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.
227.53(1)(c)
(c) 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.
227.53(1)(d)
(d) The agency (except in the case of the tax appeals commission and the banking review board, the consumer credit review board, the credit union review board, the savings and loan review board and the savings bank review board) 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.
227.53(2)
(2) 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.
227.53 Annotation
The circuit court has no jurisdiction of an appeal from the tax appeals commission where the petition for review was served only on the department of revenue and not on the commission within the allowed 30 days. Brachtl v. Dept. of Revenue, 48 W (2d) 184, 179 NW (2d) 921.
227.53 Annotation
Service on the department of a notice of appeal by ordinary mail, when received in time and not promptly objected to is good service. Service on a staff member of the department is sufficient if in the past that individual has represented himself as agent and as attorney for the department. Hamilton v. ILHR Dept. 56 W (2d) 673, 203 NW (2d) 7.
227.53 Annotation
An appeal will not lie from an order denying a petition to reopen an earlier PSC order where no appeal was taken from the order or the order denying rehearing within 30 days. Town of Caledonia v. Public Service Comm. 56 W (2d) 720, 202 NW (2d) 912.
227.53 Annotation
Failure to strictly comply with the caption requirements of (1) does not divest a court of jurisdiction if all other jurisdictional requirements are met. Evans v. Dept. of Local Affairs & Development, 62 W (2d) 622, 215 NW (2d) 408.
227.53 Annotation
Where 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. Dept. of Revenue, 66 W (2d) 253, 224 NW (2d) 570.
227.53 Annotation
The implied authority of the PSC under various provisions of ch. 196, to insure that future supplies of natural gas will remain as reasonably adequate and sufficient as practicable indicates a legally recognized interest of the environmental group members living in the area affected by the commission order in the future adequacy of their service which is sufficient to provide standing if the facts alleged in the petition are true to challenge the commission's failure to consider conservation alternatives to the proposed priority system. Wisconsin's Environmental Decade, Inc. v. PSC, 69 W (2d) 1, 230 NW (2d) 243.
227.53 Annotation
County has standing to challenge validity of rule not adopted in conformity with ss. 227.02 through 227.025, 1983 stats. Dane County v. H&SS Dept. 79 W (2d) 323, 255 NW (2d) 539.
227.53 Annotation
"Parties" under sub. (1) (c), 1975 stats., are those persons affirmatively demonstrating active interest in the proceedings; PSC must identify parties. Wis. Environmental Decade v. Public Service Comm. 84 W (2d) 504, 267 NW (2d) 609 (1978).
227.53 Annotation
Ch. 801 is inapplicable to judicial review proceedings. Omernick v. DNR, 94 W (2d) 309, 287 NW (2d) 841 (Ct. App. 1979).
227.53 Annotation
Service on department rather than on specific division within department was sufficient notice under this section. Sunnyview Village v. Adm. Dept. 104 W (2d) 396, 311 NW (2d) 632 (1981).
227.53 Annotation
Where petitioners lacked standing to seek review and where intervenors filed after time limit in sub. (1), intervenors could not continue to press claim. Fox v. DHSS, 112 W (2d) 514, 334 NW (2d) 532 (1983).
227.53 Annotation
See note to s. 1.11, citing Milwaukee Brewers v. DH&SS, 130 W (2d) 56, 387 NW (2d) 245 (1986).
227.53 Annotation
Two-part test for determining whether party has standing under sub. (1) discussed. Waste Management of Wisconsin v. DNR, 144 W (2d) 499, 424 NW (2d) 685 (1988).
227.53 Annotation
County has standing to bring petition for review because petition initiates special proceeding rather than action. Richland County v. DH&SS, 146 W (2d) 271, 430 NW (2d) 374 (Ct. App. 1988).
227.53 Annotation
Delivery of a petition to an agency attorney did not meet the requirements for service under sub. (1) (a) 1. Weisensel v. DHSS, 179 W (2d) 637, 508 NW (2d) 33 (Ct. App. 1993).
227.53 Annotation
Time provisions under sub. (2) are mandatory. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
227.54
227.54
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
551.62.
227.54 History
History: 1983 a. 27;
1985 a. 182 s.
39; Stats. 1985 s. 227.54;
1987 a. 5.
227.55
227.55
Record on review. Within 30 days after service of the petition for review upon the agency, or within such further time as the court may allow, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings in which the decision under review was made, including all pleadings, notices, testimony, exhibits, findings, decisions, orders and exceptions, therein; but by stipulation of all parties to the review proceedings the record may be shortened by eliminating any portion thereof. Any party, other than the agency, refusing to stipulate to limit the record may be taxed by the court for the additional costs. The record may be typewritten or printed. The exhibits may be typewritten, photostated 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.
227.55 History
History: 1985 a. 182 s.
41; Stats. 1985 s. 227.55.
