227.53 Annotation
The 30-day limitation period under sub. (1) (a) 2. is triggered only by s. 227.48 service of the decision upon the parties, which occurs on the date the decision is mailed to the parties, not the various dates of receipt. Once the time limitation is triggered, strict compliance is required. Wisconsin Power & Light Co. v. PSC,
2006 WI App 221,
296 Wis. 2d 705,
725 N.W. 2d 423,
05-3092.
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,
253.06, and
448.02 (9).
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 Wis. 2d 633,
511 N.W.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
Section 111.36 (3m) (c) [now s. 111.39 (5) (c)] shows a policy against opening Fair Employment proceedings more than one year after the commission's final order; a court should not use ch. 227 or s. 752.35 to circumvent that policy. Chicago & North Western Railroad v. LIRC,
91 Wis. 2d 462,
283 N.W.2d 603 (Ct. App. 1979).
227.56 Annotation
A court may not find facts under sub. (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 Wis. 2d 243,
490 N.W.2d 770 (Ct. App. 1992).
227.56 Annotation
Substantial evidence is that quantity and quality of evidence that a reasonable person could accept as adequate to support a conclusion. Written hearsay medical reports are admissible as evidence. Properly admitted evidence may not necessarily constitute substantial evidence. Uncorroborated written hearsay medical reports alone that were controverted by in-person testimony did not constitute substantial evidence to support a board's decision. Gehin v. Wisconsin Group Insurance Board,
2005 WI 16,
278 Wis. 2d 111,
692 N.W.2d 572,
03-0226.
227.56 Annotation
Because sub. (3) specifically describes in the last sentence the circumstances under which a court may dismiss an amended petition without a motion from the respondent, the only reasonable construction of sub. (3) is that the court may not dismiss the original petition without a timely motion from the respondent asserting that the petition does not allege facts showing that the petitioner is aggrieved. The circuit court does not have the authority to dismiss the petition sua sponte on the ground that it does not allege facts showing that the petitioner was aggrieved. Jackson v. LIRC,
2006 WI App 97,
293 Wis. 2d 332,
715 N.W.2d 654,
05-2123.
227.56 Annotation
Hearsay in Administrative Hearings. Maloney. Wis. Law. Sept. 2005.
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) Subject to
sub. (11), 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.
227.57(11)
(11) Upon review of an agency action or decision affecting a property owner's use of the property owner's property, the court shall accord no deference to the agency's interpretation of law if the agency action or decision restricts the property owner's free use of the property owner's property.
227.57 Note
NOTE: Sub. (11) was created as sub. (11) (a) by
2015 Wis. Act 391 and renumbered to sub. (11) by the legislative reference bureau under s. 13.92 (1) (bm) 2.
227.57(12)
(12) 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;
2015 a. 391; s. 13.92 (1) (bm) 2.
227.57 Annotation
Under sub. (6), a finding of fact is supported if reasonable minds could arrive at the same conclusion. Westring v. James,
71 Wis. 2d 462,
238 N.W.2d 695 (1976).
227.57 Annotation
A reviewing court, in dealing with a determination or judgment that an administrative agency is alone authorized to make, must judge the propriety of the action solely on grounds invoked by the agency with sufficient clarity. Stas v. Milwaukee County Civil Service Commission
75 Wis. 2d 465,
249 N.W.2d 764 (1977).
227.57 Annotation
When a DNR decision under s. 30.12 prohibited a structure and the riparian owner did not seek review under s. 227.20 [now 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that structure was a permitted “pier" under s. 30.13. Kosmatka v. DNR,
77 Wis. 2d 558,
253 N.W.2d 887 (1977).
227.57 Annotation
Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wis. Environmental Decade v. PSC,
79 Wis. 2d 161,
255 N.W.2d 917 (1977).
227.57 Annotation
“Discretion" means a process of reasoning, not decision-making, based on facts in the record or reasonably inferred from the record, and a conclusion based on a logical rationale founded on proper legal standards. Reidinger v. Optometry Examining Board,
81 Wis. 2d 292,
260 N.W.2d 270 (1977).
227.57 Annotation
An agency determination that an environmental impact statement was adequately prepared is reviewed under s. 227.20 [now s. 227.57]. Wisconsin's Environmental Decade, Inc. v. PSC,
98 Wis. 2d 682,
298 N.W.2d 205 (Ct. App. 1980).
227.57 Annotation
Relief from a judgment entered in a ch. 227 review may not be granted under s. 806.07. Charter Manufacturing Co. v. Milwaukee River Restoration Council, Inc.
102 Wis. 2d 521,
307 N.W.2d 322 (Ct. App. 1981).
227.57 Annotation
A party cannot recover attorney's fees against the state under sub. (9). An administrative judge should have been disqualified due to a compelling appearance of impropriety. Guthrie v. WERC,
107 Wis. 2d 306,
320 N.W.2d 213 (Ct. App. 1982).
227.57 Annotation
The commission's change of accounting treatment for recovery of utility expenditures was arbitrary and capricious. Wisconsin Public Service Corp. v. PSC,
109 Wis. 2d 256,
325 N.W.2d 867 (1982).
227.57 Annotation
Sub. (7) grants the trial court broad authority to remand a matter to an agency for further action when no hearing has been held and no particular result is compelled as a matter of law. R. W. Docks & Slips v. DNR,
145 Wis. 2d 854,
429 N.W.2d 86 (Ct. App. 1988).
227.57 Annotation
Sub. (4) does not require a higher standard of fairness than the constitutional requirement of due process. The requirement of fairness merely insures that the procedure before the administrative agency will meet the requirements of due process. Due process in an administrative proceeding is really a question of the presence or absence of fair play. Bracegirdle v. Board of Nursing,
159 Wis. 2d 402,
464 N.W.2d 111 (Ct. App. 1990).
227.57 Annotation
On review, there are three levels of deference that 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; great weight, due weight, and de novo. Kelley Company, Inc. v. Marquardt,
172 Wis. 2d 234,
493 N.W.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 Wis. 2d 666,
503 N.W.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 Wis. 2d 25,
505 N.W.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 Wis. 2d 633,
511 N.W.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 Wis. 2d 558,
550 N.W.2d 534 (Ct. App. 1996),
95-0797.
227.57 Annotation
De novo review of an administrative decision is appropriate only if the issue is one of first impression or the agency's position has been so inconsistent as to be of no guidance. An agency need not have considered identical or even substantially similar facts before, only the particular statutory scheme. ITW Deltar v. LIRC,
226 Wis. 2d 11,
593 N.W.2d 908 (Ct. App. 1999),
98-2912.
227.57 Annotation
Emphasizing the uniqueness of certain facts presented to an administrative agency does not assure de novo review of the agency's decision. The test is not whether the agency has ruled on the precise, or even substantially similar, facts. The key is the agency's experience in administering a particular statutory scheme. Mattila v. Employee Trust Funds Board,
2001 WI App 79,
243 Wis. 2d 90,
626 N.W.2d 33,
00-0759.
227.57 Annotation
The test under sub. (6) is whether, taking into account all of the evidence in the record, reasonable minds could arrive at the same conclusion as the agency. The findings of an administrative agency do not need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. If the factual findings of the administrative body are reasonable, they will be upheld. Kitten v. DWD,
2002 WI 54,
252 Wis. 2d 561,
644 N.W.2d 649,
00-3562.
227.57 Annotation
Ordinarily a reviewing court will not consider issues beyond those properly raised before the administrative agency, and a failure to raise an issue generally constitutes a waiver of the right to raise the issue. However, the rule is one of administration, and the reviewing court has the power to decide issues that were not raised before the agency if all the necessary facts are of record and the issue is a legal one of great importance. Bunker v. LIRC,
2002 WI App 216, 257 Wis. 2d. 255,
650 N.W.2d 864,
01-3441.
227.57 Annotation
An agency's interpretation of its own rules is controlling unless it is plainly erroneous or inconsistent with the language of the rule. Agency interpretations of it's own rules generally receive only one level of deference from appellate courts, called either controlling weight or great weight. Despite the difference in terminology, the deference given is similar to the great weight standard applied to statutory interpretations. Both turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Baer v. Wisconsin DNR,
2006 WI App 225,
297 Wis. 2d 232,
724 N.W.2d 638,
05-0668.
227.57 Annotation
Controlling weight deference is similar to great weight deference, despite the difference in terminology, because both standards turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Controlling weight describes a level of deference given to an agency's interpretation and application of administrative rules and regulations, while great weight deference describes a level of deference given to an agency's interpretation and application of a statute. DaimlerChrysler v. LIRC,
2007 WI 15,
299 Wis. 2d 1,
727 N.W.2d 311,
05-0544.
227.57 Annotation
Due process does not disqualify an agency as a decision-maker merely because of familiarity with the facts of the case. Hortonville Dist. v. Hortonville Ed. Asso.
426 U.S. 482 (1976).
227.57 Annotation
If a court affirms an agency decision under sub. (2), an unsuccessful claimant may not bring a claim to federal court. Young v. Michigan Wisconsin Pipe Line Co.
569 F. Supp. 741 (1983).
227.57 Annotation
The Standards of Review for Agency Interpretation of Statutes in Wisconsin. Massa. 83 MLR 597 (2000).
227.57 Annotation
The scope of judicial review in Wisconsin. Hewitt, 1973 WLR 554.
227.57 Annotation
The standard of review of administrative rules in Wisconsin. 1982 WLR 691.
227.58
227.58
Appeals. Any party, including the agency, may secure a review of the final judgment of the circuit court by appeal to the court of appeals within the time period specified in
s. 808.04 (1).
227.58 History
History: 1977 c. 187 s.
134;
1983 a. 219;
1985 a. 182 s.
41; Stats. 1985 s. 227.58.
227.58 Note
Judicial Council Note, 1983: This section is amended by repealing the appeal deadline of 30 days from notice of entry of judgment for greater uniformity. An appeal must be initiated within the time specified in s. 808.04 (1), stats. This section is further amended to eliminate the superfluous provision that the appeal is taken in the manner of other civil appeals. Civil appeal procedures are governed by chs. 808 and 809. [Bill 151-S]
227.58 Annotation
The court of appeals had no power to remand a case under s. 806.07 (1) (b) or (h); ch. 227 cannot be supplemented by statutory remedies pertaining to civil procedure. Chicago & North Western Railroad v. LIRC,
91 Wis. 2d 462,
283 N.W.2d 603 (Ct. App. 1979).
227.59
227.59
Certification of certain cases from the circuit court of Dane County to other circuits. Any action or proceeding for the review of any order of an administrative officer, commission, department or other administrative tribunal of the state required by law to be instituted in or taken to the circuit court of Dane County except an action or appeal for the review of any order of the department of workforce development or the department of safety and professional services or findings and orders of the labor and industry review commission which is instituted or taken and is not called for trial or hearing within 6 months after the proceeding or action is instituted, and the trial or hearing of which is not continued by stipulation of the parties or by order of the court for cause shown, shall on the application of either party on 5 days' written notice to the other be certified and transmitted for trial to the circuit court of the county of the residence or principal place of business of the plaintiff or petitioner, where the action or proceeding shall be given preference. Unless written objection is filed within the 5-day period, the order certifying and transmitting the proceeding shall be entered without hearing. The plaintiff or petitioner shall pay to the clerk of the circuit court of Dane County a fee of $2 for transmitting the record.
227.60
227.60
Jurisdiction of state courts to determine validity of laws when attacked in federal court and to stay enforcement. Whenever a suit praying for an interlocutory injunction shall have been begun in a federal district court to restrain any department, board, commission or officer from enforcing or administering any statute or administrative order of this state, or to set aside or enjoin the suit or administrative order, the department, board, commission or officer, or the attorney general, may bring a suit to enforce the statute or order in the circuit court of Dane County at any time before the hearing on the application for an interlocutory injunction in the suit in the federal court. Jurisdiction is hereby conferred upon the circuit court of Dane County and on the court of appeals, on appeal, to entertain the suit with the powers granted in this section. The circuit court shall, when the suit is brought, grant a stay of proceedings by any state department, board, commission or officer under the statute or order pending the determination of the suit in the courts of the state. The circuit court of Dane County upon the bringing of the suit therein shall at once cause a notice thereof, together with a copy of the stay order by it granted, to be sent to the federal district court in which the action was originally begun. An appeal shall be taken within the time period specified in
s. 808.04 (2). The appeal shall be given preference.
227.60 History
History: 1977 c. 187;
1983 a. 219;
1985 a. 182 s.
49; Stats. 1985 s. 227.60.
227.60 Note
Judicial Council Note, 1983: This section is amended to replace the appeal deadline of 10 days after termination of the suit by the time provisions of s. 808.04 (2), for greater uniformity. Section 808.04 (2) provides that an appeal must be initiated within 15 days of entry of judgment or order appealed from. The provision requiring preferential court treatment is harmonized and standardized with similar provisions in the statutes. [Bill 151-S]
