227.46 Annotation
Sub. (5) requires use of a hearing examiner if an examining board member participates in the decision to commence a proceeding against a licensee, but does not require such use if a board member is involved only in the investigation. 66 Atty. Gen. 52.
227.46 Annotation
Discussion of circumstances under which hearing examiner has power to entertain motion to dismiss proceedings. 68 Atty. Gen. 30.
227.46 Annotation
Witness subpoenaed under (1) must attend continued or postponed hearing and remain in attendance until excused. 68 Atty. Gen. 251.
227.47(1)(1) Except as provided in
sub. (2), every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under
s. 227.53. The agency shall by rule establish a procedure for determination of parties.
227.47(2)
(2) Except as otherwise provided in this subsection, a proposed or final decision of the personnel commission, hearing examiner or arbitrator concerning an appeal of the decision of the secretary of employment relations made under
s. 230.09 (2) (a) or
(d) shall not be accompanied by findings of fact or conclusions of law. If within 30 days after the commission issues a decision in such an appeal either party files a petition for judicial review of the decision under
s. 227.53 and files a written notice with the commission that the party has filed such a petition, the commission shall issue written findings of fact and conclusions of law within 90 days after receipt of the notice. The court shall stay the proceedings pending receipt of the findings and conclusions.
227.47 History
History: 1975 c. 414 s.
15;
1977 c. 418;
1979 c. 208;
1985 a. 182 ss.
33r,
57; Stats. 1985 s. 227.47;
1993 a. 16,
491.
227.47 Annotation
Although its procedures are not subject to ch. 227, the finding of the city of Milwaukee Board of Fire and Police Commissioners was insufficient in failing to specify what particular wrongful acts the officers performed or why those acts constituted conduct unbecoming an officer under the circumstances, and in failing to make separate findings as to each officer, because in making its determination the board is required to state specific findings of fact and conclusions of law in the manner required of state agencies under this section. State ex rel. Heffernan v. Board, 247 W 77, overruled. Edmonds v. Board of Fire & Police Commrs. 66 W (2d) 337, 224 NW (2d) 575.
227.48
227.48
Service of decision. 227.48(1)(1) Every decision when made, signed and filed, shall be served forthwith by personal delivery or mailing of a copy to each party to the proceedings or to the party's attorney of record.
227.48(2)
(2) Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under
s. 227.49 (1) for filing a petition for rehearing, under
s. 227.53 (1) (a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.
227.48 History
History: 1975 c. 94 s.
3;
1975 c. 414 ss.
13,
17; Stats. 1975 s. 227.11;
1981 c. 378;
1985 a. 182 ss.
33rm,
57; Stats. 1985 s. 227.48.
227.48 Annotation
Service of a decision is complete on the date of its mailing regardless of its receipt by the addressee. In re Proposed Incorporation of Pewaukee, 72 W (2d) 593, 241 NW (2d) 603.
227.485
227.485
Costs to certain prevailing parties. 227.485(1)
(1) The legislature intends that hearing examiners and courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act,
5 USC 504.
227.485(2)(a)
(a) "Hearing examiner" means the agency or hearing examiner conducting the hearing.
227.485(2)(c)
(c) "Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs fewer than 25 full-time employes or which has gross annual sales of less than $2,500,000.
227.485(2)(d)
(d) "Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employes.
227.485(2)(e)
(e) "State agency" does not include the public intervenor or citizens utility board.
227.485(2)(f)
(f) "Substantially justified" means having a reasonable basis in law and fact.
227.485(3)
(3) In any contested case in which an individual, a small nonprofit corporation or a small business is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
227.485(4)
(4) In determining the prevailing party in cases in which more than one issue is contested, the examiner shall take into account the relative importance of each issue. The examiner shall provide for partial awards of costs under this section based on determinations made under this subsection.
227.485(5)
(5) If the hearing examiner awards costs under
sub. (3), he or she shall determine the costs under this subsection, except as modified under
sub. (4). The decision on the merits of the case shall be placed in a proposed decision and submitted under
ss. 227.47 and
227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in
s. 814.245 (5) and include an order for payment of costs in the final decision.
227.485(6)
(6) A final decision under
sub. (5) is subject to judicial review under
s. 227.52. If the individual, small nonprofit corporation or small business is the prevailing party in the proceeding for judicial review, the court shall make the findings applicable under
s. 814.245 and, if appropriate, award costs related to that proceeding under
s. 814.245, regardless of who petitions for judicial review. In addition, the court on review may modify the order for payment of costs in the final decision under
sub. (5).
227.485(7)
(7) An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the case. This subsection applies whether the person files the tax return individually or in combination with a spouse.
227.485(8)
(8) If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under
s. 20.865 (1) (a),
(g) or
(q).
227.485(9)
(9) Each state agency that is ordered to pay costs under this section or that recovers costs under
sub. (10) shall submit a report annually, as soon as is practicable after June 30, to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under
s. 13.172 (3), the number, nature and amounts of the claims paid, the claims involved in the contested case in which the costs were incurred, the costs recovered under
sub. (10) and any other relevant information to aid the legislature in evaluating the effect of this section.
227.485(10)
(10) If the examiner finds that the motion under
sub. (3) is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the examiner must find one or more of the following:
227.485(10)(a)
(a) The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
227.485(10)(b)
(b) The party or the party's attorney knew, or should have known, that the motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
227.485 History
History: 1985 a. 52; Stats. 1985 s. 227.115;
1985 a. 182 ss.
33s,
57;
1985 a. 332 s.
253; Stats. 1985 s. 227.485;
1987 a. 186.
227.485 Annotation
Fact that government loses case does not justify automatic imposition of fees and costs; award depends upon whether government's position has arguable merit. Behnke v. DHSS, 146 W (2d) 178, 430 NW (2d) 600 (Ct. App. 1988).
227.49
227.49
Petitions for rehearing in contested cases. 227.49(1)(1) A petition for rehearing shall not be a prerequisite for appeal or review. Any person aggrieved by a final order may, within 20 days after service of the order, file a written petition for rehearing which shall specify in detail the grounds for the relief sought and supporting authorities. An agency may order a rehearing on its own motion within 20 days after service of a final order. This subsection does not apply to
s. 17.025 (3) (e). No agency is required to conduct more than one rehearing based on a petition for rehearing filed under this subsection in any contested case.
227.49(2)
(2) The filing of a petition for rehearing shall not suspend or delay the effective date of the order, and the order shall take effect on the date fixed by the agency and shall continue in effect unless the petition is granted or until the order is superseded, modified, or set aside as provided by law.
227.49(3)
(3) Rehearing will be granted only on the basis of:
227.49(3)(c)
(c) The discovery of new evidence sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence.
227.49(4)
(4) Copies of petitions for rehearing shall be served on all parties of record. Parties may file replies to the petition.
227.49(5)
(5) The agency may order a rehearing or enter an order with reference to the petition without a hearing, and shall dispose of the petition within 30 days after it is filed. If the agency does not enter an order disposing of the petition within the 30-day period, the petition shall be deemed to have been denied as of the expiration of the 30-day period.
227.49(6)
(6) Upon granting a rehearing, the agency shall set the matter for further proceedings as soon as practicable. Proceedings upon rehearing shall conform as nearly may be to the proceedings in an original hearing except as the agency may otherwise direct. If in the agency's judgment, after such rehearing it appears that the original decision, order or determination is in any respect unlawful or unreasonable, the agency may reverse, change, modify or suspend the same accordingly. Any decision, order or determination made after such rehearing reversing, changing, modifying or suspending the original determination shall have the same force and effect as an original decision, order or determination.
227.49 History
History: 1975 c. 94 s.
3;
1975 c. 414;
1977 c. 139;
1979 c. 208;
1985 a. 182 s.
33t; Stats. 1985 s. 227.49.
227.49 Annotation
This section does not require service of a petition for rehearing within 20 days of service of the order; only filing. DOR v. Hogan, 198 W (2d) 792, 542 NW (2d) 148 (Ct. App. 1995).
227.50
227.50
Ex parte communications in contested cases. 227.50(1)(a)(a) In a contested case, no ex parte communication relative to the merits or a threat or offer of reward shall be made, before a decision is rendered, to the hearing examiner or any other official or employe of the agency who is involved in the decision-making process, by:
227.50(1)(a)1.
1. An official of the agency or any other public employe or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter; or
227.50(1)(a)2.
2. A party to the proceeding, or any person who directly or indirectly would have a substantial interest in the proposed agency action or an authorized representative or counsel.
227.50(1)(b)
(b) Paragraph (a) 1. does not apply to an advisory staff which does not participate in the proceeding.
227.50(1)(c)
(c) This subsection does not apply to an ex parte communication which is authorized or required by statute.
227.50(1)(d)
(d) This subsection does not apply to an ex parte communication by an official or employe of an agency which is conducting a class 1 proceeding.
227.50(1)(e)
(e) This subsection does not apply to any communication made to an agency in response to a request by the agency for information required in the ordinary course of its regulatory functions by rule of the agency.
227.50(2)
(2) A hearing examiner or other agency official or employe involved in the decision-making process who receives an ex parte communication in violation of
sub. (1) shall place on the record of the pending matter the communication, if written, a memorandum stating the substance of the communication, if oral, all written responses to the communication and a memorandum stating the substance of all oral responses made, and also shall advise all parties that the material has been placed on the record; however, any writing or memorandum which would not be admissible into the record if presented at the hearing shall not be placed in the record, but notice of the substance or nature of the communication shall be given to all parties. Any party desiring to rebut the communication shall be allowed to do so, if the party requests the opportunity for rebuttal within 10 days after notice of the communication. The hearing examiner or agency official or employe may, if deeming it necessary to eliminate the effect of an ex parte communication received, withdraw from the proceeding, in which case a successor shall be assigned.
227.50 History
History: 1975 c. 94 s.
3;
1975 c. 414;
1977 c. 418;
1985 a. 182 s.
33t; Stats. 1985 s. 227.50.
227.50 Annotation
Failure to notify parties of receipt of ex parte communication was harmless error. Seebach v. Public Serv. Comm. 97 W (2d) 712, 295 NW (2d) 753 (Ct. App. 1980).
227.51(1)(1) When the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases apply.
227.51(2)
(2) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally acted upon by the agency, and, if the application is denied or the terms of the new license are limited, until the last day for seeking review of the agency decision or a later date fixed by order of the reviewing court.
227.51(3)
(3) Except as otherwise specifically provided by law, no revocation, suspension, annulment or withdrawal of any license is lawful unless the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If an agency finds that public health, safety or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined.
227.51 History
History: 1975 c. 414;
1985 a. 182 s.
33t; Stats. 1985 s. 227.51.
227.51 AnnotationSummary suspension of occupational licenses discussed.
76 Atty. Gen. 110.
227.52
227.52
Judicial review; decisions reviewable. Administrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form, are subject to review as provided in this chapter, except for the decisions of the department of revenue other than decisions relating to alcohol beverage permits issued under
ch. 125, decisions of the department of employe trust funds, the division of banking, the office of credit unions, the division of savings and loan, the board of state canvassers and those decisions of the department of industry, labor and job development which are subject to review, prior to any judicial review, by the labor and industry review commission, and except as otherwise provided by law.
227.52 Cross-reference
Cross-reference: See s.
50.03 (11) for review under subchapter I of chapter 50.
227.52 Annotation
Legislative Council Note, 1981: The amendment to s. 227.15 applies court review under ch. 227 to revocations, suspensions and nonrenewals by the department of permits issued by it. [Bill 300-A]
227.52 Annotation
An order of the tax appeals commission refusing to dismiss proceedings for lack of jurisdiction is not appealable because the merits of the case are still pending. Pasch v. Dept. of Revenue, 58 W (2d) 346, 206 NW (2d) 157.
227.52 Annotation
The requirements of ss. 227.15 and 227.16 (1), 1983 stats. [now ss. 227.52 and 227.53 (1)], for standing to seek review of an administrative decision, do not create separate and independent criteria, but both sections essentially require that to be a person aggrieved for standing purposes, one must have an interest recognized by law in the subject matter which is injuriously affected by the decision. Wisconsin's Environmental Decade, Inc. v. PSC, 69 W (2d) 1, 230 NW (2d) 243.
227.52 Annotation
An order of the employment relations commission directing an election and determining the bargaining unit under 111.70 (4) (d) is not reviewable. West Allis v. WERC, 72 W (2d) 268, 240 NW (2d) 416.
227.52 Annotation
See note to 111.07, citing WERC v. Teamsters Local No. 563, 75 W (2d) 602, 250 NW (2d) 696.
227.52 Annotation
Unconditional interim order by Public Service Commission fixing utility rates pending final determination is reviewable where no provision was made for refund of excess interim rates. Friends of Earth v. Public Service Commission, 78 W (2d) 388, 254 NW (2d) 299.
227.52 Annotation
Decision of PSC not to investigate under 196.28 and 196.29 was a nonreviewable, discretionary determination. Reviewable decisions defined. Wis. Environmental Decade v. Public Service Comm. 93 W (2d) 650, 287 NW (2d) 737 (1980).
227.52 Annotation
See note to 808.03, citing Bearns v. DILHR, 102 W (2d) 70, 306 NW (2d) 22 (1981).
227.52 Annotation
Because appointment to office was administrative decision, challenge of appointment could only be made under this chapter. State ex rel. Frederick v. Cox, 111 W (2d) 264, 330 NW (2d) 603 (Ct. App. 1982).
227.52 Annotation
Administrative decisions eligible for judicial review in Wisconsin. Klitzke, 61 MLR 405.
227.53
227.53
Parties and proceedings for review. 227.53(1)
(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in
s. 227.52 shall be entitled to judicial review thereof as provided in this chapter.
227.53(1)(a)1.1. Proceedings for review shall be instituted by serving a petition therefor personally or by certified mail upon the agency or one of its officials, and filing the petition in the office of the clerk of the circuit court for the county where the judicial review proceedings are to be held. If the agency whose decision is sought to be reviewed is the tax appeals commission, the banking review board, the consumer credit review board, the credit union review board, the savings and loan review board or the savings bank review board, the petition shall be served upon both the agency whose decision is sought to be reviewed and the corresponding named respondent, as specified under
par. (b) 1. to
5.
227.53(1)(a)2.
2. Unless a rehearing is requested under
s. 227.49, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under
s. 227.48. If a rehearing is requested under
s. 227.49, any party desiring judicial review shall serve and file a petition for review within 30 days after service of the order finally disposing of the application for rehearing, or within 30 days after the final disposition by operation of law of any such application for rehearing. The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency.
227.53(1)(a)3.
3. If the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides, except that if the petitioner is an agency, the proceedings shall be in the circuit court for the county where the respondent resides and except as provided in
ss. 77.59 (6) (b),
182.70 (6) and
182.71 (5) (g). The proceedings shall be in the circuit court for Dane county if the petitioner is a nonresident. If all parties stipulate and the court to which the parties desire to transfer the proceedings agrees, the proceedings may be held in the county designated by the parties. If 2 or more petitions for review of the same decision are filed in different counties, the circuit judge for the county in which a petition for review of the decision was first filed shall determine the venue for judicial review of the decision, and shall order transfer or consolidation where appropriate.
227.53(1)(b)
(b) The petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds specified in
s. 227.57 upon which petitioner contends that the decision should be reversed or modified. The petition may be amended, by leave of court, though the time for serving the same has expired. The petition shall be entitled in the name of the person serving it as petitioner and the name of the agency whose decision is sought to be reviewed as respondent, except that in petitions for review of decisions of the following agencies, the latter agency specified shall be the named respondent:
227.53(1)(b)1.
1. The tax appeals commission, the department of revenue.
227.53(1)(b)2.
2. The banking review board or the consumer credit review board, the division of banking.
227.53(1)(b)3.
3. The credit union review board, the office of credit unions.
227.53(1)(b)4.
4. The savings and loan review board, the division of savings and loan, except if the petitioner is the division of savings and loan, the prevailing parties before the savings and loan review board shall be the named respondents.
227.53(1)(b)5.
5. The savings bank review board, the division of savings and loan, except if the petitioner is the division of savings and loan, the prevailing parties before the savings bank review board shall be the named respondents.
