Vol. 78, No. 9, September
Hearsay in Administrative
In Gehin v. Wisconsin Group
Insurance Board, the Wisconsin Supreme Court did not strictly
adhere to the legal residuum rule, which prohibits administrative
hearing bodies from basing findings of fact solely on uncorroborated
hearsay. While Gehin provides grounds for exceptions to the rule and
addresses several satellite issues, it is unclear when corroboration is
required and when it is not.
by Sean P. Maloney
The Wisconsin Supreme Court issued an important decision on Feb. 23,
2005, concerning hearsay1 evidence in
administrative hearings. In Gehin v. Wisconsin Group Insurance
Board, the court addressed the legal residuum rule, also known as
the substantial evidence rule.2 The legal
residuum rule states that administrative hearing bodies should never
ground findings of fact solely on uncorroborated hearsay because
uncorroborated hearsay is not "substantial evidence."3
Although hearsay is admissible in administrative hearings under Wis.
Stat. chapter 227, Wisconsin law also requires that findings of fact be
supported by substantial evidence in the record.4 There has been considerable confusion and
uncertainty about how strictly the legal residuum rule applies in
Wisconsin.5 This article analyzes the
Gehin decision and includes a review of the issues the court
addressed, an overview of the underlying facts and evidence, and an
analysis of the impact and practical aspects of the decision.
Basic Facts of Gehin
On May 15, 1992, Luann Gehin injured her back while working as a
housekeeper at the U.W. Hospital. She experienced gradually worsening
pain and went on medical leave. Her last day of work was April 16, 1993.
In April 1993 she filed a claim for Income Continuation Insurance (ICI)
benefits. The administrator of the ICI program determined that Gehin's
disability began on May 3, 1993, and she was approved for ICI benefits
in June 1993. In early May 1997, however, the administrator determined
that Gehin no longer met the disability criteria for ICI benefits and
that the benefits were not payable beyond April 30, 1997. Gehin appealed
to the Group Insurance Board (the Board), which held an evidentiary
hearing on Oct. 2, 2001. The Board upheld the discontinuation of ICI
benefits. It based its findings of fact on the written medical reports
of three physicians (Dr. John Whiffen, Dr. Kenneth Redlin, and Dr.
Richard Lemon), none of whom testified at the hearing. Testimony by
Gehin and another physician (Dr. William Shannon) at the hearing
"consistently disagreed" with the written medical reports. A written
report from a physical therapist (PT) (Michael Miller), who did not
testify, also disagreed with the written medical reports. Gehin and
Shannon corroborated the PT report.6
The Gehin court engaged in an extensive and detailed
analysis of the facts and evidence.7 The
court's analysis establishes a picture that is almost entirely favorable
to Gehin and entirely unfavorable to the Board.8
The court's description of the facts and evidence, as detailed in the
endnotes to this article, establishes a factual case that cries out for
a remedy for Gehin. The court provided a remedy by holding that the
written hearsay medical reports that the Board relied on to find Gehin
not disabled were not substantial evidence. The facts are crucial to an
understanding of Gehin because the court indicated, in several
places, that its ruling is specific to the facts.9
That the Gehin decision is exceptionally fact specific also
is reflected in the very narrow way in which the court framed both the
issue and the court's conclusion:
"The following issue is presented: Does uncorroborated written
hearsay evidence alone (that is controverted by in-person testimony)
constitute substantial evidence to support the Group Insurance Board's
factual findings, which in turn form the basis for its conclusion of
., that the claimant's benefits should be terminated as
of April 30, 1997?"10
"We conclude that the uncorroborated written hearsay medical
reports alone (that are controverted by in-person testimony) did not
constitute substantial evidence to support the Group Insurance Board's
factual findings and decision to terminate the claimant's
"For the reasons stated, we conclude that the uncorroborated
written hearsay medical reports alone that were controverted by
in-person testimony did not constitute substantial evidence to support
the Group Insurance Board's Findings of Fact and decision to terminate
the claimant's benefits."12
Gehin might initially be regarded by some as an endorsement
of the legal residuum rule.13 However, for
many reasons, it is not.
The Gehin opinion is strongly wedded to the facts of the
case and this relationship provides a solid basis to argue that the
legal residuum rule does not apply to hearsay (and particularly to
written hearsay medical reports) in cases with facts less extreme than
those in Gehin - especially if the hearsay is not controverted
by in-person testimony. Further, to apply the legal residuum rule, it is
necessary to establish only that a finding of fact is based solely on
uncorroborated hearsay. The Gehin court did not need to engage
in the extensive factual analysis that it did. The fact that it did is
further evidence that Gehin cannot be regarded as general
endorsement of the legal residuum rule.
More importantly, a close reading reveals that the rule applied in
Gehin is not the legal residuum rule. The legal residuum rule
states that administrative hearing bodies should never base findings of
fact solely on uncorroborated hearsay.14
The court could have provided the remedy it did simply by strictly
applying the legal residuum rule.15 It did
not. Instead, the Gehin court provided a remedy by concluding
that uncorroborated written hearsay medical reports alone that
are controverted by in-person testimony do not constitute
substantial evidence.16 The legal residuum
rule does not require that the hearsay be written or that it be
controverted by in-person testimony. Because the court did not directly
apply the legal residuum rule - when it easily could have -
Gehin cannot be regarded as endorsing that rule.
The fact that the Gehin court applied a more limited rule,
not the legal residuum rule itself, raises a host of important
unanswered questions. Does Gehin signal that the legal residuum
rule is not to be strictly applied and adhered to in Wisconsin? At first
blush this seems unlikely because the court twice stated that it saw no
reason to "deviate in the instant case" from the legal residuum
rule.17 However, this implies that the
court may deviate from the legal residuum rule in other cases. Moreover,
as has already been explained, Gehin itself deviates from the
legal residuum rule when it fails to strictly apply it. The
Gehin court confirmed in two ways that the opinion is not an
endorsement of the legal residuum rule.
To begin with, the opinion specifically states:
- "This decision should not be read to require corroboration by
non-hearsay evidence in all instances."18
- "Corroboration of hearsay is not always required in administrative
These two statements are clear - but they are flatly inconsistent
with the legal residuum rule. Given these statements, any arguable
endorsement by Gehin of the legal residuum rule is very loose
at best, which is especially true because these statements are not
necessary to the result. The Gehin court went out of its way to
make these statements.
Additionally, the court used a weighing methodology in the course of
determining that "the Group Insurance Board should not have relied
solely on the hearsay evidence ... in the instant case."20 A weighing methodology is not consistent with
the legal residuum rule.
As a result of Gehin, the legal residuum rule is not to be
strictly applied in Wisconsin, because, according to the court,
corroboration of hearsay is not always required in administrative
proceedings in Wisconsin.21 However,
Gehin does not indicate when corroboration is required and when
it is not. The court's opinion in Gehin suggests that a
weighing or balancing test is to be used to make this determination,
taking into account such factors as the nature of the hearsay, the
importance to the proceeding's outcome of the facts sought to be proved
by introduction of the hearsay reports, considerations of economy, the
evidence opposing the hearsay reports, the lack of corroborative
evidence supporting the hearsay reports, the failure to call witnesses
to testify, and the outcome for each party.22
The suggestion that factors be weighed when determining if
corroboration is necessary makes sense, but it raises troubling
questions. For one thing, the weighing methodology appears to completely
displace the legal residuum rule. If a weighing method is to be used to
determine when corroboration is necessary, then of what use is the legal
residuum rule? Why have the legal residuum rule at all? Additionally,
Wis. Stat. chapter 227 states: "If the agency's action depends on any
fact found by the agency in a contested case proceeding, the court shall
not substitute its judgment for that of the agency as to the weight of
the evidence on any disputed finding of fact."23 What distinction is there, if any, between the
weighing method suggested by Gehin and the type of weighing of
evidence already done by administrative hearing bodies? If none, then a
court could not substitute its judgment for that of the administrative
hearing body if the judgment relates to any disputed finding of fact. On
the other hand, if a weighing methodology is not to be used, then the
original problem remains: how to determine when corroboration is
required and when it is not.
Finally, it might be that Gehin should be read in a very
limited way to mean that corroboration of hearsay is not required in
administrative proceedings only in the case of medical reports that are
not controverted by in-person testimony and that have indicia of
reliability. Gehin never states this (although a very strict
reading of the stated conclusion in Gehin would limit
Gehin to written medical reports).24 However, this interpretation would be consistent
with the court's statements that medical reports "arguably have indicia
of reliability and therefore seem to have probative force" and "medical
reports generally may be viewed as reliable."25 If Gehin is to be read in this limited
way, then why are written medical reports the only exception to the
legal residuum rule? If it is because written medical reports have
"indicia of reliability," then other types of hearsay that have the same
or similar "indicia of reliability" also should be exceptions to the
legal residuum rule. But if this is conceded, then what is left of the
legal residuum rule? A special exception should not be created for
written medical reports without also creating the same exception for
other similar types of hearsay and, in the process, abandoning a strict
application of the legal residuum rule (as Gehin has already
Gehin leaves many questions unanswered and raises many new
questions. However, one thing is probable: post-Gehin, the
legal residuum rule is not to be applied to all uncorroborated hearsay.
At best the legal residuum rule is now fuzzy, loosely applied, and
subject to exceptions.
Satellite Issues Addressed by Gehin
To the extent that the legal residuum rule applies in Wisconsin,
Gehin provides important guidance concerning eight related
First, Gehin affirms that uncorroborated hearsay is
admissible as evidence in administrative proceedings.26 This affirmation is no surprise because, as
noted above, hearsay is admissible in administrative proceedings under
chapter 227. The Gehin court pointedly stated, however, that
"[p]roperly admitted evidence may not necessarily constitute substantial
evidence."27 This statement, of course, is
precisely what gives rise to the uncorroborated hearsay issue.
Second, Gehin clarifies that administrative hearing bodies
may utilize hearsay evidence. The legal residuum rule only prohibits an
administrative hearing body from relying solely on uncorroborated
hearsay in reaching its decision.28
Third, Gehin establishes that, at least in the
Gehin case, a variant of the legal residuum rule applied even
though the claimant could have subpoenaed the author of the hearsay
report to controvert or challenge the written report.29
Fourth, Gehin clarifies that the legal residuum rule may
apply even to evidence that is admitted as an exception to the hearsay
rule.30 The court noted that this
application of the rule creates a more restrictive rule for
administrative hearings than for judicial proceedings because a decision
in a judicial proceeding may be based on admissible hearsay. The court
justified this distinction by noting that in administrative proceedings
people are often not represented by counsel, decision makers "are often
not attorneys,"31 and "[r]equiring
decision-makers to determine whether hearsay evidence falls within a
hearsay exception defeats the reasons for relaxed standards for the
admissibility of evidence in administrative agencies."32 The effect of the legal residuum rule cannot be
avoided by showing that hearsay falls within an exception.
Fifth, the Gehin court stated that "in the present case
hearsay evidence cannot corroborate hearsay evidence." It is not clear
how broadly this rule will apply because the court qualified it by
stating "in the present case." However, the reason the court gave for
this rule suggests that the court intended a broad application: "If the
agency is permitted to bootstrap uncorroborated hearsay with other
uncorroborated hearsay, the result would be the evisceration of the
requirement that there be corroboration of hearsay in order for the
hearsay evidence to form the basis of an agency's finding of
Sixth, although the Gehin court did not define what
constitutes "corroboration" for purposes of the legal residuum rule, it
did state that "[t]he present case is not governed by the corroboration
requirements set forth in cases involving recantation or a statement
against penal interest."34 The court
discussed the corroboration requirements in cases involving recantation
and a statement against penal interest.35
Also, the concurring opinion in Gehin stated: "[C]orroboration
can be introduced in a number of ways. Claimants who have a medical
condition can testify as to that condition. Other witnesses can be
called as well. Testimonial evidence would provide the corroboration
necessary to allow a hearing examiner to consider hearsay medical
reports concerning the condition."36
Seventh, Gehin clarifies that the legal residuum rule "does
not prevent parties from stipulating to factual findings." The parties
may stipulate "to the submission and reliance upon the contents of
written hearsay reports. The parties may also agree that the agency may
base its findings of fact solely on uncorroborated hearsay."37 In such cases corroboration of hearsay is not
Eighth, the Gehin court raised, but did not decide, the
issue of whether a failure to object to the use of uncorroborated
hearsay is a waiver of the right to object.38 "We need not decide whether the claimant waived
her right in the present case to challenge the bases of the Findings of
Fact. We address the issue presented here because the parties have had
an opportunity to brief the substantial evidence issue and because the
application of the legal rule ... presents an issue of
importance."39 Before Gehin there
was reason to believe that an objection might be required in order to
avoid waiver.40 Now, after Gehin,
whether an objection is required appears to be a more open question.
Practical Aspects of the Legal Residuum Rule
The administrative hearing process covers a very broad area of the
law in Wisconsin, including the licensing of dams, the licensing of
nursing homes, the placement of a person's name on the caregiver
misconduct registry due to allegations of misconduct, and food stamp and
Medicaid disputes.41 Many of the disputes
resolved by administrative hearings do not involve large amounts of
money. The nongovernmental party is often of limited financial means,
and often one or both parties are not represented by attorneys. For
these reasons administrative hearings are designed and intended to be
accessible, affordable, and understandable. This is why most evidentiary
rules do not apply to such hearings.42
Factual determinations in administrative hearings often are based on
hearsay that has indicia of reliability but that is not corroborated in
any substantial way. There is simply no way to avoid this situation if
administrative hearings are to function as designed and remain
accessible, affordable, and understandable. For instance, to qualify for
food stamps and Medicaid, a person must satisfy income, asset, and
sometimes medical criteria. Whether claimants have met these criteria
often are issues at administrative hearings, and such issues most often
are resolved based on uncorroborated hearsay documents that have indicia
of reliability, such as paycheck stubs, letters from employers, state
computer print-outs, and reports from medical professionals.
Such documents can sometimes, but not always, be corroborated by the
testimony of the food stamp or Medicaid applicant. Sometimes applicants
do not appear at the administrative hearing but send a friend or
relative instead. Sometimes applicants do not recall what they earned
because they have worked numerous temporary jobs over a short time span;
sometimes they have no understanding of their own medical condition;
sometimes an applicant's testimony is inconsistent with the documentary
To require meaningful corroboration in such cases would change the
administrative hearing process from accessible, affordable, and
understandable to inaccessible, unaffordable, and complex.43 The Gehin court acknowledged this: "We
recognize the importance of allowing claimants to present their position
as simply and inexpensively as possible, including by means of written
medical reports without having to present the testimony of the author of
the reports. This decision should not be read to require corroboration
by non-hearsay evidence in all instances."44 The need to keep administrative hearings
accessible, affordable, and understandable is undoubtedly why the
Gehin court did not strictly apply the legal residuum rule and,
instead, provided ample grounds to argue for exceptions to it.
The legal residuum rule prohibits administrative hearing bodies from
basing findings of fact solely on uncorroborated hearsay. The
Gehin court did not strictly adhere to the legal residuum rule,
provided grounds for exceptions to it, and addressed several satellite
issues surrounding it. Post Gehin, corroboration of hearsay is
not always required, but it is not clear when corroboration is required
and when it is not. As a practical matter, strict adherence to the legal
residuum rule is not possible if administrative hearings are to remain
accessible, affordable, and understandable.
Sean P. Maloney, Stanford 1987, has been
an administrative law judge for the state of Wisconsin since 1995 and
conducts hundreds of administrative hearings every year concerning many
government programs. He is a member of the bar in California, Hawaii,
Washington, D.C., Wisconsin, and various federal courts. He holds an
M.A. in philosophy from U.W.-Madison. The views offered here are the
author's and do not necessarily represent the views of any other
person or organization. He thanks Peter Anderson and the Wisconsin
Lawyer Editorial Board for their valuable suggestions on drafts of this
1"'Hearsay' is a statement, other
than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." Wis.
Stat. § 908.01(3). Some statements are defined not to be
hearsay even though they otherwise would be. See,
e.g., Wis. Stat. § 908.01(4). All citations to the
Wisconsin Statutes are to the 2003-04 edition unless specifically stated
2Gehin v. Wisconsin Group Ins.
Bd., 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572.
3Id. ¶¶ 53-56,
4Wis. Stat. §§ 227.45(1),
5See Village of
Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct.
App. 1987); City of Superior v. DILHR, 84 Wis. 2d 663, 672 n.6,
267 N.W.2d 637 (1978); Outagamie County v. Town of Brooklyn, 18
Wis. 2d 303, 312 n.3, 118 N.W.2d 201 (1962); Folding Furniture Works
v. Wisconsin Labor Relations Bd., 232 Wis. 170, 189, 285 N.W. 851
6Gehin, 2005 WI 16,
¶¶ 12, 13, 16-21, 26-37, 278 Wis. 2d 111.
7More than 40 percent of the
court's opinion (47 of 110 paragraphs) is devoted to a discussion and
analysis of the facts and evidence. See Gehin, 2005 WI 16,
¶¶ 9-47, 71-78, 278 Wis. 2d 111. This lengthy discussion may
be expected simply because Gehin deals with the substantial
- 8"The Group Insurance Board
discounted and disparaged [and disregarded] Mr. Miller's evaluation,
stating that `it does not appear from the record that Mr. Miller had the
benefit of the contract definition [of disability].'" Gehin,
2005 WI 16, ¶¶ 20, 35, 278 Wis. 2d 111.
- "In quoting Dr. Lemon's report the Wisconsin Group Insurance Board
obviously accepted Dr. Lemon's expert medical opinion that the claimant
was [not] permanently disabled." Id. ¶ 22. The word "not"
does not appear in the Gehin opinion at this point. This is an
obvious typographical error because Dr. Lemon's report clearly concluded
that Gehin was not disabled. See id. ¶¶ 21,
25, 32, 37, 72, 73.
- "Dr. Lemon never rendered an opinion whether the claimant was
[disabled] under the contract. Dr. Lemon remarked that he could not
believe she was `totally unemployable.' This remark is not responsive or
relevant to the issue of [disability] under the contract...."
Id. ¶ 72.
- "Dr. Wiffen completed a form dated November 27, 1996, asking whether
the patient is totally disabled. His markings are internally
inconsistent." Id. ¶ 74. "[W]e do not know what definition
of totally disabled Dr. Wiffen was using." Id. ¶ 75.
- "The Group Insurance Board disregarded Dr. Shannon's expert opinion
testimony, stating that Dr. Shannon did not treat or examine the
claimant in 1997, the relevant time period." Id. ¶
- "The Group Insurance Board for all intents and purposes ignored the
claimant's own testimony about her physical ability." Id.
- "The claimant thus corroborated the letter [concerning her
vocational rehabilitation program at the Mendota Mental Health
Institute] that she was not able to be at the job training program more
than 24 to 30 hours a week (sometimes less), that she was in pain, and
that she was unable to remain in one position (standing or sitting) for
any length of time." Id. ¶ 40.
- "The Department of Employee Trust Funds failed to present even a
single live witness to corroborate the contents of the written medical
reports about the claimant's ability to work full time and their version
of her physical work restrictions. The Group Insurance Board relied
solely on these medical reports in its Conclusions of Law that the
claimant could work full time with permanent work restrictions."
Id. ¶ 42.
- "Although the Group Insurance Board calculated the minimum amount
the claimant would have had to earn in the spring of 1997 [to be
considered not disabled], none of its findings (and none of the
evidence) states that a job was available which fit the claimant's
permanent work restrictions and would enable her to earn [enough to be
considered not disabled] on either a full or part time basis."
Id. ¶ 43.
- "At best, the hearsay medical reports declared that the claimant is
able to work full time with restrictions, namely a job in which she
could alternate between sitting and standing, in which she need not lift
more than 5 pounds, in which she need not do any carrying, and in which
she must avoid stooping, bending or twisting. The written hearsay
medical reports about the claimant's physical restrictions or ability to
work full time, upon which the Group Insurance Board based its Finding
of Fact and its decision to terminate the claimant's benefits, are
uncorroborated and in fact were contradicted by live testimony."
Id. ¶ 45.
- "The claimant's testimony and witnesses presented a prima facie case
that she was [disabled]." Id. ¶ 46.
- "Therefore, if the uncorroborated written hearsay medical reports
are eliminated from consideration, no evidence exists in the record to
support the findings that the claimant was able to work full time with
the permanent physical work restrictions described by the doctors or the
Board's conclusion of law that the claimant did not meet the contractual
requirements [of disability]." Id. ¶ 47; see also
id. ¶ 114 (Butler, J., concurring).
- 9"Upon analyzing the hearsay
evidence and live testimony we conclude that we should not deviate
in the instant case from the long-standing rule in Wisconsin
that uncorroborated hearsay alone does not constitute substantial
evidence." Id. ¶ 8 (emphasis added).
- "Medical reports arguably have indicia of reliability and therefore
seem to have probative force; they are furnished by independent,
impartial experts and are arguably admissible as exceptions to the
- "Nevertheless, the reliability and probative force of the written
medical reports in the present case are suspect." Id.
¶¶ 69_70 (emphasis added).
- "Weighing the nature of the doctors' responses, the importance of
the facts sought to be proved by the hearsay medical reports to the
outcome of the proceedings and considerations of economy; the evidence
opposing the hearsay reports; the lack of any corroborative evidence
supporting the hearsay reports; the failure of the Department of
Employee Trust Funds to call the doctors to testify; and the outcome for
each party, our conclusion that the Group Insurance Board should not
have relied solely on the hearsay evidence is appropriate in the
instant case." Id. ¶ 80 (emphasis added).
- "We see no reason to deviate in the instant case from the
long standing rule in Wisconsin ... consistently followed for 65
years in subsequent cases that uncorroborated hearsay alone does not
constitute substantial evidence in administrative proceedings. The rule
balances competing concerns about administrative expediency and
fundamental fairness." Id. ¶ 81 (emphasis added).
- "Even though medical reports generally may be viewed as reliable,
our review of the record raises significant questions about the
reliability of these controverted reports and about the need for
clarification of the reports by live testimony." Id. ¶ 91
10Id. ¶ 3.
11Id. ¶ 4.
12Id. ¶ 110.
e.g., High Court Reaffirms "Legal Residuum Rule,"
19 Wis. L.J. 9 (March 2, 2005), page 1A.
14Gehin, 2005 WI 16,
¶¶ 53-56, 58, 278 Wis. 2d 111.
could have reached the same result by accepting the hearsay evidence and
finding it not substantial on its face (thus avoiding the substantial
evidence hearsay issue altogether). See id. ¶¶ 43,
45; see supra note 8, bullets 9 & 10.
16Gehin, 2005 WI 16,
¶¶ 4, 110, 278 Wis. 2d 111; see supra notes
10 & 11 and accompanying text.
17Gehin, 2005 WI 16,
¶¶ 8, 81, 278 Wis. 2d 111; see supra note 9,
bullets 1 & 4.
18Gehin, 2005 WI 16,
¶ 103, 278 Wis. 2d 111.
19Id. ¶ 104. The
court uses stipulations as one example.
20Id. ¶ 80 (court
engages in weighing methodology); see supra note 9,
bullet 3; see also, Gehin 2005 WI16, ¶ 81 278
Wis. 2d 111(court refers to "balancing competing concerns").
21Gehin, 2005 WI 16,
¶¶ 103, 104, 278 Wis. 2d 111; see supra
notes 18 & 19 and corresponding text.
22Gehin, 2005 WI 16,
¶ 80, 278 Wis. 2d 111; see supra note 9, bullet 3; see
also Gehin, 2005 WI 16, ¶ 81, 278 Wis. 2d 111.
23Wis. Stat. § 227.
2005 WI 16, ¶¶ 4, 110, 278 Wis. 2d 111; see supra
notes 11 & 12 and accompanying text.
25Gehin, 2005 WI 16,
¶¶ 69, 91, 278 Wis. 2d 111; see supra note 9, bullets
2 & 5. The Gehin court also quoted a commentator as
follows: "In effect, medical reports constitute a class exception, at
least in Social Security disability cases." Gehin, 2005 WI 16,
¶ 65, 278 Wis. 2d 111.
49-50, 86 (citing to Wis. Stat. chapter 227).
27Id. ¶ 52.
28Id. ¶¶ 51,
29Id. ¶ 84.
30Id. ¶ 89.
31In Wisconsin this probably is
not true as most decision makers (that is, hearing examiners and
administrative law judges) are attorneys. In fact, the hearing examiner
in Gehin was an attorney and Gehin was represented by counsel.
See id. ¶ 185 (Prosser, J., dissenting).
32Id. ¶ 90.
33Id. ¶ 92. It is
curious that at one point in Gehin the court appears to make
use of oral hearsay testimony to form at least part of the corroboration
for written hearsay. See id. ¶ 40.
34Id. ¶ 101.
36Id. ¶ 113
(Butler, J., concurring).
37Id. ¶ 104.
38As the court noted, the
objection must be to "Findings of Fact being based on uncorroborated
hearsay evidence" and not to the hearsay itself. An objection "on the
grounds of hearsay would have been futile." See id. ¶
County, 18 Wis. 2d at 312.
41For more information on the
administrative hearing process, see A Primer on Administrative
Hearings, 76 Wis. Law. 7 (July 2003),
<www.wisbar.org/wislawmag/2003/07> and A Primer on
Miscellaneous Hearings, 76 Wis. Law. 9 (Sept. 2003),
42Wis. Stat. §
43One way around this would be to
require only a very low level of corroboration, but this would undercut
the very purpose of the legal residuum rule and gut it of its
44Gehin, 2005 WI 16,
¶ 103, 278 Wis. 2d 111.