Wis.LIRC ER Decision: Reinke, Josephine - September 2, 1999 - Procedure - Exhibits, adequacy of record regarding - - ALJs must mark exhibits, have exhibits referred to by number, note all actions as to exhibits on the record

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOSEPHINE REINKE, Complainant

PICK'N SAVE MEGA FOOD CENTERS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703205, EEOC Case No. 26G971828

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

Based on a careful inspection of all of the materials forwarded to the commission by the Equal Rights Division, including the tapes of the hearing, the commission has concluded that the record is not adequate to allow the commission to conduct a proper review of the decision of the Administrative Law Judge. For that reason, the commission makes the following:

ORDER

The September 4, 1998 decision of the Administrative Law Judge is set aside.

This matter is remanded to the Equal Rights Division for further proceedings as more particularly described in the Memorandum Opinion attached hereto.

Dated and mailed September 2, 1999
reinkjo.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

When a petition for commission review is filed from a decision of an administrative law judge of the Equal Rights Division (ERD), the commission has the statutory responsibility to make a decision in the case "based on a review of the evidence submitted". Wis. Stat. � 111.39(5)(b). The commission cannot carry out that statutory responsibility unless it can determine what evidence has been submitted. It cannot do so here, and for that reason it must remand this matter.

Problems with the record -- The ERD provided the commission with a file in this case which included a large number of loose photocopied pages. Some of them bore numbers, but only one of them bore any indication that it was an "exhibit". (1 )

The commission is aware from its review of numerous decisions of administrative law judges of the ERD, that it maintains a Form, ERD-6076, "Equal Rights Hearing Log", which is intended for and is (sometimes) used by administrative law judges during hearings to record data relating to the hearing. That form includes an "Exhibit List" format with spaces for entry of descriptions of exhibits as well as indications of whether the exhibit had been offered and whether it had been received. There was no "Equal Rights Hearing Log" in the file in this case.

The ERD provided the commission with a Summary of Proceedings, prepared from the hearing tapes by a Legal Assistant at the ERD, which contained what was described as a "List Of Exhibits Presented At The Hearing In This Matter". However, this list was annotated with the comment, "Documents were referred to, but none seem to have been received as exhibits." (emphasis added). Furthermore, some documents in the "list" had no corresponding numbered document in the file, while there were also documents which were in the file but were not reflected on the list. (2 ) Of the 42 documents described on the "list" as "exhibits", only 11 were actually mentioned at any point in the Summary of Proceedings. (3 )

The audio tapes of the hearing were reviewed in toto to see if they could clarify the status of the documents in the file. This review disclosed that there were frequent references to numerous documents during the hearing, but that in many cases it was not possible to determine what documents were being referred to, because both the Administrative Law Judge and the parties were not referring to them by number, but by such general references as "this one" or "that one".

The review of the hearing tapes also disclosed that the Administrative Law Judge never stated, at any point during the hearing, that he was marking any documents for identification; that he never inquired of either party, whether they wished to have any documents received into the record as exhibits; and - most significantly -- that he never stated, that any documents were received into the record as exhibits.

In short, the case as it has been submitted to the commission is in complete disarray with respect to the documentary record. Under these circumstances the commission cannot properly carry out its responsibility to make a decision "based on a review of the evidence submitted".

Remand -- The commission has ordered that the decision of the Administrative Law Judge be set aside because it has concluded that, however the problems in this case are addressed on remand, the simplest and most straightforward procedural approach is for the ERD to take whatever steps it concludes are necessary, and to then issue a new decision.

However, the commission will not direct any specific steps to be taken to correct the situation, because it believes that the Administrative Law Judge may be in a better position to know what may be done to clarify the state of the record.

For example, if there were discussions off the record in which understandings were reached or rulings were made concerning exhibits, it may be possible for the Administrative Law Judge to simply reissue his decision, with the addition of a Memorandum Opinion or Note clarifying the status of the papers in the file and indicating specifically what documents, if any, are to be considered part of the record.

Alternatively, if the ambiguities as to what exhibits are in the record and what those exhibits are cannot be resolved, the Administrative Law Judge may determine that it is necessary to either continue the hearing for the purpose of resolving those ambiguities, or to conduct a new hearing.

Whatever steps are chosen to address the problems with this case, however, they should be adequate to meet the commission's expectations as to the state of the record in a case it is asked to review in which documents were used and referred to at the hearing. The commission considers that the following things are necessary for it to able to carry out its statutory responsibility to review decisions of administrative law judges "based on a review of the evidence submitted":

1) If documents are used in the course of examination of witnesses and are referred to or discussed in the examination of the witness, they should be marked for identification. They should be physically marked either by the administrative law judge, or the court reporter if one is present. The marking should include the number or letter with which the document is being designated, and some kind of indication - at a minimum, something like "Exhibit" or "Ex." - that the document is a potential hearing exhibit. If documents are used and referred to at the hearing, even if there is no request by a party to have them marked for identification, the administrative law judge should do so as soon as possible, on his or her own motion, in the interest of the clarity of the record.

2) Once documents have been marked for identification, they should thereafter be referred to by their identifying designation (whether or not other identifying detail is also added). If parties refer to marked documents without using their identifying designation, and the context is not adequate to allow a third party who may later be reading the record to determine what is referred to, the administrative law judge should not hesitate to intervene on his own motion to ask to have the record clarified as to what document is being talked about.

3) All actions taken with respect to documents - particularly marking them for identification, and receiving (or not receiving) them as exhibits -- should be taken on the record. If actions are taken off the record, they should be confirmed on the record as soon as the hearing resumes. Actions taken with respect to exhibits should be stated clearly, and with express reference to the identifying designation of the document, so that it will be clear to a third party (such as an ERD Legal Assistant who is preparing a Summary of Proceedings, or to the commission) what action is being taken.

The commission also strongly recommends, that administrative law judges use the Form ERD-6076, "EQUAL RIGHTS HEARING LOG", to provide independent confirmation of all actions taken with respect to exhibits, and that they summarize all actions taken with respect to exhibits on the record at the close of the hearing.

cc: Robert J. Glisch, Vice-President, Respondent

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Footnotes:

(1)( Back ) One document in the file, a photocopied "Work Status Record" which bore (among other marks) a handwritten "#4", had the word "Exhibits", and the initials of the Administrative Law Judge, written on it in red ink. However, no other document contained any similar marking.

(2)( Back ) Specifically, the commission cannot locate a document numbered "3" or a document numbered "9". The file contains a document bearing "3A"; one bearing both "4A" and "#11"; a document bearing "#4" which is different from another document bearing "4"; a document bearing "5" which is different from another document bearing "#5"; one bearing only "7 of" followed by two illegible scribbles; a document bearing "1A"; and a document bearing "2".

(3)( Back ) The commission's review of the actual hearing tapes confirms that these were the only documents referred to by number at any time during the hearing.