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.
227.55 Annotation
Time provisions under this section are mandatory. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
227.56
227.56
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.
227.56(2)
(2) 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).
227.56(3)
(3) 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.
227.56 History
History: 1975 c. 414;
1985 a. 182 ss.
41,
57; Stats. 1985 s. 227.56.
227.56 Annotation
See note to 111.39, citing Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
227.56 Annotation
A court may not find facts under (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 W (2d) 243, 490 NW (2d) 770 (Ct. App. 1992).
227.57
227.57
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.
227.57(2)
(2) 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.
227.57(3)
(3) 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.
227.57(4)
(4) 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.
227.57(5)
(5) 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.
227.57(6)
(6) 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.
227.57(7)
(7) 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.
227.57(8)
(8) 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.
227.57(9)
(9) 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.
227.57(10)
(10) 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. 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.
227.57 History
History: 1975 c. 94 s.
3;
1975 c. 414;
1979 c. 208;
1985 a. 182 s.
41; Stats. 1985 s. 227.57.
227.57 Annotation
Finding of fact is supported under (6) if reasonable minds could arrive at the same conclusion. Westring v. James, 71 W (2d) 462, 238 NW (2d) 695.
227.57 Annotation
Reviewing court, in dealing with determination or judgment which administrative agency is alone authorized to make, must judge propriety of action solely by grounds invoked by agency with sufficient clarity. Stas v. Milw. County Civil Service Comm. 75 W (2d) 465, 249 NW (2d) 764.
227.57 Annotation
See note to 30.12, citing Kosmatka v. DNR, 77 W (2d) 558, 253 NW (2d) 887.
227.57 Annotation
Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wis. Environmental Decade v. Public Service Comm. 79 W (2d) 161, 255 NW (2d) 917.
227.57 Annotation
"Discretion" means process of reasoning, not decision-making, based on facts in record or reasonably inferred from record, and conclusion based on logical rationale founded on proper legal standards. Reidinger v. Optometry Examining Board, 81 W (2d) 292, 260 NW (2d) 270.
227.57 Annotation
See note to 220.035, citing State ex rel. 1st Nat. Bank v. M & I Peoples Bk. 82 W (2d) 529, 263 NW (2d) 196.
227.57 Annotation
See note to 1.11, citing Wis. Environmental Decade v. Public Service Comm. 98 W (2d) 682, 298 NW (2d) 205 (Ct. App. 1980).
227.57 Annotation
See note to 628.34, citing Aetna Life Ins. Co. v. Mitchell, 101 W (2d) 90, 303 NW (2d) 639 (1981).
227.57 Annotation
See note to 806.07, citing Charter Mfg. v. Milw. River Restoration, 102 W (2d) 521, 307 NW (2d) 322 (Ct. App. 1981).
227.57 Annotation
Party cannot recover attorney's fees against state under (9). Administrative judge should have been disqualified due to compelling appearance of impropriety. Guthrie v. Wis. Employment Relations Comm. 107 W (2d) 306, 320 NW (2d) 213 (Ct. App. 1982), aff'd. 111 W (2d) 447, 331 NW (2d) 331 (1983).
227.57 Annotation
Commission's change of accounting treatment for recovery of utility expenditures was arbitrary and capricious. Public Ser. Corp. v. Public Serv. Comm. 109 W (2d) 256, 325 NW (2d) 867 (1982).
227.57 Annotation
WERC did not abuse discretion by finding no community of interest between professional teachers and student interns. Unit fragmentation under 111.70 (4) (d) 2. a discussed. Arrowhead United Teachers v. ERC, 116 W (2d) 580, 342 NW (2d) 709 (1984).
227.57 Annotation
Sub. (7) grants trial court broad authority to remand matter to agency for further action where no hearing has been held and no particular result is compelled as matter of law. R. W. Docks & Slips v. DNR, 145 W (2d) 854, 429 NW (2d) 86 (Ct. App. 1988).
227.57 Annotation
On review, there are three levels of deference which 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. Kelley Co. v. Marquardt, 172 W (2d) 234, 493 NW (2d) 68 (1992).
227.57 Annotation
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 W (2d) 666, 503 NW (2d) 305 (Ct. App. 1993).
227.57 Annotation
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 W (2d) 25, 505 NW (2d) 462 (Ct. App. 1993).
227.57 Annotation
Default judgment is incompatible with the scope of review of a ch. 227 proceeding. Wagner v. State Medical Examining Board, 181 W (2d) 633, 511 NW (2d) 874 (1994).
227.57 Annotation
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 W (2d) 559, 550 NW (2d) 534 (Ct. App. 1996).
