Proceedings for review shall be instituted by serving a petition therefor personally or by certified mail upon the agency or one of its officials, and filing the petition in the office of the clerk of the circuit court for the county where the judicial review proceedings are to be held. If the agency whose decision is sought to be reviewed is the tax appeals commission, the banking review board, the consumer credit review board, the credit union review board, the savings and loan review board or the savings bank review board, the petition shall be served upon both the agency whose decision is sought to be reviewed and the corresponding named respondent, as specified under par. (b) 1.
Unless a rehearing is requested under s. 227.49
, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48
. If a rehearing is requested under s. 227.49
, any party desiring judicial review shall serve and file a petition for review within 30 days after service of the order finally disposing of the application for rehearing, or within 30 days after the final disposition by operation of law of any such application for rehearing. The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency.
If the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides, except that if the petitioner is an agency, the proceedings shall be in the circuit court for the county where the respondent resides and except as provided in ss. 77.59 (6) (b)
, 182.70 (6)
and 182.71 (5) (g)
. The proceedings shall be in the circuit court for Dane county if the petitioner is a nonresident. If all parties stipulate and the court to which the parties desire to transfer the proceedings agrees, the proceedings may be held in the county designated by the parties. If 2 or more petitions for review of the same decision are filed in different counties, the circuit judge for the county in which a petition for review of the decision was first filed shall determine the venue for judicial review of the decision, and shall order transfer or consolidation where appropriate.
The petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds specified in s. 227.57
upon which petitioner contends that the decision should be reversed or modified. The petition may be amended, by leave of court, though the time for serving the same has expired. The petition shall be entitled in the name of the person serving it as petitioner and the name of the agency whose decision is sought to be reviewed as respondent, except that in petitions for review of decisions of the following agencies, the latter agency specified shall be the named respondent:
The tax appeals commission, the department of revenue.
The banking review board or the consumer credit review board, the division of banking.
The credit union review board, the office of credit unions.
The savings and loan review board, the division of savings and loan, except if the petitioner is the division of savings and loan, the prevailing parties before the savings and loan review board shall be the named respondents.
The savings bank review board, the division of savings and loan, except if the petitioner is the division of savings and loan, the prevailing parties before the savings bank review board shall be the named respondents.
A copy of the petition shall be served personally or by certified mail or, when service is timely admitted in writing, by first class mail, not later than 30 days after the institution of the proceeding, upon each party who appeared before the agency in the proceeding in which the decision sought to be reviewed was made or upon the party's attorney of record. A court may not dismiss the proceeding for review solely because of a failure to serve a copy of the petition upon a party or the party's attorney of record unless the petitioner fails to serve a person listed as a party for purposes of review in the agency's decision under s. 227.47
or the person's attorney of record.
The agency (except in the case of the tax appeals commission and the banking review board, the consumer credit review board, the credit union review board, the savings and loan review board and the savings bank review board) and all parties to the proceeding before it, shall have the right to participate in the proceedings for review. The court may permit other interested persons to intervene. Any person petitioning the court to intervene shall serve a copy of the petition on each party who appeared before the agency and any additional parties to the judicial review at least 5 days prior to the date set for hearing on the petition.
Every person served with the petition for review as provided in this section and who desires to participate in the proceedings for review thereby instituted shall serve upon the petitioner, within 20 days after service of the petition upon such person, a notice of appearance clearly stating the person's position with reference to each material allegation in the petition and to the affirmance, vacation or modification of the order or decision under review. Such notice, other than by the named respondent, shall also be served on the named respondent and the attorney general, and shall be filed, together with proof of required service thereof, with the clerk of the reviewing court within 10 days after such service. Service of all subsequent papers or notices in such proceeding need be made only upon the petitioner and such other persons as have served and filed the notice as provided in this subsection or have been permitted to intervene in said proceeding, as parties thereto, by order of the reviewing court.
The circuit court has no jurisdiction of an appeal from the tax appeals commission where the petition for review was served only on the department of revenue and not on the commission within the allowed 30 days. Brachtl v. Dept. of Revenue, 48 W (2d) 184, 179 NW (2d) 921.
Service on the department of a notice of appeal by ordinary mail, when received in time and not promptly objected to is good service. Service on a staff member of the department is sufficient if in the past that individual has represented himself as agent and as attorney for the department. Hamilton v. ILHR Dept. 56 W (2d) 673, 203 NW (2d) 7.
An appeal will not lie from an order denying a petition to reopen an earlier PSC order where no appeal was taken from the order or the order denying rehearing within 30 days. Town of Caledonia v. Public Service Comm. 56 W (2d) 720, 202 NW (2d) 912.
Failure to strictly comply with the caption requirements of (1) does not divest a court of jurisdiction if all other jurisdictional requirements are met. Evans v. Dept. of Local Affairs & Development, 62 W (2d) 622, 215 NW (2d) 408.
Where the taxpayer failed to serve a copy of his petition for review of a decision and order of the tax appeals commission upon the department of revenue within 30 days, the circuit court had no jurisdiction. Cudahy v. Dept. of Revenue, 66 W (2d) 253, 224 NW (2d) 570.
The implied authority of the PSC under various provisions of ch. 196, to insure that future supplies of natural gas will remain as reasonably adequate and sufficient as practicable indicates a legally recognized interest of the environmental group members living in the area affected by the commission order in the future adequacy of their service which is sufficient to provide standing if the facts alleged in the petition are true to challenge the commission's failure to consider conservation alternatives to the proposed priority system. Wisconsin's Environmental Decade, Inc. v. PSC, 69 W (2d) 1, 230 NW (2d) 243.
County has standing to challenge validity of rule not adopted in conformity with ss. 227.02 through 227.025, 1983 stats. Dane County v. H&SS Dept. 79 W (2d) 323, 255 NW (2d) 539.
"Parties" under sub. (1) (c), 1975 stats., are those persons affirmatively demonstrating active interest in the proceedings; PSC must identify parties. Wis. Environmental Decade v. Public Service Comm. 84 W (2d) 504, 267 NW (2d) 609 (1978).
Ch. 801 is inapplicable to judicial review proceedings. Omernick v. DNR, 94 W (2d) 309, 287 NW (2d) 841 (Ct. App. 1979).
Service on department rather than on specific division within department was sufficient notice under this section. Sunnyview Village v. Adm. Dept. 104 W (2d) 396, 311 NW (2d) 632 (1981).
Where petitioners lacked standing to seek review and where intervenors filed after time limit in sub. (1), intervenors could not continue to press claim. Fox v. DHSS, 112 W (2d) 514, 334 NW (2d) 532 (1983).
See note to s. 1.11, citing Milwaukee Brewers v. DH&SS, 130 W (2d) 56, 387 NW (2d) 245 (1986).
Two-part test for determining whether party has standing under sub. (1) discussed. Waste Management of Wisconsin v. DNR, 144 W (2d) 499, 424 NW (2d) 685 (1988).
County has standing to bring petition for review because petition initiates special proceeding rather than action. Richland County v. DH&SS, 146 W (2d) 271, 430 NW (2d) 374 (Ct. App. 1988).
Delivery of a petition to an agency attorney did not meet the requirements for service under sub. (1) (a) 1. Weisensel v. DHSS, 179 W (2d) 637, 508 NW (2d) 33 (Ct. App. 1993).
Time provisions under sub. (2) are mandatory. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
Stay of proceedings.
The institution of the proceeding for review shall not stay enforcement of the agency decision. The reviewing court may order a stay upon such terms as it deems proper, except as otherwise provided in ss. 196.43
History: 1983 a. 27
; 1985 a. 182
; Stats. 1985 s. 227.54; 1987 a. 5
Record on review.
Within 30 days after service of the petition for review upon the agency, or within such further time as the court may allow, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings in which the decision under review was made, including all pleadings, notices, testimony, exhibits, findings, decisions, orders and exceptions, therein; but by stipulation of all parties to the review proceedings the record may be shortened by eliminating any portion thereof. Any party, other than the agency, refusing to stipulate to limit the record may be taxed by the court for the additional costs. The record may be typewritten or printed. The exhibits may be typewritten, photostated or otherwise reproduced, or, upon motion of any party, or by order of the court, the original exhibits shall accompany the record. The court may require or permit subsequent corrections or additions to the record when deemed desirable.
History: 1985 a. 182
; Stats. 1985 s. 227.55.
Time provisions under this section are mandatory. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
Additional evidence; trial; motion to dismiss; amending petition. 227.56(1)(1)
If before the date set for trial, application is made to the circuit court for leave to present additional evidence on the issues in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the agency upon such terms as the court may deem proper. The agency may modify its findings and decision by reason of the additional evidence and shall file with the reviewing court the additional evidence together with any modified or new findings or decision.
Proceedings for review of administrative agency decisions as provided in this chapter may be brought on for trial or hearing at any time upon not less than 10 days' notice given after the expiration of the time for service of the notices provided in s. 227.53 (2)
Within 20 days after the time specified in s. 227.53
for filing notices of appearance in any proceeding for review, any respondent who has served such notice may move to dismiss the petition as filed upon the ground that such petition, upon its face, does not state facts sufficient to show that the petitioner named therein is a person aggrieved by the decision sought to be reviewed. Upon the hearing of such motion the court may grant the petitioner leave to amend the petition if the amendment as proposed shall have been served upon all respondents prior to such hearing. If so amended the court may consider and pass upon the validity of the amended petition without further or other motion to dismiss the same by any respondent.
History: 1975 c. 414
; 1985 a. 182
; Stats. 1985 s. 227.56.
See note to 111.39, citing Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
A court may not find facts under (1); the court may only receive evidence to determine whether to remand to the agency for further fact finding. State Public Intervenor v. DNR, 171 W (2d) 243, 490 NW (2d) 770 (Ct. App. 1992).
Scope of review. 227.57(1)(1)
The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, testimony thereon may be taken in the court and, if leave is granted to take such testimony, depositions and written interrogatories may be taken prior to the date set for hearing as provided in ch. 804
if proper cause is shown therefor.
Unless the court finds a ground for setting aside, modifying, remanding or ordering agency action or ancillary relief under a specified provision of this section, it shall affirm the agency's action.
The court shall separately treat disputed issues of agency procedure, interpretations of law, determinations of fact or policy within the agency's exercise of delegated discretion.
The court shall remand the case to the agency for further action if it finds that either the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure or a failure to follow prescribed procedure.
The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.
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. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.
If the agency's action depends on facts determined without a hearing, the court shall set aside, modify or order agency action if the facts compel a particular action as a matter of law, or it may remand the case to the agency for further examination and action within the agency's responsibility.
The court shall reverse or remand the case to the agency if it finds that the agency's exercise of discretion is outside the range of discretion delegated to the agency by law; is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.
The court's decision shall provide whatever relief is appropriate irrespective of the original form of the petition. If the court sets aside agency action or remands the case to the agency for further proceedings, it may make such interlocutory order as it finds necessary to preserve the interests of any party and the public pending further proceedings or agency action.
Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. The right of the appellant to challenge the constitutionality of any act or of its application to the appellant shall not be foreclosed or impaired by the fact that the appellant has applied for or holds a license, permit or privilege under such act.
History: 1975 c. 94
; 1975 c. 414
; 1979 c. 208
; 1985 a. 182
; Stats. 1985 s. 227.57.
Finding of fact is supported under (6) if reasonable minds could arrive at the same conclusion. Westring v. James, 71 W (2d) 462, 238 NW (2d) 695.
Reviewing court, in dealing with determination or judgment which administrative agency is alone authorized to make, must judge propriety of action solely by grounds invoked by agency with sufficient clarity. Stas v. Milw. County Civil Service Comm. 75 W (2d) 465, 249 NW (2d) 764.
See note to 30.12, citing Kosmatka v. DNR, 77 W (2d) 558, 253 NW (2d) 887.
Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wis. Environmental Decade v. Public Service Comm. 79 W (2d) 161, 255 NW (2d) 917.
"Discretion" means process of reasoning, not decision-making, based on facts in record or reasonably inferred from record, and conclusion based on logical rationale founded on proper legal standards. Reidinger v. Optometry Examining Board, 81 W (2d) 292, 260 NW (2d) 270.
See note to 220.035, citing State ex rel. 1st Nat. Bank v. M & I Peoples Bk. 82 W (2d) 529, 263 NW (2d) 196.
See note to 1.11, citing Wis. Environmental Decade v. Public Service Comm. 98 W (2d) 682, 298 NW (2d) 205 (Ct. App. 1980).
See note to 628.34, citing Aetna Life Ins. Co. v. Mitchell, 101 W (2d) 90, 303 NW (2d) 639 (1981).
See note to 806.07, citing Charter Mfg. v. Milw. River Restoration, 102 W (2d) 521, 307 NW (2d) 322 (Ct. App. 1981).
Party cannot recover attorney's fees against state under (9). Administrative judge should have been disqualified due to compelling appearance of impropriety. Guthrie v. Wis. Employment Relations Comm. 107 W (2d) 306, 320 NW (2d) 213 (Ct. App. 1982), aff'd. 111 W (2d) 447, 331 NW (2d) 331 (1983).
Commission's change of accounting treatment for recovery of utility expenditures was arbitrary and capricious. Public Ser. Corp. v. Public Serv. Comm. 109 W (2d) 256, 325 NW (2d) 867 (1982).
WERC did not abuse discretion by finding no community of interest between professional teachers and student interns. Unit fragmentation under 111.70 (4) (d) 2. a discussed. Arrowhead United Teachers v. ERC, 116 W (2d) 580, 342 NW (2d) 709 (1984).
Sub. (7) grants trial court broad authority to remand matter to agency for further action where no hearing has been held and no particular result is compelled as matter of law. R. W. Docks & Slips v. DNR, 145 W (2d) 854, 429 NW (2d) 86 (Ct. App. 1988).
On review, there are three levels of deference which may be given to an administrative agency's conclusions of law and statutory interpretations, depending on the agency's experience, technical competence and knowledge in regard to the question presented. Kelley Co. v. Marquardt, 172 W (2d) 234, 493 NW (2d) 68 (1992).
Statutes enabling rule promulgation are strictly construed to preclude the exercise of a power not expressly granted. Whether an agency exceeded its authority in promulgating a rule is reviewed de novo by a reviewing court. State Public Intervenor v. DNR, 177 W (2d) 666, 503 NW (2d) 305 (Ct. App. 1993).
Agency jurisdiction is a legal issue reviewed de novo by a reviewing court. An agency's decision on the scope of its own power is not binding on the court. Loomis v. Wisconsin Personnel Commission, 179 W (2d) 25, 505 NW (2d) 462 (Ct. App. 1993).
Default judgment is incompatible with the scope of review of a ch. 227 proceeding. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
A circuit judge has inherent authority to order briefs in a case under this section and to dismiss the action if a party fails to file a brief as ordered. Lee v. LIRC, 202 W (2d) 559, 550 NW (2d) 534 (Ct. App. 1996).
See note to Art. I, sec. 1, citing Hortonville Dist. v. Hortonville Ed. Asso. 426 US 482.
If court affirms agency decision under (2), unsuccessful claimant may not bring claim to federal court. Young v. Michigan Wisconsin Pipe Line Co. 569 F Supp. 741 (1983).
The scope of judicial review in Wisconsin. Hewitt, 1973 WLR 554.
The standard of review of administrative rules in Wisconsin. 1982 WLR 691.
Any party, including the agency, may secure a review of the final judgment of the circuit court by appeal to the court of appeals within the time period specified in s. 808.04 (1)
History: 1977 c. 187
; 1983 a. 219
; 1985 a. 182
; Stats. 1985 s. 227.58.
Judicial Council Note, 1983: This section is amended by repealing the appeal deadline of 30 days from notice of entry of judgment for greater uniformity. An appeal must be initiated within the time specified in s. 808.04 (1), stats. This section is further amended to eliminate the superfluous provision that the appeal is taken in the manner of other civil appeals. Civil appeal procedures are governed by chs. 808 and 809. [Bill 151-S]
Court of appeals had no power to remand case under 806.07 (1) (b) or (h); ch. 227 cannot be supplemented by statutory remedies pertaining to civil procedure. Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
Certification of certain cases from the circuit court of Dane county to other circuits.
Any action or proceeding for the review of any order of an administrative officer, commission, department or other administrative tribunal of the state required by law to be instituted in or taken to the circuit court of Dane county except an action or appeal for the review of any order of the department of industry, labor and job development or the department of commerce or findings and orders of the labor and industry review commission which is instituted or taken and is not called for trial or hearing within 6 months after the proceeding or action is instituted, and the trial or hearing of which is not continued by stipulation of the parties or by order of the court for cause shown, shall on the application of either party on 5 days' written notice to the other be certified and transmitted for trial to the circuit court of the county of the residence or principal place of business of the plaintiff or petitioner, where the action or proceeding shall be given preference. Unless written objection is filed within the 5-day period, the order certifying and transmitting the proceeding shall be entered without hearing. The plaintiff or petitioner shall pay to the clerk of the circuit court of Dane county a fee of $2 for transmitting the record.
History: 1977 c. 29
; 1983 a. 219
; 1985 a. 182
; Stats. 1985 s. 227.59; 1995 a. 27
, 9116 (5)
, 9130 (4)
Jurisdiction of state courts to determine validity of laws when attacked in federal court and to stay enforcement.
Whenever a suit praying for an interlocutory injunction shall have been begun in a federal district court to restrain any department, board, commission or officer from enforcing or administering any statute or administrative order of this state, or to set aside or enjoin the suit or administrative order, the department, board, commission or officer, or the attorney general, may bring a suit to enforce the statute or order in the circuit court of Dane county at any time before the hearing on the application for an interlocutory injunction in the suit in the federal court. Jurisdiction is hereby conferred upon the circuit court of Dane county and on the court of appeals, on appeal, to entertain the suit with the powers granted in this section. The circuit court shall, when the suit is brought, grant a stay of proceedings by any state department, board, commission or officer under the statute or order pending the determination of the suit in the courts of the state. The circuit court of Dane county upon the bringing of the suit therein shall at once cause a notice thereof, together with a copy of the stay order by it granted, to be sent to the federal district court in which the action was originally begun. An appeal shall be taken within the time period specified in s. 808.04 (2)
. The appeal shall be given preference.
History: 1977 c. 187
; 1983 a. 219
; 1985 a. 182
; Stats. 1985 s. 227.60.
Judicial Council Note, 1983: This section is amended to replace the appeal deadline of 10 days after termination of the suit by the time provisions of s. 808.04 (2), for greater uniformity. Section 808.04 (2) provides that an appeal must be initiated within 15 days of entry of judgment or order appealed from. The provision requiring preferential court treatment is harmonized and standardized with similar provisions in the statutes. [Bill 151-S]