Wisconsin Administrative Code › Department of Administration-Division of Hearings and Appeals › Chapter HA 2 - Procedure And Practice For Corrections Hearings › Appendix - Appendix

Current through June 24, 2024
1989 Wis. ct 107 transferred responsibility for corrections
						related hearings from the department of health and social services to the
						division of hearings and appeals on January 1, 1990. These rules fulfill the
						legislative mandate of 1989 Wis. ct 107 and recreate procedural rules to govern
						corrections hearings. They replace ss. HSS 31.05, 31.13 (4) and 31.14 (4),Wis.
						dm. Code. l though these rules are largely taken from the HSS rules, some
						revisions are made and some new provisions are created to address subjects not
						covered by the previous rules. Unless otherwise noted, the changes are intended
						to simplify and clarify the rules and are not meant to change the original
						intent. The remaining portions of ch. HSS 31 dealing with substantive probation
						and parole issues have been separately promulgated by the department of
						corrections in ch. DOC 331.
Note: H 2.01 APPLICTION OF RULES. Section
						227.03(4),
						Stats., provides that the contested case provisions of ch. 227 do not apply to
						proceedings involving the revocation of parole or probation accordingly, it is
						intended that the provisions of ch. H 1 not apply in corrections
						proceedings.
Note: H 2.02 DEFINITIONS. The definitions come from ch. DOC
						328. The definition of has been clarified to mean actual working days in
						conformity with practice and its usage in s. HSS 31.05. The term is new.
Note: H 2.03 SERVICE OF DOCUMENTS. This section is new and will
						permit the parties to file documents by regular first class mail,
						inter-departmental mail and by facsimile transmission in addition to the more
						formal methods of personal service, registered or certified mail. The changes
						are intended to reduce administrative costs associated with the hearing process
						and to give the parties the convenience of filing documents by facsimile
						transmission. The mailing address of the division is: 5005 University ve.,
						Suite 201, Madison, WI 53705-5400. The facsimile transmission number of the
						division is: (608) 267-2744.
Note: H 2.04 WITNESSES ND SUBPOENS. These rules will allow
						attorneys to issue subpoenas under the same procedure as provided by s.
						805.07(1),
						Stats. l though the division reserves the right to issue subpoenas directly,
						the attorneys are in a better position to issue the necessary subpoenas and the
						division's responsibility should be limited to cases where a party is not
						represented by an attorney or where the division is asked to modify or cancel a
						subpoena.
Note: H 2.05 REVOCTION HERINGS. This section replaces s. HSS
						31.05 which was developed in 1981 from the broad outlines of the revocation
						process drawn by the U.S. Supreme Court in Morrissey v . Brewer, 411 U.S. 778
						(1973). Like the prior rules, these rules reflect an attempt to provide a fair
						hearing procedure that is also efficient and speedy.
Subsection (1) is patterned after s. HSS 31.05 (1) and requires
						the notice of hearing to be issued within 5 working days of receipt of the
						hearing request. Subsection (1) (b) has been revised to clarify that the notice
						must contain a statement of the alleged violation in addition to the rule or
						condition violated. Subsection (1) (d) reflects actual practice and clarifies
						that only a listing of evidence and witnesses is required. It also allows the
						department to withhold disclosure of such information if it is confidential or
						if disclosure would threaten the safety of a witness or another. Subsection (1)
						(e) clarifies that prehearing disclosure of evidence should come from the
						department rather than from the division. The former provision which required
						identification of unavailable witnesses in the notice has been eliminated
						because: such information is rarely, if ever, known to the department at the
						time the notice is issued; these issues can be better addressed at the hearing,
						and; witnesses are otherwise identified under sub. (1) (d).
State ex rel. Flowers v. DHSS, 81 Wis. 2d 376 (1978).
Subsection (3) is taken from s. HSS 31.05 (1) (h).
Subsection (4) replaces s. HSS 31.05 (3) and recognizes the
						requirement that hearings for persons confined in a county facility must begin
						within 50 calendar days of detention as mandated by s.
						302.335,
						Stats. Subsection (4) (b) replaces the former rule of s. HSS 31.05 (3)(b),
						incorporates factors necessary to determine compliance with s.
						302.335,
						Stats., and incorporates postponement criteria used by courts as summarized in
						rule is unworkable because many valid reasons for postponements arise more than
						5 days after the notice is issued. The division does not interpret s.
						302.335,Stats.,
						or s. H 2.05 (4) as a jurisdictional time limit.
Subsection (5) replaces s. HSS 31.05 (4) and creates new
						special protective procedures for witnesses in light of the decision in 150
						Wis. 2d 374 (1989). l though the confrontation rights applicable in a
						revocation hearing are not the same as those in a criminal proceeding, the
						standards and criteria for special protective procedures described in are
						informative and have provided the basis for these revised procedures. This
						section is broader than Thomas, however, in that it applies to all witnesses
						whenever the requisite need is established. This subsection is intended to
						permit use of protective procedures such as a screen, one-way mirror, televised
						or video taped testimony and, if necessary, exclusion of a client from the
						hearing room when such action is necessary to protect a witness from the
						substantial likelihood of significant psychological or emotional trauma or to
						enable a witness to give effective, truthful testimony at the hearing.
Subsection (6) presents a description of what is to occur at
						the hearing. The provision that the hearings are not open to the public
						reflects the historical fact that the hearings most often occur in a jail or
						other secure detention facility and the belief that such hearings are not a as
						those terms are used in s.
						19.82, Stats. The
						rule on the inapplicability of the rules of evidence comes from s.
						911.01(4)
						(c), Stats. The rule that a judgment of
						conviction conclusively proves a violation comes from State ex rel. Flowers v.
						H&SS Department, Morrissey v. Brewer, 408 U.S. 471, 484 (1972) and reflects
						a belief that a parolee or probationer should not be allowed to relitigate
						issues determined in other forums, as in the situation presented when the
						revocation is based on conviction of another crime. No distinction is made
						between judgements resulting from trial and those resulting from a plea.
Subsection (7) replaces s. HSS 31.05 (6). The revocation
						criteria of sub. (7) (b) 3 come from the holding in State ex rel. Plotkin v.
						H&SS Department, 63 Wis. 2d 535 (1974) and replace the former language
						found at s. HSS 31.05 (6) (b) 4. The changes are appropriate to clarify the
						criteria and to clarify that revocation may occur if the administrative law
						judge finds that any one of the criteria is met and that there are no
						appropriate alternatives to revocation. The former provision of s. HSS 31.05
						(6) (c), citing the goals and objectives of supervision under ch. DOC 328, has
						been eliminated because it was not in complete harmony with the criteria and
						generated confusion over the revocation standard. Tolled time is permitted by
						s.
						304.072,
						Stats. Sentence credit is required under s.
						973.155,
						Stats.
Subsection (8) replaces s. HSS 31.05 (9) and (10). Prior to
						January 1, 1990, revocation appeals were reviewed by the secretary of the
						department of health and social services. These rules direct that such appeals
						be reviewed by the division administrator as provided in s.
						301.035(4),
						Stats. The administrator's decision is the final decision and is not subject to
						further administrative review. The appeal, including all supporting materials
						and arguments, must be filed by the appellant within 10 working days of the
						decision. The opposing party then has 7 working days to respond. The parties
						are not responsible for assembling the record.
Subsection (9) replaces s. HSS 31.05 (11). In the past, the
						secretary of the department of health and social services had 7 working days to
						decide the appeal from the date the secretary received the record and synopsis
						from the department's office of administrative hearings. Since assembly of the
						record and preparation of the synopsis often took several weeks, the
						secretary's final decision was similarly delayed. These rules recognize the
						time required for assembly of the record and provide that the division has only
						21 working days from the date the appeal is received to issue the final
						decision.
Judicial review of a revocation decision is by certiorari in
						the county in which the client was last convicted of an offense for which the
						client was on parole or probation. See: State ex rel. Johnson v. Cady, 50 Wis.
						2d 540 (1971) and s.
						801.50(5),
						Stats.
HA 2.06 GOOD TIME FORFEITURE ND REINCRCERTION HERINGS. This
							section combines the former provisions of ss. HSS 31.13 and 31.14 in one
							combined hearing section. These procedures are used only when the client waives
							a revocation hearing but does not waive a good time forfeiture or
							reincarceration hearing. The appeal procedures are clarified in conformity with
							the appeal procedures created in s. H 2.05 (7).
Note: HA 2.07 TRNSCRIPTS. Under this section, production of a
							transcript requires a writ of certiorari or prepayment of the transcription
							costs. transcript is not prepared until the writ or prepayment is received and
							will require several weeks to complete. party may also tape record the hearing
							at their own expense.
Note: HA 2.08 HRMLESS ERROR. This section broadens the
							harmless error provisions of the former rules to include variance from
							procedural requirements as well as variance from time limits. s in the past, an
							error can be found harmless only if it does not affect the client's substantive
							rights.