227.40(4)(c)
(c) 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.
227.40(5)
(5) 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.
227.40 Annotation
The plaintiff could not bring a declaratory judgment action under sub. (1) since it could contest the validity of a rule in an action brought against the plaintiff under sub. (2). Phillips Plastics Corp. v. DNR,
98 Wis. 2d 524,
297 N.W.2d 69 (Ct. App. 1980).
227.40 Annotation
Pleading requirements for challenging administrative rules are established. The record for judicial review and the scope of judicial review are discussed. Liberty Homes, Inc. v. DILHR,
136 Wis. 2d 368,
401 N.W.2d 805 (1987).
227.40 Annotation
A failure to comply with this section prevented the trial court from acquiring jurisdiction. Harris v. Reivitz,
142 Wis. 2d 82,
417 N.W.2d 50 (Ct. App. 1987).
227.40 Annotation
Under sub. (5), the plaintiff must serve JCRAR within 60 days of filing, pursuant to s. 893.02. Richards v. Young,
150 Wis. 2d 549,
441 N.W.2d 742 (1989).
227.40 AnnotationIn 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).
227.40 Annotation
This section encompasses policies or other statements, standards, or orders that meet the definition of a rule under s. 227.01 (13) but have not been promulgated as rules under s. 227.10. Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213,
247 Wis. 2d 589,
634 N.W.2d 593,
00-3162.
227.40 Annotation
The trial court erred by denying a motion to change venue to Dane County when the motion asserted that a department of corrections system was a rule, although it was never promulgated as a rule, and therefore, the "rule" was invalid. Johnson v. Berge, 2003 WI App 51,
260 Wis. 2d 758,
659 N.W.2d 418,
02-0911.
227.40 Annotation
Although administrative agencies do not have the power to declare statutes unconstitutional, and the lack of authority has been a basis for not applying the exhaustion exhaustion of administrative remedies doctrine, if the agency has the authority to provide the relief requested without invalidating the rule, a constitutional basis for a claim does not in itself support an exception to the rule. Metz v. Veterinary Examining Board, 2007 WI App 220,
305 Wis. 2d 788,
741 N.W.2d 244,
06-1611.
227.40 Annotation
How to review an administrative rule. Levine. WBB Oct. 1983.
227.40 Annotation
The standard of review of administrative rules in Wisconsin. Zabrowski. 1982 WLR 691.
227.41
227.41
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.
227.41(2)
(2) Petitions for declaratory rulings shall conform to the following requirements:
227.41(2)(a)
(a) 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.
227.41(2)(b)
(b) 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.
227.41(2)(c)
(c) 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.
227.41(3)
(3) The petition shall be filed with the administrative head of the agency or with a member of the agency's policy board.
227.41(4)
(4) 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.
227.41 History
History: 1985 a. 182 s.
27; Stats. 1985 s. 227.41;
1991 a. 316;
1993 a. 112.
227.41 Annotation
Res judicata does not apply to administrative agency proceedings, but this section requires internal consistency within a proceeding by binding the agency within that proceeding to its own declaratory ruling. Board of Regents v. Wisconsin Personnel Commission,
103 Wis. 2d 545,
309 N.W.2d 366 (Ct. App. 1981).
227.41 Annotation
This section does not provide a method for 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 to challenge the department of corrections' dismissal of their complaint under the inmate complaint review system. Aello v. Litscher,
104 F. Supp. 2d 1124 (2000).
227.42
227.42
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:
227.42(1)(a)
(a) A substantial interest of the person is injured in fact or threatened with injury by agency action or inaction;
227.42(1)(b)
(b) There is no evidence of legislative intent that the interest is not to be protected;
227.42(1)(c)
(c) 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
227.42(2)
(2) 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.
227.42(3)
(3) 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.
227.42(4)
(4) This section does not apply if a hearing on the matter was conducted as a part of a hearing under
s. 293.43.
227.42(5)
(5) 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,
291.25,
291.29 or
291.31, any decision by the department of natural resources relating to the environmental impact of a proposed action under
ch. 289 or
291 or
ss. 292.31 and
292.35, or any part of the process of negotiation and arbitration under
s. 289.33.
227.42(6)
(6) This section does not apply to a decision issued or a hearing conducted under
s. 291.87.
227.42(7)
(7) This section does not apply to a decision denying enrollment or discontinuing coverage under
s. 49.67, to a decision about benefits covered under
s. 49.67, or to a payment made under
s. 49.67.
227.42 History
History: 1975 c. 414;
1977 c. 418; Stats. 1977 s. 227.064;
1979 c. 221;
1981 c. 374;
1983 a. 298;
1985 a. 182 s.
28; Stats. 1985 s. 227.42;
1995 a. 227;
2009 a. 219.
227.42 Annotation
A person who satisfies the conditions under sub. (1) is entitled to a hearing whether or not that person has any "other right provided by law." Milwaukee Metropolitan Sewerage District v. DNR,
126 Wis. 2d 63,
375 N.W.2d 649 (1985).
227.42 Annotation
The right to a contested case hearing under sub. (1) is discussed. Metropolitan Greyhound Management Corp. v. Wisconsin Racing Board,
157 Wis. 2d 678,
460 N.W.2d 802 (Ct. App. 1990).
227.42 Annotation
Sub. (1) does not grant the right to a contested case hearing regarding the need for an environmental impact statement. North Lake Management District v. DNR,
182 Wis. 2d 500,
513 N.W.2d 703 (Ct. App. 1994).
227.42 Annotation
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),
98-1432.
227.42 Annotation
When an ALJ's decision did not provide notice of the 30-day time period under s. 227.53 (1) (a) 2. for petitioning for judicial review in a contested case, the 6-month default limitation adopted under Hedrich v. Board of Regents, 2001 WI App. 228, applied. Habermehl Electric, Inc. v. DOT, 2003 WI App 39,
260 Wis. 2d 466,
659 N.W.2d 463,
02-1573.
227.42 Annotation
Milwaukee Metropolitan Sewerage District v. DNR: Expanding the scope of state agency actions covered by contested case hearings. 1986 WLR 963.
227.43
227.43
Division of hearings and appeals. 227.43(1)
(1) The administrator of the division of hearings and appeals in the department of administration shall:
227.43(1)(a)
(a) Serve as the appointing authority of all hearing examiners under
s. 230.06.
227.43(1)(b)
(b) 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.
227.43(1)(bg)
(bg) Assign a hearing examiner to preside over any hearing or review under
ss. 84.30 (18),
84.305,
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) and
(b),
114.134 (4) (b),
114.135 (9),
114.20 (19),
175.05 (4) (b),
194.145 (1),
194.46,
218.0114 (7) (d) and
(12) (b),
218.0116 (2),
(4),
(7) (a),
(8) (a) and
(10),
218.0131 (3),
218.11 (7) (a) and
(b),
218.22 (4) (a) and
(b),
218.32 (4) (a) and
(b),
218.41 (4),
218.51 (5) (a) and
(b),
341.09 (2m) (d),
342.26,
343.69 and
348.25 (9).
227.43(1)(br)
(br) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of transportation and which is not conducted by the secretary of transportation.
227.43(1)(bu)
(bu) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of health services and that is not conducted by the secretary of health services.
227.43(1)(by)
(by) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of children and families under
ch. 48 or
subch. III of ch. 49 and that is not conducted by the secretary of children and families.
227.43(1)(c)
(c) Supervise hearing examiners in the conduct of the hearing and the rendering of a decision, if a decision is required.
227.43(1)(d)
(d) Promulgate rules relating to the exercise of the administrator's and the division's powers and duties under this section.
227.43(1g)
(1g) The administrator of the division of hearings and appeals shall establish a system for assigning hearing examiners to preside over any hearing under this section. The system shall ensure, to the extent practicable, that hearing examiners are assigned to different subjects on a rotating basis. The system may include the establishment of pools of examiners responsible for certain subjects.
227.43(1m)
(1m) Upon the request of an agency that is not prohibited from contracting with a 3rd party for contested case hearing services, the administrator of the division of hearings and appeals in the department of administration may contract with the agency to provide the contested case hearing services and may assign a hearing examiner to preside over any hearing performed under such a contract.
227.43(2)(a)(a) The department of natural resources shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (b) after the department of natural resources is notified that a hearing on the matter is required.
227.43(2)(b)
(b) The department of transportation shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (br) after the department of transportation is notified that a hearing on the matter is required.
227.43(2)(c)
(c) The department of health services shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (bu) after the department of health services is notified that a hearing on the matter is required.
227.43(2)(d)
(d) The department of children and families shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under
sub. (1) (by) after the department of children and families is notified that a hearing on the matter is required.
227.43(3)(a)(a) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of natural resources by a hearing examiner under this section. The fee shall cover the total cost of the services less any costs covered by the appropriation under
s. 20.505 (4) (f).
227.43(3)(b)
(b) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of transportation by a hearing examiner under this section. The fee shall cover the total cost of the services less any costs covered by the appropriation under
s. 20.505 (4) (f).
227.43(3)(c)
(c) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of health services by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.
227.43(3)(d)
(d) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of children and families by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.
227.43(3)(e)
(e) The administrator of the division of hearings and appeals may set the fees to be charged for any services contracted for under
sub. (1m).
227.43(4)(a)(a) The department of natural resources shall pay all costs of the services of a hearing examiner assigned to the department under
sub. (1) (b), according to the fees set under
sub. (3) (a).
227.43(4)(b)
(b) The department of transportation shall pay all costs of the services of a hearing examiner assigned under
sub. (1) (bg) or assigned to the department under
sub. (1) (br), according to the fees set under
sub. (3) (b).
227.43(4)(c)
(c) The department of health services shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1) (bu), according to the fees set under
sub. (3) (c).
227.43(4)(d)
(d) The department of children and families shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1) (by), according to the fees set under
sub. (3) (d).
227.43(4)(e)
(e) The agency contracting out for contested case hearing services under
sub. (1m) shall pay all costs of the services of a hearing examiner, including support services, assigned under
sub. (1m), according to the fees set under
sub. (3) (e).
227.43 Cross-reference
Cross-reference: See also
HA, Wis. adm. code.
227.44
227.44
Contested cases; notice; parties; hearing; records. 227.44(1)(1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Except in the case of an emergency, reasonable notice shall consist of mailing notice to known interested parties at least 10 days prior to the hearing.
227.44(2)(a)
(a) A statement of the time, place, and nature of the hearing, including whether the case is a class 1, 2 or 3 proceeding.
227.44(2)(b)
(b) A statement of the legal authority and jurisdiction under which the hearing is to be held, and, in the case of a class 2 proceeding, a reference to the particular statutes and rules involved.
227.44(2)(c)
(c) A short and plain statement of the matters asserted. If the matters cannot be stated with specificity at the time the notice is served, the notice may be limited to a statement of the issues involved.
227.44(2)(d)
(d) If the subject of the hearing is a decision of the department of natural resources or the department of transportation, the name and title of the person who will conduct the hearing.
227.44(2m)
(2m) Any person whose substantial interest may be affected by the decision following the hearing shall, upon the person's request, be admitted as a party.
227.44(3)
(3) Opportunity shall be afforded all parties to present evidence and to rebut or offer countervailing evidence.
227.44(4)(a)(a) In any action to be set for hearing, the agency or hearing examiner may direct the parties to appear before it for a conference to consider:
227.44(4)(a)2.
2. The necessity or desirability of amendments to the pleadings.
227.44(4)(a)3.
3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof.
