Effective date note
Sub. (4) is shown as amended eff. 9-1-17 by 2017 Wis. Act 57
. Prior to 9-1-17 it reads:
Effective date text
(4) Public hearing. Notwithstanding sub. (1) (a) and (b), an agency shall hold a public hearing within 45 days after it promulgates a rule under sub. (1). If within that 45-day period the agency submits to the legislative council staff under s. 227.15 a proposed rule corresponding to the rule under sub. (1), it shall hold a public hearing on both rules within 90 days after promulgation of the rule under sub. (1), or within 30 days after the agency receives the report on the proposed rule prepared by the legislative council under s. 227.15 (2), whichever occurs later.
The effectiveness of an emergency rule may not be extended beyond the initial effective period by simply refiling it. 62 Atty Gen. 305.
Legislative reference bureau. 227.25(1)
The legislative reference bureau shall, in cooperation with the legislative council staff under s. 227.15 (7)
, prepare a manual informing agencies about the form, style and placement of rules in the code.
The legislative reference bureau shall, upon request, furnish an agency with advice and assistance on the form and mechanics of rule drafting.
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 legislative reference bureau prior to filing. As soon as possible after that, the legislative reference bureau shall either approve the request or inform the agency of any change necessary to preserve uniformity in the code.
The legislative reference bureau 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 they do not appreciably add to an understanding of the rule. The legislative reference bureau shall submit the edited version of any material to the agency for its comments prior to publication.
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, meet and take executive action regarding the introduction, in each house of the legislature, of a bill to support the suspension. The committee shall introduce the bills within 5 working days after taking executive action in favor of introduction of the bills unless the bills cannot be introduced during this time period under the joint rules of the legislature.
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, or as soon thereafter as is possible if the legislature is not in a floorperiod 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)
, or if the bills cannot be introduced during this time period under the joint rules of the legislature, unless either house adversely disposes of either bill, the committee shall introduce the bills on the first day of the next regular session of the legislature. If the committee is required to introduce the bills on the first day of the next regular session, 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.
If the committee suspends an emergency rule under this section, the agency may not submit to the legislature under s. 227.19 (2)
the substance of the emergency rule as a proposed permanent rule during the time the emergency rule is suspended.
(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
; 2005 a. 249
Rule suspension under sub. (2) (d) does not violate the separation of powers doctrine. Martinez v. DILHR, 165 Wis. 2d 687
, 478 N.W.2d 582
A collective bargaining agreement between the regents and the teaching assistants association is not subject to review by the committee. 59 Atty. Gen. 200.
In giving notice of public hearings held under sub. (2), the committee should concurrently employ the various forms of notice available that best fit the particular circumstances. 62 Atty. Gen. 299.
If an administrative rule is properly adopted and is within the power of the legislature to delegate there is no material difference between it and a law. No law, including a valid rule can be revoked by a joint resolution of the legislature as such a resolution deprives the executive its power to veto an act of the legislature. 63 Atty. Gen. 159.
Legislative committee review of administrative rules in Wisconsin. Bunn and Gallagher. 1977 WLR 935.
Repeal or modification of rules.
If a bill to repeal or modify a rule is enacted, the procedures under ss. 227.114
do not apply. Instead, the legislative reference bureau shall publish the repeal or modification in the Wisconsin administrative code and register as required under s. 35.93
, and the repeal or modification shall take effect as provided in s. 227.22
History: 2013 a. 125
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 legislative reference bureau under s. 227.20
or modified under s. 227.265
, 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; 2005 a. 249
; 2007 a. 20
; 2013 a. 125
Review of administrative rules or guidelines. 227.30(1)(1)
The small business regulatory review board may review the rules and guidelines of any agency to determine whether any of those rules or guidelines place an unnecessary burden on the ability of small businesses, as defined in s. 227.114 (1)
, to conduct their affairs. If the board determines that a rule or guideline places an unnecessary burden on the ability of a small business to conduct its affairs, the board shall submit a report and recommendations regarding the rule or guideline to the joint committee for review of administrative rules and to the agency.
When reviewing the report, the joint committee for review of administrative rules shall consider all of the following:
The continued need for the rule or guideline.
The nature of the complaints and comments received from the public regarding the rule or guideline.
The extent to which the rule or guideline overlaps, duplicates, or conflicts with federal regulations, other state rules, or local ordinances.
The length of time since the rule or guideline has been evaluated.
The degree to which technology, economic conditions, or other factors have changed in the subject area affected by the rule or guideline since the rule or guideline was promulgated.
The joint committee for review of administrative rules may refer the report regarding the rule or guideline to the presiding officer of each house of the legislature for referral to a committee under s. 227.19 (2)
or may review the rule or guideline as provided under s. 227.26
History: 2003 a. 145
; 2005 a. 249
ADMINISTRATIVE ACTIONS AND JUDICIAL REVIEW
Subch. III of ch. 227 Cross-reference
See also ch. NR 2
, Wis. adm. code.
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 the rule brought in the circuit court for the county where the party asserting the invalidity of the rule resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose. The officer or other agency whose rule is involved shall be the party defendant. The summons in the action shall be served as provided in s. 801.11 (3)
and by delivering a copy to that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency or to any member of the agency. The court shall render a declaratory judgment in the 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.
Upon entry of a final order in a declaratory judgment action under sub. (1)
, the court shall send an electronic notice to the legislative reference bureau of the court's determination as to the validity or invalidity of the rule, in a format approved by the legislative reference bureau, and the legislative reference bureau shall publish a notice of that determination in the Wisconsin administrative register under s. 35.93 (2)
and insert an annotation of that determination in the Wisconsin administrative code under s. 13.92 (4) (a)
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).
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
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).
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
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).
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
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
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 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
A challenge to a policy on the basis that it is actually a rule is to be construed as a challenge to the validity of a rule, and the requirements of this section do apply. Because the challenge falls under this section, the petitioner was required to serve the Joint Committee for Review of Administrative Rules with a copy of her petition. Because she failed to do so, the court lacked competency to review the issue. Mata v. Department of Children and Families, 2014 WI App 69
, 354 Wis. 2d 486
, 849 N.W.2d 908
Even without the statutory presumption in s. 227.20 (3), the party challenging the validity of rules has the burden of proving the invalidity of the rules. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364 13-1407
How to review an administrative rule. Levine. WBB Oct. 1983.
The standard of review of administrative rules in Wisconsin. Zabrowski. 1982 WLR 691.