227.26 227.26 Legislative review after promulgation; joint committee for review of administrative rules.
227.26(1) (1) Definition. In this section, "rule" means all or any part of a rule which has taken effect as provided under s. 227.22 (2).
227.26(2) (2)Review of rules by committee.
227.26(2)(a)(a) Purpose. 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.
227.26(2)(b) (b) 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.
227.26(2)(c) (c) Public hearings. 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.
227.26(2)(d) (d) 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).
227.26(2)(e) (e) Notice. 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.
227.26(2)(f) (f) 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.
227.26(2)(g) (g) 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:
227.26(2)(g)1. 1. An explanation of the issue regarding the suspended rule and the factual situation out of which the issue arose.
227.26(2)(g)2. 2. Arguments presented for and against the suspension action at the public hearing held under par. (c).
227.26(2)(g)3. 3. A statement of the action taken by the committee regarding the rule.
227.26(2)(g)4. 4. A statement and analysis of the grounds upon which the committee relies for suspending the rule.
227.26(2)(h) (h) Legislative procedure. 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.
227.26(2)(i) (i) 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.
227.26(2)(j) (j) 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).
227.26(2)(k) (k) Biennial report. 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.
227.26(2)(L) (L) Emergency rules. 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.
227.26(3) (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.
227.26 History History: 1985 a. 182 ss. 1, 3, 50; 1987 a. 186; 2005 a. 249.
227.26 Annotation 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 (1992).
227.26 Annotation A collective bargaining agreement between the regents and the teaching assistants association is not subject to review by the committee. 59 Atty. Gen. 200.
227.26 Annotation 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.
227.26 Annotation 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.
227.26 Annotation Legislative committee review of administrative rules in Wisconsin. Bunn and Gallagher. 1977 WLR 935.
227.265 227.265 Repeal or modification of rules. If a bill to repeal or modify a rule is enacted, the procedures under ss. 227.114 to 227.21 and 227.26 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.
227.265 History History: 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363.
227.27 227.27 Construction of administrative rules.
227.27(1) (1) In construing rules, ss. 990.001, 990.01, 990.03 (1), (2) and (4), 990.04 and 990.06 apply in the same manner in which they apply to statutes, except that ss. 990.001 and 990.01 do not apply if the construction would produce a result that is inconsistent with the manifest intent of the agency.
227.27(2) (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.
227.27 History History: 1983 a. 544; 1985 a. 182 ss. 22, 55 (2), (3); Stats. 1985 s. 227.27; 2005 a. 249; 2007 a. 20; 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363.
227.30 227.30 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.
227.30(2) (2) When reviewing the report, the joint committee for review of administrative rules shall consider all of the following:
227.30(2)(a) (a) The continued need for the rule or guideline.
227.30(2)(b) (b) The nature of the complaints and comments received from the public regarding the rule or guideline.
227.30(2)(c) (c) The complexity of the rule or guideline.
227.30(2)(d) (d) The extent to which the rule or guideline overlaps, duplicates, or conflicts with federal regulations, other state rules, or local ordinances.
227.30(2)(e) (e) The length of time since the rule or guideline has been evaluated.
227.30(2)(f) (f) 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.
227.30(3) (3) 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.
227.30 History History: 2003 a. 145; 2005 a. 249.
subch. III of ch. 227 SUBCHAPTER III
ADMINISTRATIVE ACTIONS AND JUDICIAL REVIEW
Subch. III of ch. 227 Cross-reference Cross-reference: See also ch. NR 2, Wis. adm. code.
227.40 227.40 Declaratory judgment proceedings.
227.40(1) (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.
227.40(2) (2) The validity of a rule may be determined in any of the following judicial proceedings when material therein:
227.40(2)(a) (a) 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.
227.40(2)(b) (b) Criminal prosecutions.
227.40(2)(c) (c) Proceedings or prosecutions for violations of county or municipal ordinances.
227.40(2)(d) (d) Habeas corpus proceedings relating to criminal prosecution.
227.40(2)(e) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 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.
227.40(2)(f) (f) Proceedings under s. 227.114 (6m).
227.40(3) (3) 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) hereof.
227.40(3)(a) (a) 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.
227.40(3)(b) (b) 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.
227.40(3)(c) (c) 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.
227.40(4) (4)
227.40(4)(a)(a) 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.
227.40(4)(b) (b) 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.
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(6) (6) 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).
Effective date note NOTE: Sub. (6) is shown as amended eff. 1-1-15 by 2013 Wis. Act 20. Prior to 1-1-15 it reads:
Effective date text (6) Upon entry of a final order in a declaratory judgment action under sub. (1), the court shall notify the legislative reference bureau of the court's determination as to the validity or invalidity of the rule, and the legislative reference bureau shall publish a notice of that determination in the Wisconsin administrative register under s. 35.93 (4) and insert an annotation of that determination in the Wisconsin administrative code under s. 13.92 (4) (a).
227.40 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 29, 449; 1981 c. 278 s. 6; 1983 a. 90; 1983 a. 191 s. 6; 1985 a. 182 ss. 26, 55 (1), 57; Stats. 1985 s. 227.40; 1987 a. 403 s. 256; 1989 a. 31; 1991 a. 316; 1995 a. 27; 1999 a. 82; 2003 a. 145; 2005 a. 249; 2011 a. 21; 2013 a. 20; s. 35.17 corrections in (2) (a) to (d).
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 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 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, ___ Wis. 2d ___, ___ N.W.2d ___, 13-2013.
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) Except as provided in sub. (5), 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) Except as provided in sub. (5) (b), 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) Except as provided in sub. (5) (c), 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(5) (5)
227.41(5)(a)(a) The department of revenue shall, on petition by any interested person, or any group or association of interested persons, 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. The department of revenue may issue a declaratory ruling on the facts contained in the petition. If the department of revenue does not deny the petition or issue a declaratory ruling on the facts contained in the petition, the department of revenue shall hold a hearing, as provided under s. 227.44, and shall afford all interested parties an opportunity to participate in the hearing. A declaratory ruling shall bind the department and all parties to the proceedings on the statement of facts contained in the ruling, unless it is altered or set aside by the tax appeals commission or a court or the applicable rule or statute is repealed or materially amended. A ruling, including the denial of the petition, shall be subject to review by the tax appeals commission as provided in ch. 73.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)