An agency may request an advance commitment as to the title or numbering of a proposed rule by submitting a copy of the proposed rule indicating the requested title and numbering to the revisor prior to filing. As soon as possible after that, the revisor shall either approve the request or inform the agency of any change necessary to preserve uniformity in the code. If the title or numbering of a rule is revised, the revisor shall verify that a certified copy of the revised version has been filed with the secretary of state.
The revisor may, prior to publication, edit the analysis of a proposed rule and any other material submitted for publication in the code and register, may refer to the fact that those materials are on file or may eliminate them and any reference to them in the code and register if he or she believes they do not appreciably add to an understanding of the rule. The revisor shall submit the edited version of any material to the agency for its comments prior to publication.
History: 1985 a. 182
Legislative review after promulgation; joint committee for review of administrative rules. 227.26(1)
In this section, "rule" means all or any part of a rule which has taken effect as provided under s. 227.22 (2)
The joint committee for review of administrative rules shall promote adequate and proper rules, statements of general policy and interpretations of statutes by agencies and an understanding upon the part of the public respecting the rules, statements and interpretations.
Requirement for promulgation.
If the committee determines that a statement of policy or an interpretation of a statute meets the definition of a rule, it may direct the agency to promulgate the statement or interpretation as an emergency rule under s. 227.24 (1) (a)
within 30 days after the committee's action.
The committee shall hold a public hearing to investigate any complaint with respect to a rule if it considers the complaint meritorious and worthy of attention.
Temporary suspension of rules.
The committee may suspend any rule by a majority vote of a quorum of the committee. A rule may be suspended only on the basis of testimony in relation to that rule received at a public hearing and only for one or more of the reasons specified under s. 227.19 (4) (d)
When the committee suspends a rule, it shall publish a class 1 notice, under ch. 985
, of the suspension in the official state newspaper and give any other notice it considers appropriate.
Introduction of bills.
If any rule is suspended, the committee shall, within 30 days after the suspension, introduce in each house of the legislature, for consideration at any regular session, a bill to repeal the suspended rule.
Committee report required.
No bill required by this subsection may be considered by the legislature until the committee submits a written report on the proposed bill. The report shall be printed as an appendix to the bills introduced under par. (f)
. The report shall contain all of the following:
An explanation of the issue regarding the suspended rule and the factual situation out of which the issue arose.
Arguments presented for and against the suspension action at the public hearing held under par. (c)
A statement of the action taken by the committee regarding the rule.
A statement and analysis of the grounds upon which the committee relies for suspending the rule.
Upon the introduction of bills by the committee under this subsection, the presiding officer of each house of the legislature shall refer the bill introduced in that house to the appropriate committee, to the calendar scheduling committee or directly to the calendar. If the committee to which a bill is referred makes no report within 30 days after referral, the bill shall be considered reported without recommendation. No later than 40 days after referral, the bills shall be placed on the calendar of each house of the legislature according to its rule governing the placement of proposals on the calendar. A bill introduced under this subsection which is received in the 2nd house shall be referred, reported and placed on the calendar in the same manner as an original bill introduced under this subsection.
Timely introduction of bills; effect.
If both bills required under this subsection are defeated, or fail to be enacted in any other manner, the rule remains in effect and the committee may not suspend it again. If either bill becomes law, the rule is repealed and may not be promulgated again unless a subsequent law specifically authorizes such action. This paragraph applies to bills that are introduced on or after the day specified under s. 13.02 (1)
for the legislature to convene and before February 1 of an even-numbered year.
Late introduction of bills; effect.
If the bills required under par. (f)
are introduced on or after February 1 of an even-numbered year and before the next regular session of the legislature commences, as provided under s. 13.02 (2)
, unless either house adversely disposes of either bill, the committee shall reintroduce the bills on the first day of the next regular session of the legislature. If the committee is required to reintroduce the bills, the rule to which the bills pertain remains suspended except as provided in par. (i)
. If either house adversely disposes of either bill, the rule remains in effect and the committee may not suspend it again. In this paragraph, "adversely disposes of" has the meaning given under s. 227.19 (5) (g)
The committee shall submit a biennial report of its activities to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2)
, and to the governor and include recommendations.
(3) Public hearings by state agencies.
By a majority vote of a quorum of the committee, the committee may require any agency to hold a public hearing in respect to recommendations made under sub. (2)
and to report its action to the committee within the time specified by the committee. The agency shall publish a class 1 notice, under ch. 985
, of the hearing in the official state newspaper and give any other notice which the committee directs. The hearing shall be conducted in accordance with s. 227.18
and shall be held not more than 60 days after receipt of notice of the requirement.
History: 1985 a. 182
; 1987 a. 186
Rule suspension under sub. (2) (d) does not violate separation of powers doctrine. Martinez v. DILHR, 165 Wis. 2d 687
, 478 N.W.2d 582
Legislative committee review of administrative rules in Wisconsin. Bunn and Gallagher. 1977 WLR 935.
Construction of administrative rules. 227.27(2)
The code shall be prima facie evidence in all courts and proceedings as provided by s. 889.01
, but this does not preclude reference to or, in case of a discrepancy, control over a rule filed with the revisor and the secretary of state, and the certified copy of a rule shall also and in the same degree be prima facie evidence in all courts and proceedings.
History: 1983 a. 544
; 1985 a. 182
, 55 (2)
, (3); Stats. 1985 s. 227.27.
ADMINISTRATIVE ACTIONS AND JUDICIAL REVIEW
Declaratory judgment proceedings. 227.40(1)
Except as provided in sub. (2)
, the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant. The summons in such action shall be served as provided in s. 801.11 (3)
and by delivering a copy to such officer or to the secretary or clerk of the agency where composed of more than one person or to any member of such agency. The court shall render a declaratory judgment in such action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.
The validity of a rule may be determined in any of the following judicial proceedings when material therein:
Any civil proceeding by the state or any officer or agency thereof to enforce a statute or to recover thereunder, provided such proceeding is not based upon a matter as to which the opposing party is accorded an administrative review or a judicial review by other provisions of the statutes and such opposing party has failed to exercise such right to review so accorded;
Proceedings or prosecutions for violations of county or municipal ordinances;
Habeas corpus proceedings relating to criminal prosecution;
Proceedings under s. 66.191
, 1981 stats., or s. 40.65 (2)
, 303.07 (7)
or ss. 227.52
or under ch. 102
for review of decisions and orders of administrative agencies if the validity of the rule involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.
In any judicial proceeding other than one set out above, in which the invalidity of a rule is material to the cause of action or any defense thereto, the assertion of such invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such rule in that proceeding. The party so asserting the invalidity of such rule shall, within 30 days after the service of the pleading in which the party sets forth such invalidity, apply to the court in which such proceedings are had for an order suspending the trial of said proceeding until after a determination of the validity of said rule in an action for declaratory judgment under sub. (1)
Upon the hearing of such application if the court is satisfied that the validity of such rule is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such rule. If the court shall find that the asserted invalidity of a rule is not material to the case, an order shall be entered denying the application for stay.
Upon the entry of a final order in said declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule is asserted.
Failure to set forth invalidity of a rule in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such order of the court or to prosecute such declaratory judgment action without undue delay shall preclude such party from asserting or maintaining such rule is invalid.
In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.
Notwithstanding s. 227.54
, in any proceeding under this section for judicial review of a rule, a court may not restrain, enjoin or suspend enforcement of the rule during the course of the proceeding on the basis of the alleged failure of the agency promulgating the rule to comply with s. 227.114
Notwithstanding par. (a)
, if a court finds that an agency did not adequately comply with s. 227.114
, the court may not declare the rule invalid on that basis but shall order the agency to comply with that section and to propose any amendments to the rule that are necessary within a time specified by the court. Unless the legislature acts under s. 227.26 (2)
to suspend the rule, the rule remains in effect while the agency complies with the order.
The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.
Plaintiff could not bring declaratory judgment action under (1) since it could contest validity of rule in action brought against plaintiff under (2). Phillips Plastics Corp. v. Natural Resources Dept. 98 Wis. 2d 524
, 297 N.W.2d 69
(Ct. App. 1980).
Pleading requirements for challenging administrative rules established. Record for judicial review and scope of judicial review discussed. Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368
, 401 N.W.2d 805
Failure to comply with this section prevented trial court from acquiring jurisdiction. Harris v. Reivitz, 142 Wis. 2d 82
, 417 N.W.2d 50
(Ct. App. 1987).
Under (5) plaintiff must serve JCRAR within 60 days of filing pursuant to 893.02. Richards v. Young, 150 Wis. 2d 549
, 441 N.W.2d 742
In a conflict between a statute and a rule, the statute controls. Debeck v. DNR, 172 Wis. 2d 382
, 493 N.W.2d 234
(Ct. App. 1992).
How to review an administrative rule. Levine. WBB Oct. 1983.
The standard of review of administrative rules in Wisconsin. Zabrowski. 1982 WLR 691.
Declaratory rulings. 227.41(1)(1)
Any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions.
Petitions for declaratory rulings shall conform to the following requirements:
The petition shall be in writing and its caption shall include the name of the agency and a reference to the nature of the petition.
The petition shall contain a reference to the rule or statute with respect to which the declaratory ruling is requested, a concise statement of facts describing the situation as to which the declaratory ruling is requested, the reasons for the requested ruling, and the names and addresses of persons other than the petitioner, if any, upon whom it is sought to make the declaratory ruling binding.
The petition shall be signed by one or more persons, with each signer's address set forth opposite the signer's name, and shall be verified by at least one of the signers. If a person signs on behalf of a corporation, limited liability company or association, that fact also shall be indicated opposite that person's name.
The petition shall be filed with the administrative head of the agency or with a member of the agency's policy board.
Within a reasonable time after receipt of a petition pursuant to this section, an agency shall either deny the petition in writing or schedule the matter for hearing. If the agency denies the petition, it shall promptly notify the person who filed the petition of its decision, including a brief statement of the reasons therefor.
History: 1985 a. 182
; Stats. 1985 s. 227.41; 1991 a. 316
; 1993 a. 112
Doctrine of res judicata does not apply to proceedings of administrative agency, but this section requires internal consistency within proceeding by binding agency within that proceeding to its own declaratory ruling. Board of Regents v. Wisconsin Pers. Comm. 103 Wis. 2d 545
, 309 N.W.2d 366
(Ct. App. 1981).
This section does not provide a method of review of a determination already made by the agency, but only "a method for requesting an agency to make a determination. Therefore, this section could not be used by prisoners 227.41 to challenge the Department of Corrections' dismissalof their complaint under the inmate complaint review system. Aello v. Litscher, 104 F. Supp. 2d 1124
Right to hearing. 227.42(1)(1)
In addition to any other right provided by law, any person filing a written request with an agency for hearing shall have the right to a hearing which shall be treated as a contested case if:
A substantial interest of the person is injured in fact or threatened with injury by agency action or inaction;
There is no evidence of legislative intent that the interest is not to be protected;
The injury to the person requesting a hearing is different in kind or degree from injury to the general public caused by the agency action or inaction; and
Any denial of a request for a hearing shall be in writing, shall state the reasons for denial, and is an order reviewable under this chapter. If the agency does not enter an order disposing of the request for hearing within 20 days from the date of filing, the request shall be deemed denied as of the end of the 20-day period.
This section does not apply to rule-making proceedings or rehearings, or to actions where hearings at the discretion of the agency are expressly authorized by law.
This section does not apply if a hearing on the matter was conducted as a part of a hearing under s. 293.43
Except as provided under s. 289.27 (1)
, this section does not apply to any part of the process for approving a feasibility report, plan of operation or license under subch. III of ch. 289
or s. 291.23
, any decision by the department of natural resources relating to the environmental impact of a proposed action under ch. 289
or ss. 292.31
, or any part of the process of negotiation and arbitration under s. 289.33
This section does not apply to a decision issued or a hearing conducted under s. 291.87
History: 1975 c. 414
; 1977 c. 418
; Stats. 1977 s. 227.064; 1979 c. 221
; 1981 c. 374
; 1983 a. 298
; 1985 a. 182
; Stats. 1985 s. 227.42; 1995 a. 227
Person who satisfies conditions under (1) is entitled to hearing whether or not person has "other right provided by law". Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis. 2d 63
, 375 N.W.2d 649
Discussion of right to contested case hearing pursuant to (1). Metro. Greyhound Mgt. Corp. v. Racing Bd., 157 Wis. 2d 678
, 460 N.W.2d 802
(Ct. App. 1990).
Sub. (1) does not grant the right to a contested case hearing regarding the need for an environmental impact statement. North Lake Management Dist. v. DNR, 182 Wis. 2d 500
, 513 N.W.2d 703
(Ct. App. 1994).
Sub. (1) (d) provides authority for agencies to develop appropriate summary disposition procedures if there are no disputes of material fact. Balele v. Wisconsin Personnel Commission, 223 Wis. 2d 739
, 589 N.W.2d 418
(Ct. App. 1998).
Milwaukee Metropolitan Sewerage District v. DNR: Expanding the scope of state agency actions covered by contested case hearings. 1986 WLR 963.
Division of hearings and appeals. 227.43(1)
The administrator of the division of hearings and appeals in the department of administration shall:
Serve as the appointing authority of all hearing examiners under s. 230.06
Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of natural resources and which is not conducted by the secretary of natural resources.
Assign a hearing examiner to preside over any hearing or review under ss. 84.30 (18)
, 84.31 (6) (a)
, 85.013 (1)
, 86.073 (3)
, 86.16 (5)
, 86.195 (9) (b)
, 86.32 (1)
, 101.935 (2) (b)
, 101.951 (7) (a)
, 114.134 (4) (b)
, 114.135 (9)
, 114.20 (19)
, 175.05 (4) (b)
, 194.145 (1)
, 218.0114 (7) (d)
and (12) (b)
, 218.0116 (2)
, (7) (a)
, (8) (a)
, 218.0131 (3)
, 218.11 (7) (a)
, 218.22 (4) (a)
, 218.32 (4) (a)
, 218.41 (4)
, 218.51 (5) (a)
, 341.09 (2m) (d)
and 348.25 (9)