PAUL SACCOMANDI, Complainant

E. POCUS AND COMPANY, Respondent A

DOROTHY J. NELSON, Respondent B

EDWARD C. POCUS, Respondent C

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 10, 1992. Complainant filed a timely petition for review by the commission, and both parties submitted written arguments in support of their positions.

Based upon a review of the record in its entirety, and for the reasons set forth in the Memorandum Opinion attached hereto, the Labor and Industry Review Commission hereby issues the following:

The April 10, 1992 decision of the administrative law judge in this matter is set aside, and this matter is remanded to the Equal Rights Division for rehearing.

It is further ordered that counsel for complainant may not withdraw from representation of complainant without permission of the tribunal before which the matter is pending.

Dated and mailed September 9, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The commission has set aside the administrative law judge's decision and remands this matter for rehearing because of a number of errors below.

Partial loss of record -- Part of the hearing was either not tape recorded, or the taped record of that part of the hearing was either destroyed or lost. The very beginning of the hearing, at which there was presumably some discussion of the procedural posture of the case, is missing. The complainant has asserted that he was forced to proceed to hearing without an attorney. This assertion suggests that, at the commencement of the hearing, there may well have been discussion about whether the hearing should be postponed. Because there is no record of the preliminary procedural discussions, the commission is prevented from fully or effectively evaluating the objections of the complainant that he was forced to proceed to hearing without an attorney. Additionally, all of the direct examination and part of the crossexamination of one of the witnesses (Thomas Holbus) was also not preserved. In that part of his testimony which was recorded, Holbus testified to having heard one of the respondents make statements derogatory to complainant's nationality. It is reasonable to infer that he may have testified to this during his direct examination. However, because there is no record of most of the witness's testimony, the commission is prevented from fully or effectively evaluating this claim. In previous cases in which the ALJ has failed to record part of the hearing, the commission has remanded for rehearing. Krenz v. Lauer's Food Market (LIRC, September 27, 1990).

Inadequate record as to exhibits -- The transcript log shows that something described as a "trial transcript" was marked as Exhibit 6 but was not received. The file which the Equal Rights Division sent to the commission does contain a transcript of a May 22, 1989 trial of complainant on a disorderly conduct charge arising out of an alleged assault on defendant Nelson in January 1989, and that "trial transcript" bears the handwritten notation "#6." However, there is reason to question the status of this document: For one thing, the "#6" on the trial transcript in the file which the ERD provided is in black ink, while the exhibit markings on all of the other exhibits are in red ink. This suggests that it was written at a different time. This suggestion in turn finds supports in the indication in the transcript, at pages 132-33, that what was marked as Exhibit 6 at the hearing was not a "trial transcript," but rather an affidavit, of someone named Horner. Respondent's brief to the ALJ also refers to an affidavit of Horner as being Exhibit 6. This Exhibit 6 was formally moved into evidence, but the ALJ never ruled on this motion, and there is no affidavit in the file which the commission has been provided. There are references to a "trial transcript" in the hearing transcript, but it was, according to those references, actually marked as Exhibit 8 (T 147). This is, it should be noted, the same exhibit number as was later assigned to another exhibit, a photograph (T 215).

The "trial transcript" marked as Exhibit 8 during the hearing was formally moved into evidence (T 149), but there is no ruling by the ALJ on this motion. However, there is an apparent reference to this Exhibit 8 later in the transcript, in which respondent objects to complainant's questioning Nelson about the alleged assault and asserts as grounds for its objection only that "the transcript is already in." (T 244) Following this, the ALJ's only response is to sustain the objection.

In order to conclude that the trial transcript which it finds in the file is the same "trial transcript" which was apparently marked as Exhibit 8 at the hearing, the commission would be required to engage in supposition and inference not simply about the facts of the case, but about the very state of the record. This it declines to do. The whole point of marking exhibits for identification at hearing, and referring to them thereafter by their designated exhibit numbers, is to allow a subsequent reviewer who was not at the hearing to correlate a document that is found in the file bearing a particular number, with a document that is referred to by that number in a transcript. The idea that the subsequent reviewer should have to go through some kind of deductive process to determine if a document found in the file is actually the same document that a witness is referring to in the transcript, is unacceptable. Whether or not the commission may suspect that the trial transcript bearing the marking "#6" which is in the file is the same document as the "trial transcript" which the parties were referring to at hearing and which they had marked as Exhibit 8, it will not review this case, or any case, on such a basis. If the commission cannot determine in the conventional way, i.e., by correlation of exhibit numbers, that documents referred to in a transcript are the same documents it finds in a file which has been forwarded to it in the case, it will not view the record as complete. By this standard, the record in this case is incomplete. The whereabouts of the "trial transcript" referred to in the transcript is uncertain, and the provenance of the trial transcript which the commission finds in the file is equally uncertain. This incompleteness in the record is significant, because as will be discussed below, the "trial transcript" may have been material both to an erroneous finding of fact by the administrative law judge and to an erroneous ruling made at hearing by the administrative law judge limiting complainant's cross-examination of respondent.

Erroneous finding of conviction -- This case involves an allegation of discriminatory eviction. The nondiscriminatory reasons respondents give for the eviction include a claim that complainant physically assaulted apartment manager Nelson in January 1989. Complainant denies that he assaulted her. At hearing, respondent asserted that complainant had been convicted of disorderly conduct in connection with this alleged assault. Complainant repeatedly denied that he had been convicted, and asserted that the conviction had been overturned, that he received a new trial, and the charge was eventually dismissed. In its arguments to the ALJ, respondent placed great emphasis, not only on assertions that complainant had been convicted, but also on the argument that his denial of this warranted disbelieving his testimony in general. The question of whether complainant assaulted Nelson was obviously material, bearing as it did on the bona fides of respondents' asserted nondiscriminatory reason for its action. The ALJ made the finding of fact that complainant had been convicted of assaulting Nelson.

Respondent now concedes, in a letter to the commission filed after its brief, that the May 1989 conviction of complainant was vacated in October 1989, that a subsequent retrial ended with mistrial, and that prior to any further retrial, the charge was thereafter dismissed. Thus, in legal contemplation there was no conviction. The ALJ 's finding that there was one, is therefore clearly erroneous.

ALJ's limitation of cross-examination -- As noted, the claim by respondent that complainant physically assaulted Nelson in January 1989 was central to its asserted nondiscriminatory explanation for its challenged conduct. However, when complainant first attempted to cross-examine Nelson on the subject of the assault, respondent objected on the grounds that "the transcript is already in," and the ALJ sustained the objection. (T 244) Complainant, not represented by counsel, evidently concluded (not without reason) that examination into this area was being ruled out, and he made no further attempts at it. The ALJ thus, in effect, prevented complainant from cross-examining the respondent on the respondent's asserted nondiscriminatory reason for its challenged action. His only explanation for his ruling, appears to have been that the transcript of the disorderly conduct trial had been received into evidence. The commission is not aware of any rule of evidence to the effect that a party may be denied the opportunity to crossexamine another party on a critical factual issue, simply because the other party has offered a 'transcript of testimony by the parties about the incident in a prior proceeding. The only way the commission can make sense of the ALJ's ruling is to suppose that it was his view, that complainant was precluded from conducting any cross-examination in an effort to show that he was not guilty of the assault, and that he was precluded from otherwise disputing the evidence given in the criminal trial, because there had been a conviction. Entirely apart from the question of whether such a view would have been correct even if there had been a conviction, the fact that there was in legal contemplation no conviction makes the ALJ's ruling insupportable. The complainant was denied the opportunity to cross-examine respondent as to the truth of the respondent's asserted nondiscriminatory reason, simply because the respondent had offered a transcript of testimony from another proceeding that did not even result in any legally cognizable outcome. This was plain error.

Conclusion -- Section 111.39(5)(b), Stats. allows the commission to "set aside the findings and order and remand to the department for further proceedings." It elects to do so here. The administrative law judge's errors in creation and preservation of the record are such that the case cannot be reliably reviewed. Furthermore, the ALJ's conclusion that complainant was convicted in connection with the incident alleged as the principal nondiscriminatory reason for his eviction, is now known to have been wrong. This is significant because it was apparently this belief on the part of the ALJ that led him to make a ruling that in effect prevented complainant from cross-examining respondent's main witness about that incident. This case must therefore be heard de novo, with such hearing to involve: (1) preservation by tape recording of all material proceedings and testimony; (2) marking of all exhibits referred to, unambiguous rulings on all motions for receipt of exhibits, and preservation of all exhibits in the file to be transmitted to reviewing authorities; and (3) opportunity for appropriate cross- examination on all material issues.

NOTE: In her brief to the commission, counsel for the complainant made an argument which assumed some type of authority on behalf of the agency to control withdrawal of counsel from representation. Having made an argument assuming the existence of such authority, complainant's counsel will not now be heard to argue that such authority does not exist. Thus, it is assumed that complainant's counsel will abide by the order which the commission has made in this matter, that she not withdraw from representation of Mr. Saccomandi without express approval of the tribunal before which his claim is pending. In this connection, counsel's attention is respectfully directed to Supreme Court Rule 20:1.16(c).

110

cc: 
Monica Murphy
Robert K. Weber

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