Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance
Subject: Timothy J. Weiss (Hrg. No. 97003082BO) v. LIRC, The Bruce Company of
Wisconsin, Inc., and GTE North, Inc., c/o Gates McDonald Co., Case 98-CV-050 (Wis. Cir.
Ct., Columbia Co., December 8, 1998)
Digest Codes: PC 729
This case arose out of 3 Initial Determinations holding that for certain weeks the employe had worked and earned wages, failed to make a search for work, and concealed material facts relating to his eligibility, resulting in overpayment and forfeiture. The employe appealed, and he (with his attorney) was the only one to appear at the hearing. Following a hearing in which she questioned the employe and initiated the receipt of certain documents as exhibits, the Administrative Law Judge upheld the determinations. The commission affirmed, and the employe sought judicial review. The only issue raised by the employe was a claim that the hearing procedure violated the plaintiff-employe's due process rights because the Administrative Law Judge allegedly acted as a prosecutor.
Held: Affirmed. The court notes that employe disclaimed any assertion that the Administrative Law Judge was biased. Cases cited by the employe finding a violation of due process in the combining of prosecutorial and adjudicatory functions are distinguishable. In all of those case there was a responsibility of the participant to represent the interests of a party. Here, the Administrative Law Judge did not have the responsibility to represent the other parties. While the concern of the employe is not without some substance, in hearings of this kind the Administrative Law Judge is charged by rule with the responsibility of developing a record. That is of particular importance where, as here, the law provides for more than one level of review. While it would be best if all parties were represented, when one party is not represented or present the ends of justice require that the adjudicator have available the information necessary to make a reasoned determination. The court cannot conclude that the mere possibility of some abuse occurring as a result of active participation of the Administrative Law Judge in developing the record translates into a violation of due process.
Appealed to Court of Appeals. Affirmed in unpublished per curiam decision, September 30, 1999.
Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.
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