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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
September 30, 1999
                                                                                                         A  party  may  file  with  the  Supreme  Court  a
                                                                                                         petition  to  review  an  adverse  decision  by  the
                                                                               Marilyn L. Graves
                                                                                                         Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                               Clerk, Court of Appeals
                                                                                                         STATS.
                                                                               of Wisconsin
No.                                                                            99-0256
                                                                               STATE OF WISCONSIN
                                                                                                         IN COURT OF APPEALS
                                                                                                         DISTRICT IV
TIMOTHY J. WEISS,
PLAINTIFF-APPELLANT,
V.
LABOR AND INDUSTRY REVIEW COMMISSION, THE BRUCE
COMPANY OF WISCONSIN, INC., AND GTE NORTH,
INC., C/O GATES MCDONALD CO.,
DEFENDANTS-RESPONDENTS.
APPEAL from an order of the circuit court for Columbia County:
RICHARD L. REHM, Judge.   Affirmed.
Before Vergeront, Roggensack and Deininger, JJ.
PER CURIAM.    Timothy  Weiss  appeals  a  trial  court  order  that
upheld an unemployment compensation ruling by the Labor and Industry Review
Commission  (LIRC).    LIRC ordered  Weiss to repay over  $3,000 in overpaid




No(s). 99-0256
unemployment  compensation  benefits.    LIRC  upheld  the  administrative  law
judge’s (ALJ) ruling that Weiss had not made reasonable work-search efforts and
that he had misrepresented those efforts.   Weiss argues that the ALJ displayed bias
and favoritism by the way she cross-examined him at the hearing, assuming the
role of an advocate, in violation of due process principles established in Guthrie v.
WERC,  111 Wis.2d  447,  331 N.W.2d  331  (1983), and Nova Services, Inc. v.
Village of Saukville, 211 Wis.2d 691, 565 N.W.2d 283 (Ct. App. 1997).   For that
reason, Weiss asks us to set aside LIRC’s decision and dismiss the matter.   In
response LIRC argues, among other things, that the trial court lacked jurisdiction
to  review  LIRC’s  decision.    We  conclude  the  ALJ  did  not  show  bias  and
favoritism and reject Weiss’ claims on their merits.   We therefore need not address
LIRC’s jurisdictional arguments.
We briefly mention a few actions by the ALJ that Weiss cites as
improper.   At one point Weiss was testifying about his telephone conversation
with a claims investigator.   He stated that the conversation took place just after the
death of a good friend, and as a result he was distraught and gave the investigator
misleading information.   The ALJ asked Weiss if he asked to have the telephone
interview rescheduled for that reason and Weiss answered “no.”   At another point
the ALJ asked Weiss in direct terms whether he was conceding that he failed to
look for work over a time frame that he did not account for in his application.   The
ALJ  also  asked  Weiss  to  explain  the  unusually  large  number  of  prospective
employers he contacted who were not hiring workers, implying that Weiss had
purposefully sought out nonhiring employers.   In a similar line of questioning, the
ALJ asked  Weiss whether he  secured any job offers during the  time he  was
applying for benefits, seemingly suggesting dishonesty by Weiss.   Last, the ALJ
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No(s). 99-0256
made some evidentiary rulings against Weiss and asked his counsel not to use
leading questions.
A party to an administrative hearing has a due process right to a fair
and impartial decision maker, and this right is violated both when there is bias in
fact and when the risk of bias is impermissibly high.   See Guthrie, 111 Wis.2d at
454, 331 N.W.2d at 335.   In Guthrie, the court held that where the decision maker
had acted as counsel to any party in the same action or proceeding, the risk of bias
was impermissibly high.   Id. at 460, 331 N.W.2d at 337.   Similarly, in Nova we
held that a village attorney acting as prosecutor in an adversarial proceeding and
then participating in the decision making process violated due process because the
risk of bias was impermissibly high.   See Nova, 211 Wis.2d at 697, 565 N.W.2d at
286.    The ALJ in this case had never been an attorney for any party to this
proceeding.   Having carefully reviewed the record, we do not agree that she was
acting as an advocate for any party, and we see no bias or favoritism by the ALJ in
any of the actions mentioned above or at any other place in the transcript.
The court in Guthrie specifically noted that the combination of the
investigatory and adjudicatory functions in a single tribunal does not necessarily
present an impermissibly high risk of bias, and there is a presumption of honesty
and regularity in those serving as adjudicator, which must be overcome by one
challenging the fairness of a tribunal on such a theory.   See Guthrie, 111 Wis.2d at
455, 331 N.W.2d at 335.   Courts in other jurisdictions have recognized that ALJs
may  vigorously  cross-examine  witnesses  without  becoming  guilty  of  bias  or
favoritism.   See Meadows v. SEC, 119 F.3d 1219, 1227-28 (5th Cir. 1997); In re
O’Connor,  561  N.Y.S.2d  318,  320  (N.Y.  App.  Div.  1990).    Here  the  ALJ
thoroughly cross-examined Weiss about his work-search efforts and other matters,
putting Weiss through a pointed but fair-minded inquiry.   The ALJ has a mandate
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No(s). 99-0256
to develop the facts and the power to execute that mandate, see WIS. ADM. CODE
§§ DWD  140.15  and  140.16,  and  execution  of  that  mandate  may  sometimes
require probing questions to get to the truth.   We likewise see no bias in the ALJ’s
evidentiary  rulings.                                                                   They  represent  fair  and  dispassionate  control  of  the
proceedings.   We therefore conclude that the trial court correctly decided Weiss’
due process rights were not violated.
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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