227.46 AnnotationAn agency’s alteration of a hearing examiner’s finding of facts without conferring with the hearing examiner violated sub. (2) and rendered the decision procedurally defective. The altered findings, implicitly addressing the issue of the subject’s credibility on a critical issue, logically related to the ultimate determination and violated due process. Epstein v. Benson, 2000 WI App 195, 238 Wis. 2d 717, 618 N.W.2d 224, 99-1338.

227.46 AnnotationUnder sub. (2), if the decision of the administrative agency varies in any respect from that of the administrative law judge, the agency is required to provide an explanation of the basis for each variance, but there is no requirement that the agency indulge in the elaborate opinion procedure of an appellate court. Sub. (2) provides for no opportunity to be heard before the agency when a hearing examiner conducts the original hearing. Each party has the opportunity to file objections to the proposed decision. The agency may direct whether such argument shall be written or oral. Daniels v. Chiropractic Examining Board, 2008 WI App 59, 309 Wis. 2d 485, 750 N.W.2d 951, 07-1072.

227.46 AnnotationSub. (5) requires the 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.

227.47(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 employment relations commission, hearing examiner or arbitrator concerning an appeal of the decision of the administrator of the division of personnel management in the department of administration 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 AnnotationAbsent controlling legislation to the contrary, determinations by administrative agencies acting in a judicial capacity are generally given preclusive effect in subsequent court actions between the same parties. Certain conditions must, however, be met: 1) the administrative proceeding must have been properly before the agency; 2) the administrative agency must have been acting in a judicial capacity; 3) the issues for which preclusion is sought must have been actually determined by the administrative agency; and 4) the parties must have had an adequate opportunity to litigate those issues before the administrative agency. Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis. 2d 381, 497 N.W.2d 756 (Ct. App. 1993).

227.48(1)(1) Except as provided in s. 196.40, every decision when made, signed and filed, shall be served forthwith by personal delivery or by mailing or, with the consent of the parties, by electronically mailing 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 HistoryHistory: 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; 2011 a. 155; 2021 a. 242.

227.48 AnnotationService of a decision is complete on the date of its mailing regardless of its receipt by the addressee. Evans v. Bureau of Local & Regional Planning, 72 Wis. 2d 593, 241 N.W.2d 603 (1976).

227.48 AnnotationFormal notice under sub. (2) of the right to judicial review need be given only with a decision arising out of a contested case proceeding. Collins v. Policano, 231 Wis. 2d 420, 605 N.W.2d 260 (Ct. App. 1999), 99-0255.

227.483(1)(1) If a hearing examiner or the tax appeals commission finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner or tax appeals commission shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.

227.483(2)(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

227.483(3)(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

227.483(3)(b)(b) That the party or the party’s attorney knew, or should have known, that the petition, claim, or defense 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.

227.483(3)(c)(c) If the proceeding relates to mining for ferrous minerals, as defined in s. 295.41 (18), that the petition, claim, or defense was commenced, used, or continued primarily for the purpose of causing delay to an activity authorized under a license that is the subject of the hearing.

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.