legitimately be considered in rebuttal to the evidence allowed by Complanant on remand, since Respondent would have been allowed to present any such rebuttal had the evidence been initially admitted at hearing.


Arthur Heitzer
Robert H. Duffy

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/09/14