LRB-1062/2
TKK:kjf:ph
2011 - 2012 LEGISLATURE
August 18, 2011 - Introduced by Representatives Mursau, Honadel, Spanbauer,
Wynn, Knilans, Jacque, Brooks, Kuglitsch
and Stroebel, cosponsored by
Senators Grothman, Taylor, Lasee and Holperin. Referred to Committee on
Judiciary and Ethics.
AB223,1,4 1An Act to repeal 227.485 (1), 227.485 (2) (b), (c) and (d), 227.485 (7), 814.245 (1),
2814.245 (2) (a), (b) and (c) and 814.245 (8); and to amend 106.20 (1) (f), 227.485
3(3), 227.485 (6) and 814.245 (3) of the statutes; relating to: awarding costs in
4administrative agency actions.
Analysis by the Legislative Reference Bureau
Under current law, if an individual, small nonprofit corporation, or a small
business is the prevailing party in an administrative agency contested case, in an
action brought by an agency, or in a judicial review proceeding under s. 227.485 (6),
that prevailing party is entitled to an award of costs unless the court finds the agency
was substantially justified in taking its position or if such an award would be unjust
under the circumstances. If the prevailing party is an individual, that party is not
entitled to recover costs if the party's federal adjusted gross income was $150,000 or
more in each of the three years prior to the commencement of the action. Current
law also requires hearing examiners and courts in this state to be guided by federal
case law as of November 20, 1985, when interpreting these provisions governing
costs to prevailing parties.
This bill eliminates financial and entity size limitations for prevailing parties
to be eligible to receive costs in administrative agency actions, allowing an award of
costs to any trust or person, other than the state, that is a prevailing party unless
the court finds the agency was substantially justified in taking its position or if such
an award would be unjust under the circumstances. This bill also eliminates the
requirement that hearing examiners and courts rely on federal case law as of

November 20, 1985, when interpreting these provisions governing costs to prevailing
parties.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB223, s. 1 1Section 1. 106.20 (1) (f) of the statutes is amended to read:
AB223,2,52 106.20 (1) (f) "Small business" has the meaning given in s. 227.485 (2) (c) means
3a business entity, including its affiliates, which is independently owned and
4operated, and which employs 25 or fewer full-time employees or which has gross
5annual sales of less than $5,000,000
.
AB223, s. 2 6Section 2. 227.485 (1) of the statutes is repealed.
AB223, s. 3 7Section 3. 227.485 (2) (b), (c) and (d) of the statutes are repealed.
AB223, s. 4 8Section 4. 227.485 (3) of the statutes is amended to read:
AB223,2,159 227.485 (3) In any contested case in which an individual, a small nonprofit
10corporation or a small business
a trust or a person other than the state is the
11prevailing party and submits a motion for costs under this section, the hearing
12examiner shall award the prevailing party the costs incurred in connection with the
13contested case, unless the hearing examiner finds that the state agency which is the
14losing party was substantially justified in taking its position or that special
15circumstances exist that would make the award unjust.
AB223, s. 5 16Section 5. 227.485 (6) of the statutes is amended to read:
AB223,3,317 227.485 (6) A final decision under sub. (5) is subject to judicial review under
18s. 227.52. If the individual, small nonprofit corporation or small business a trust or
19a person other than the state
is the prevailing party in the proceeding for judicial
20review, the court shall make the findings applicable under s. 814.245 and, if

1appropriate, award costs related to that proceeding under s. 814.245, regardless of
2who petitions for judicial review. In addition, the court on review may modify the
3order for payment of costs in the final decision under sub. (5).
AB223, s. 6 4Section 6. 227.485 (7) of the statutes is repealed.
AB223, s. 7 5Section 7. 814.245 (1) of the statutes is repealed.
AB223, s. 8 6Section 8. 814.245 (2) (a), (b) and (c) of the statutes are repealed.
AB223, s. 9 7Section 9. 814.245 (3) of the statutes is amended to read:
AB223,3,148 814.245 (3) Except as provided in s. 814.25, if an individual, a small nonprofit
9corporation or a small business
a trust or a person other than the state is the
10prevailing party in any action by a state agency or in any proceeding for judicial
11review under s. 227.485 (6) and submits a motion for costs under this section, the
12court shall award costs to the prevailing party, unless the court finds that the state
13agency was substantially justified in taking its position or that special circumstances
14exist that would make the award unjust.
AB223, s. 10 15Section 10. 814.245 (8) of the statutes is repealed.
AB223, s. 11 16Section 11. Initial applicability.
AB223,3,2117 (1) The treatment of sections 106.20 (1) (f), 227.485 (1), (3), and (6), and 814.245
18(3) of the statutes and the repeal of sections 227.485 (2) (b), (c), and (d), and (7) and
19814.245 (1), (2) (a), (b), and (c), and (8) of the statutes first applies to administrative
20agency contested cases, actions by a state agency, and judicial review proceedings
21under s. 227.485 (6), commenced on the effective date of this subsection.
AB223, s. 12 22Section 12. Effective date.
AB223,3,2423 (1) This act takes effect on the first day of the 4th month beginning after
24publication.
AB223,3,2525 (End)
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