The tax appeals commission, the department of revenue.
The credit union review board, the office of credit unions.
The savings institutions review board, the division of banking, except if the petitioner is the division of banking, the prevailing parties before the savings institutions 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.
Except in the case of the tax appeals commission, the banking review board, the credit union review board, and the savings institutions review board, the agency 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 had no jurisdiction of an appeal from the tax appeals commission when the petition for review was served only on the department of revenue and not on the commission within the allowed 30 days. Brachtl v. DOR, 48 Wis. 2d 184
, 179 N.W.2d 921
Service on the department of a notice of appeal by ordinary mail, when received in time and not promptly objected to was good service. Service on a staff member of the department was sufficient when in the past that individual had represented himself as an agent and as an attorney for the department. Hamilton v. DILHR, 56 Wis. 2d 673
, 203 N.W.2d 7
An appeal will not lie from an order denying a petition to reopen an earlier PSC order when no appeal was taken from the order or the order denying rehearing within 30 days. Town of Caledonia v. PSC, 56 Wis. 2d 720
, 202 N.W.2d 912
A failure to strictly comply with the caption requirements of sub. (1) does not divest a court of jurisdiction if all other jurisdictional requirements are met. Evans v. DLAD, 62 Wis. 2d 622
, 215 N.W.2d 408
When 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. DOR, 66 Wis. 2d 253
, 224 N.W.2d 570
The implied authority of the PSC under various provisions of ch. 196 to ensure that future supplies of natural gas remain as reasonably adequate and sufficient as practicable indicated a legally recognized interest of environmental group members living in the area affected by the commission order in the future adequacy of their service that was sufficient to provide standing to challenge the commission's failure to consider conservation alternatives to the proposed priority system. Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1
, 230 N.W.2d 243
A county had standing to challenge the validity of a rule not adopted in conformity with ss. 227.02 through 227.025, 1983 stats. Dane County v. DHSS, 79 Wis. 2d 323
, 255 N.W.2d 539
“Parties" under sub. (1) (c), 1975 stats., are those persons affirmatively demonstrating active interest in the proceedings. It was incumbent upon the PSC to identify those parties. Wisconsin's Environmental Decade, Inc. v. PSC, 84 Wis. 2d 504
, 267 N.W.2d 609
Chapter 801 is inapplicable to judicial review proceedings. Omernick v. DNR, 94 Wis. 2d 309
, 287 N.W.2d 841
(Ct. App. 1979).
Service on a department rather than on a specific division within the department was sufficient notice under this section. Sunnyview Village v. DOA, 104 Wis. 2d 396
, 311 N.W.2d 632
When the petitioners lacked standing to seek review and the intervenors filed after the time limit in sub. (1), the intervenors could not continue to press their claim. Fox v. DHSS, 112 Wis. 2d 514
, 334 N.W.2d 532
The test for determining whether a party has standing is: 1) whether the agency decision directly causes injury to the interest of the petitioner; and 2) whether the asserted interest is recognized by law. Waste Management of Wisconsin v. DNR, 144 Wis. 2d 499
, 424 N.W.2d 685
Although it may not be able to sue the state, a county has standing to bring a petition for review because the petition initiates a special proceeding rather than an action. Richland County v. DHSS, 146 Wis. 2d 271
, 430 N.W.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 Wis. 2d 637
, 508 N.W.2d 33
(Ct. App. 1993).
The time provisions under sub. (2) are mandatory. Wagner v. State Medical Examining Board, 181 Wis. 2d 633
, 511 N.W.2d 874
In the case of a ch. 227 petition for review, the petition commences the action rather than continuing it. As an attorney is not authorized to accept the service of process commencing an action, service on the attorney general rather than the agency is insufficient to commence an action for review. Gimenez v. State Medical Examining Board, 229 Wis. 2d 312
, 600 N.W.2d 28
(Ct. App. 1999), 98-1367
Because parties to an agency proceeding have the right to participate in judicial review proceedings under the first sentence in sub. (1) (d), those parties are not part of the group referred to as “other interested persons" in the second sentence and therefore are not entitled to petition for permissive intervention. Under sub. (1) (d) the petition to intervene must be served on all parties to the judicial review at least 5 days before the hearing on the intervention petition. Citizens' Utility Board v. PSC, 2003 WI App 206
, 267 Wis. 2d 414
, 671 N.W.2d 11
As a general matter, sub. (1) (a) 2. affords a petitioner 30 days from the date of service of the original adverse agency decision to file a petition for judicial review. The extended deadline for filing a petition for judicial review applies only when rehearing is requested under s. 227.49. Section 227.49 (1) specifies that the petition for rehearing must be filed, meaning physically delivered to and received by the agency, within 20 days of the initial decision. If a petition for rehearing is not filed within the 20-day time limit, a rehearing is not properly requested under s. 227.49 and the petitioner does not acquire the benefit of the extended deadline for petitioning for judicial review. Currier v. Wisconsin Department of Revenue, 2006 WI App 12
, 288 Wis. 2d 693
, 709 N.W.2d 520
Although sub. (1) did not clearly prescribe which governmental entity must be named and served as respondent in this case, DHA's notice gave clear instructions and clarified any ambiguity in sub. (1), making the petitioner's failure to follow the notice unreasonable and dismissal of the petition for judicial review proper. All Star Rent A Car, Inc. v. Department of Transportation, 2006 WI 85
, 292 Wis. 2d 615
, 716 N.W.2d 506
Sub. (1) (b) does not authorize a circuit court to dismiss a petition for judicial review because it does not show the nature of the petitioner's interest or state a ground for relief under s. 227.57 unless the petitioner has notice of the possibility of dismissal and a reasonable opportunity to request leave to amend the petition. The claimed deficiency must be raised by motion of the respondent and may not be raised by the court sua sponte. Jackson v. LIRC, 2006 WI App 97
, 293 Wis. 2d 332
, 715 N.W.2d 654
The 30-day limitation period under sub. (1) (a) 2. is triggered only by s. 227.48 service of the decision upon the parties, which occurs on the date the decision is mailed to the parties, not the various dates of receipt. Once the time limitation is triggered, strict compliance is required. Wisconsin Power & Light Co. v. PSC, 2006 WI App 221
, 296 Wis. 2d 705
, 725 N.W. 2d 423
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
, and 448.02 (9)
Record on review. 227.55(1)(1)
Within 30 days after service of the petition for review upon the agency, or within such further time as the court allows, the agency in possession of the record for the decision under review shall transmit to the reviewing court the original or a certified copy of the entire record, including all pleadings, notices, testimony, exhibits, findings, decisions, orders, and exceptions, except that by stipulation of all parties to the review proceedings the record may be shortened by eliminating any portion of the record. Any party, other than the agency that is a party, refusing to stipulate to limit the record may be taxed by the court for the additional costs. Except as provided in sub. (2)
, the record may be typewritten or printed. The exhibits may be typewritten, photocopied, 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.
In the case of a record under sub. (1)
that is in the possession of the division of hearings and appeals, if any portion of the record is in the form of an audio or video recording, the division may transmit to the reviewing court a copy of that recording in lieu of preparing a transcript, unless the court requests a transcript.
History: 1985 a. 182
; Stats. 1985 s. 227.55; 2017 a. 59
Time provisions under this section are mandatory. Wagner v. State Medical Examining Board, 181 Wis. 2d 633
, 511 N.W.2d 874
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.
Section 111.36 (3m) (c) [now s. 111.39 (5) (c)] shows a policy against opening Fair Employment proceedings more than one year after the commission's final order; a court should not use ch. 227 or s. 752.35 to circumvent that policy. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462
, 283 N.W.2d 603
(Ct. App. 1979).
A court may not find facts under sub. (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 Wis. 2d 243
, 490 N.W.2d 770
(Ct. App. 1992).
Substantial evidence is that quantity and quality of evidence that a reasonable person could accept as adequate to support a conclusion. Written hearsay medical reports are admissible as evidence. Properly admitted evidence may not necessarily constitute substantial evidence. Uncorroborated written hearsay medical reports alone that were controverted by in-person testimony did not constitute substantial evidence to support a board's decision. Gehin v. Wisconsin Group Insurance Board, 2005 WI 16
, 278 Wis. 2d 111
, 692 N.W.2d 572
Because sub. (3) specifically describes in the last sentence the circumstances under which a court may dismiss an amended petition without a motion from the respondent, the only reasonable construction of sub. (3) is that the court may not dismiss the original petition without a timely motion from the respondent asserting that the petition does not allege facts showing that the petitioner is aggrieved. The circuit court does not have the authority to dismiss the petition sua sponte on the ground that it does not allege facts showing that the petitioner was aggrieved. Jackson v. LIRC, 2006 WI App 97
, 293 Wis. 2d 332
, 715 N.W.2d 654
Hearsay in Administrative Hearings. Maloney. Wis. Law. Sept. 2005.
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.
Subject to sub. (11)
, 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.
Upon review of an agency action or decision affecting a property owner's use of the property owner's property, the court shall accord no deference to the agency's interpretation of law if the agency action or decision restricts the property owner's free use of the property owner's property.
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.
Under sub. (6), a finding of fact is supported if reasonable minds could arrive at the same conclusion. Westring v. James, 71 Wis. 2d 462
, 238 N.W.2d 695
A reviewing court, in dealing with a determination or judgment that an administrative agency is alone authorized to make, must judge the propriety of the action solely on grounds invoked by the agency with sufficient clarity. Stas v. Milwaukee County Civil Service Commission 75 Wis. 2d 465
, 249 N.W.2d 764
When a DNR decision under s. 30.12 prohibited a structure and the riparian owner did not seek review under s. 227.20 [now 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that structure was a permitted “pier" under s. 30.13. Kosmatka v. DNR, 77 Wis. 2d 558
, 253 N.W.2d 887
Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wis. Environmental Decade v. PSC, 79 Wis. 2d 161
, 255 N.W.2d 917
“Discretion" means a process of reasoning, not decision-making, based on facts in the record or reasonably inferred from the record, and a conclusion based on a logical rationale founded on proper legal standards. Reidinger v. Optometry Examining Board, 81 Wis. 2d 292
, 260 N.W.2d 270
An agency determination that an environmental impact statement was adequately prepared is reviewed under s. 227.20 [now s. 227.57]. Wisconsin's Environmental Decade, Inc. v. PSC, 98 Wis. 2d 682
, 298 N.W.2d 205
(Ct. App. 1980).
Relief from a judgment entered in a ch. 227 review may not be granted under s. 806.07. Charter Manufacturing Co. v. Milwaukee River Restoration Council, Inc. 102 Wis. 2d 521
, 307 N.W.2d 322
(Ct. App. 1981).
A party cannot recover attorney's fees against the state under sub. (9). An administrative judge should have been disqualified due to a compelling appearance of impropriety. Guthrie v. WERC, 107 Wis. 2d 306
, 320 N.W.2d 213
(Ct. App. 1982).
The commission's change of accounting treatment for recovery of utility expenditures was arbitrary and capricious. Wisconsin Public Service Corp. v. PSC, 109 Wis. 2d 256
, 325 N.W.2d 867
Sub. (7) grants the trial court broad authority to remand a matter to an agency for further action when no hearing has been held and no particular result is compelled as a matter of law. R. W. Docks & Slips v. DNR, 145 Wis. 2d 854
, 429 N.W.2d 86
(Ct. App. 1988).
Sub. (4) does not require a higher standard of fairness than the constitutional requirement of due process. The requirement of fairness merely insures that the procedure before the administrative agency will meet the requirements of due process. Due process in an administrative proceeding is really a question of the presence or absence of fair play. Bracegirdle v. Board of Nursing, 159 Wis. 2d 402
, 464 N.W.2d 111
(Ct. App. 1990).
On review, there are three levels of deference that 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; great weight, due weight, and de novo. Kelley Company, Inc. v. Marquardt, 172 Wis. 2d 234
, 493 N.W.2d 68
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 Wis. 2d 666
, 503 N.W.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 Wis. 2d 25
, 505 N.W.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 Wis. 2d 633
, 511 N.W.2d 874
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 Wis. 2d 558
, 550 N.W.2d 534
(Ct. App. 1996), 95-0797
De novo review of an administrative decision is appropriate only if the issue is one of first impression or the agency's position has been so inconsistent as to be of no guidance. An agency need not have considered identical or even substantially similar facts before, only the particular statutory scheme. ITW Deltar v. LIRC, 226 Wis. 2d 11
, 593 N.W.2d 908
(Ct. App. 1999), 98-2912
Emphasizing the uniqueness of certain facts presented to an administrative agency does not assure de novo review of the agency's decision. The test is not whether the agency has ruled on the precise, or even substantially similar, facts. The key is the agency's experience in administering a particular statutory scheme. Mattila v. Employee Trust Funds Board, 2001 WI App 79
, 243 Wis. 2d 90
, 626 N.W.2d 33
The test under sub. (6) is whether, taking into account all of the evidence in the record, reasonable minds could arrive at the same conclusion as the agency. The findings of an administrative agency do not need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. If the factual findings of the administrative body are reasonable, they will be upheld. Kitten v. DWD, 2002 WI 54
, 252 Wis. 2d 561
, 644 N.W.2d 649
Ordinarily a reviewing court will not consider issues beyond those properly raised before the administrative agency, and a failure to raise an issue generally constitutes a waiver of the right to raise the issue. However, the rule is one of administration, and the reviewing court has the power to decide issues that were not raised before the agency if all the necessary facts are of record and the issue is a legal one of great importance. Bunker v. LIRC, 2002 WI App 216
, 257 Wis. 2d. 255, 650 N.W.2d 864
An agency's interpretation of its own rules is controlling unless it is plainly erroneous or inconsistent with the language of the rule. Agency interpretations of it's own rules generally receive only one level of deference from appellate courts, called either controlling weight or great weight. Despite the difference in terminology, the deference given is similar to the great weight standard applied to statutory interpretations. Both turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Baer v. Wisconsin DNR, 2006 WI App 225
, 297 Wis. 2d 232
, 724 N.W.2d 638
Controlling weight deference is similar to great weight deference, despite the difference in terminology, because both standards turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Controlling weight describes a level of deference given to an agency's interpretation and application of administrative rules and regulations, while great weight deference describes a level of deference given to an agency's interpretation and application of a statute. DaimlerChrysler v. LIRC, 2007 WI 15
, 299 Wis. 2d 1
, 727 N.W.2d 311
The deference framework applicable to an agency's interpretation of a statute was inapposite in this case in which the court was required to determine whether an executive agency's review of a circuit court's decision comported with the separation of powers under the Wisconsin Constitution. Gabler v. Crime Victims Rights Board, 2017 WI 67
, 376 Wis. 2d 147
, 897 N.W.2d 384
Due process does not disqualify an agency as a decision-maker merely because of familiarity with the facts of the case. Hortonville Dist. v. Hortonville Ed. Asso. 426 U.S. 482
If a court affirms an agency decision under sub. (2), an unsuccessful claimant may not bring a claim to federal court. Young v. Michigan Wisconsin Pipe Line Co. 569 F. Supp. 741
The Standards of Review for Agency Interpretation of Statutes in Wisconsin. Massa. 83 MLR 597 (2000).
The scope of judicial review in Wisconsin. Hewitt, 1973 WLR 554.