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


MICAH ORIEDO, Complainant

MADISON AREA TECHNICAL COLLEGE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604324, EEOC Case No. 26G970121


This matter is before the commission on a petition for review of an Order by an Administrative Law Judge (ALJ) of the Equal Rights Division which dismissed the complaint.

At the hearing, the ALJ quashed certain subpoenas which Complainant had served in an attempt to compel the attendance of certain witnesses. After the ALJ quashed the subpoenas, the Complainant moved for a postponement of the hearing to allow him to make proper service of the subpoenas which had been quashed, but the Administrative Law Judge denied the request for a postponement. Following this, the Complainant declined to go forward with the presentation of his case. The Respondent then moved for an order dismissing the complaint based on the Complainant's failure to present any evidence, and the Administrative Law Judge granted the order. This petition for review followed.

The issues for decision are whether the subpoenas were properly quashed, whether a postponement should have been granted in view of the quashing of the subpoenas, and whether the complaint should have been dismissed.

Order quashing subpoenas -- The ALJ quashed the subpoenas on the grounds that pre-payment of witness fees and travel expenses had not been tendered with the subpoenas when they were served. He relied on Wis. Stat. 885.06 (1), which provides:

(1) Except when subpoenaed on behalf of the state, of a municipality in a forfeiture action, or of an indigent respondent in a paternity proceeding, no person is required to attend as a witness in any civil action, matter or proceeding unless witness fees are paid or tendered, in cash or by check, share draft or other draft, to the person for one day's attendance and for travel.

The Complainant's petition for review asserts that the subpoenas were not defective. Judging from arguments he made to the ALJ in an attempt to persuade him to set aside his order, Complainant's theory is that he was acting as a "private attorney general" to enforce the rights of the public and implement public policy, and that by implication the State of Wisconsin was actually a party in the case. Thus, he argues, the witnesses he attempted to subpoena were being summoned "on behalf of the state" within the meaning of Wis. Stat. 885.06 (1) and were therefore not entitled to pre-payment of witness fees and travel expenses.

The commission believes that Complainant's "private attorney general" argument has no merit. For other reasons, however, the commission questions whether the Administrative Law Judge was correct in holding that pre-payment of witness fees and travel expenses was required.

Pre-payment of witness fees and travel expenses -- The Administrative Procedure Act, Ch. 227, which governs procedure in hearings before the Equal Rights Division, provides that:

A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.

Wis. Stat. 227.45 (6m). The Equal Rights Division has adopted a substantially similar provision as part of its administrative rules. As noted in the Administrative Law Judge's decision in this case, Wis. Admin. Code ILHR 218.15(1) provides:

Subpoenas. The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07 (4), Stats., and shall be served in the manner provided in s. 805.07 (5), Stats. Witnesses summoned by subpoena shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. The cost of service, witness and mileage fees shall be paid by the person issuing the subpoena. Subpoenas may be enforced pursuant to s. 885.11, Stats.

The Administrative Law Judge reasoned that pre-payment of witness fees was required, in this way:

Section 805.07 (4), Stats., provides that "[s]ubpoenas shall be issued and served in accordance with ch. 885". Within ch. 885, Stats., s. 885.06, entitled, "Witness fees, prepayment of" states in part "no person is required to attend as a witness in any civil action, matter or proceeding unless witness fees are paid or tendered...to the person for one day's attendance and travel".

However, the statement that "[s]ubpoenas shall be issued and served in accordance with ch. 885", is not found in Wis. Stat. 805.07(4), but in Wis. Stat. 805.07(1). This is significant because both the applicable statutory provision concerning use of subpoenas in administrative hearings before the Equal Rights Division, Wis. Stat. 227.45 (6m), as well as the ERD's rule, Wis. Admin. Code ILHR 218.15 (1), specifically refer to and incorporate only selected subsections (s. 805.07(4) and (5)).

Neither subsections (4) or (5) contain any requirement that witness fees be pre-paid, nor do they refer to or incorporate that requirement by way of reference to Ch. 885. (1)

While the ERD's rule provides that witnesses are "entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats." and that "[t]he cost of service, witness and mileage fees shall be paid by the person issuing the subpoena", the rule does not expressly provide that the witnesses are entitled to the fees when the subpoena is served, or that the fees must be pre-paid at the time the subpoena is served, or by the person serving the subpoena. There is also no requirement for pre-payment in the specific provisions (Wis. Stat. 814.67 (1) (a) and (c)) referred to in the rule.

For these reasons, the commission considers that it is questionable whether pre-payment of witness fees and travel expenses is required when subpoenas for attendance at Equal Rights Division hearings are served. The language in the statutes and the rules is, at best, ambiguous on the issue.

Notwithstanding this, the commission agrees with the result reached by the Administrative Law Judge on the subpoenas, for the reasons discussed below.

Issuance of subpoenas by a non-attorney -- The subpoenas which were challenged in this case were signed by Complainant Michah A. Oriedo on his own behalf. Complainant is not an attorney. According to the Administrative Law Judge's decision, this was raised as a point of objection to the subpoenas in the discussions on the day of hearing:

On the day of the hearing, May 27, 1998, Mr. Oriedo appeared and indicated he was representing himself. Mr. Balele was also in attendance. MATC appeared in the person of Will Strycker and was represented by Mr. Moore. Mr. Vergeront appeared and moved to quash the subpoena for Mr. Huett. Mr. Moore moved to quash the subpoenas for Ms. Simone, Mr. Harris and Ms. Findlen (Ms. Bassett was present in the hearing room and was on Respondent's witness list, therefore Mr. Moore was not contesting the subpoena for her attendance).

For his motion, Mr. Vergeront relied primarily on the argument that the rules of the Department of Workforce Development required service of subpoenas for witnesses to be in compliance with state statutes on service in civil cases, and that those statutes required the tender of witness fees and transportation costs in advance. Mr. Moore joined in the argument of Mr. Vergeront and added that the Department rule allows for the issuance of subpoenas only by the Department or by a party's attorney of record, not by an unrepresented party or a non-attorney on his behalf, as was the case here. (emphasis added)

The Administrative Law Judge found it unnecessary to address this issue in view of the ruling he had made based on the theory that there should have been a tender of fees and expenses when the subpoenas were served. The commission, however, believes that the issue is dispositive of the validity of the subpoenas.

The question of whether a non-attorney may issue a subpoena for an ERD hearing is governed not only by the Department's rule but also by the statutory section it is based on, Wis. Stat. 227.45 (6m). These both provide, expressly, that a subpoena may be issued by "a party's attorney of record".

Prior to the enactment of Wis. Stat. 227.45 (6m), the only statutory provisions relating to issuance of subpoenas for administrative hearings was Wis. Stat. 885.01(4), which provided that subpoenas could be signed and issued by "any...board, commission, commissioner, examiner...or other person authorized to take testimony". While there was statutory authorization in Wis. Stat. 805.07(1) for attorneys to issue subpoenas "in a civil action or proceeding", those terms were understood as terms of art, the meaning of which was informed by Wis. Stat. 801.01(1), which divides "proceedings in the courts" into "actions" and "special proceedings". Thus, for many years, the practice was that subpoenas to compel the attendance of witnesses in administrative proceedings could only be issued by the Department. Wisconsin Statutes 227.45 (6m) was subsequently created (by 1989 Act 139) for a limited purpose: to allow attorneys to issue subpoenas in administrative proceedings.

The commission finds it evident from the language and history of Wis. Stat. 227.45 (6m), that only a member of the bar (or the Department itself) may issue a subpoena requiring attendance at a hearing before the Equal Rights Division. As noted above, Oriedo is not an attorney. He had no legal authority to issue a subpoena. The challenged subpoenas in this case, having been issued by a non-attorney, were thus legal nullities. They would and should properly have been quashed for that reason.

Even though the Administrative Law Judge may have relied on a different rationale, an objection to their issuance by a non- attorney had been expressly raised before him. As discussed above, the objection was meritorious. For these reasons, the commission therefore affirms the decision of the Administrative Law Judge to quash the subpoenas.

Denial of postponement -- The commission also agrees with the Administrative Law Judge, that Complainant's service of defective (and thus voidable) subpoenas, did not establish "good cause" for a postponement or continuance under Wis. Admin. Code ILHR 218.18 (2). The requirement that subpoenas be issued either by a party's "attorney of record" or the department, is clear and unambiguous. It was well within Complainant's power to have complied with the law by requesting the department to issue subpoenas for his use.

Of course, it might be asserted that the error was attributable precisely to the fact that Oriedo was not an attorney, and so did not understand the applicable procedural requirements as readily as an attorney might. However, parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Hammer v. G.E. Medical Systems (LIRC, 08/29/89). For these reasons, the commission affirms the decision of the Administrative Law Judge to deny a postponement or continuance.


Dismissal based on failure to present evidence -- The dismissal of the complaint upon Complainant's failure to proceed at hearing was clearly appropriate. Complainant presented no evidence; there was thus no record on which to make a finding in his favor. Where a complainant appears at a hearing but does not put in any evidence, a summary order of dismissal is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof. See, Jackson v. City of Milwaukee (LIRC, 10/28/93).

For the reasons given above, the commission now makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed: July 24, 1998
oriedom.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: John M. Moore, Attorney for Respondent


Appealed to Circuit Court.  Affirmed May 20, 1999.

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Footnotes:

(1)( Back ) While Wis. Stat. 805.07 (5) does provide that "a subpoena may be served in the manner provided in s. 885.03" (emphasis added), that section merely provides that "[a]ny subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness's abode." It does not address the issue of pre-payment of witness fees and travel expenses.