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), 106.04, 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(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 History History: Sup. Ct. Order, 67 W (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.
227.40 Annotation See note to 227.53, citing Dane County v. H&SS Dept. 79 W (2d) 323, 255 NW (2d) 539.
227.40 Annotation Plaintiff could not bring declaratory judgment action under (1) since it could contest validity of rule in action brought against plaintiff under (2). Phillips Plastics Corp. v. Natural Resources Dept. 98 W (2d) 524, 297 NW (2d) 69 (Ct. App. 1980).
227.40 Annotation See note to 628.34, citing Aetna Life Ins. Co. v. Mitchell, 101 W (2d) 90, 303 NW (2d) 639 (1981).
227.40 Annotation See note to 147.20, citing Sewerage Commission of Wisconsin v. DNR, 102 W (2d) 613, 307 NW (2d) 189 (1981).
227.40 Annotation Pleading requirements for challenging administrative rules established. Record for judicial review and scope of judicial review discussed. Liberty Homes, Inc. v. DILHR, 136 W (2d) 368, 401 NW (2d) 805 (1987).
227.40 Annotation Failure to comply with this section prevented trial court from acquiring jurisdiction. Harris v. Reivitz, 142 W (2d) 82, 417 NW (2d) 50 (Ct. App. 1987).
227.40 Annotation Under (5) plaintiff must serve JCRAR within 60 days of filing pursuant to 893.02. Richards v. Young, 150 W (2d) 549, 441 NW (2d) 742 (1989).
227.40 Annotation In a conflict between a statute and a rule, the statute controls. Debeck v. DNR, 172 W (2d) 382, 493 NW (2d) 234 (Ct. App. 1992).
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 Doctrine of res judicata does not apply to proceedings of administrative agency, but this section requires internal consistency within proceeding by binding agency within that proceeding to its own declaratory ruling. Board of Regents v. Wisconsin Pers. Comm. 103 W (2d) 545, 309 NW (2d) 366 (Ct. App. 1981).
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(1)(d) (d) There is a dispute of material fact.
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 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.
227.42 Annotation Person who satisfies conditions under (1) is entitled to hearing whether or not person has "other right provided by law". Milwaukee Met. Sewerage Dist. v. DNR, 126 W (2d) 63, 375 NW (2d) 649 (1985).
227.42 Annotation See note to 1.11, citing Milwaukee Brewers v. DHSS, 130 W (2d) 56, 387 NW (2d) 245 (1986).
227.42 Annotation Discussion of right to contested case hearing pursuant to (1). Metro. Greyhound Mgt. Corp. v. Racing Bd., 157 W (2d) 678, 460 NW (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 Dist. v. DNR, 182 W (2d) 500, 513 NW (2d) 703 (Ct. App. 1994).
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)(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 and family services and that is not conducted by the secretary of health and family 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 industry, labor and job development under subch. III of ch. 49 and that is not conducted by the secretary of industry, labor and job development.
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(2) (2)
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 and family 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 and family services is notified that a hearing on the matter is required.
227.43(2)(d) (d) The department of industry, labor and job development 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 industry, labor and job development is notified that a hearing on the matter is required.
227.43(3) (3)
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) (q).
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 and family 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 industry, labor and job development 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(4) (4)
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 and family 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 industry, labor and job development 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(5) (5) 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 fee schedule under sub. (3) (b).
227.43 History History: 1977 c. 418; 1981 c. 20 s. 2202 (1) (b); 1983 a. 27; 1985 a. 182 ss. 16 to 18, 29, 31; Stats. 1985 s. 227.43; 1993 a. 16; 1995 a. 370.
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) (2) The notice shall include:
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(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(2s) (2s) The personnel commission may order consolidation of any case with any other case involving the same parties or one or more issues arising substantially out of the same circumstances or closely related circumstances.
227.44(3) (3) Opportunity shall be afforded all parties to present evidence and to rebut or offer countervailing evidence.
227.44(4) (4)
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)1. 1. The clarification of issues.
227.44(4)(a)2. 2. The necessity or desirability of amendments to the pleadings.
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This is an archival version of the Wis. Stats. database for 1995. See Are the Statutes on this Website Official?