Chapter 227

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 Affirmed. 111 Wis. 2d 447, 331 N.W.2d 331 (1983).

227.57 Annotation The Public Service 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 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 proceeding under this chapter. Wagner v. 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 The courts will not defer to an agency interpretation that directly contravenes the words of a rule. Trott v. DHFS, 2001 WI App 68, 242 Wis. 2d 397, 626 N.W.2d 48, 00-1486.

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. Employe 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. See also Meteor Timber, LLC v. Division of Hearings & Appeals, 2022 WI App 5, 400 Wis. 2d 451, 969 N.W.2d 746, 20-1869.

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 The deference framework applicable to an agency’s interpretation of a statute was inapposite in this case in which the court was required to determine whether an executive agency’s review of a circuit court’s decision comported with the separation of powers under the Wisconsin Constitution. Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384, 16-0275.

227.57 Annotation The practice of courts deferring to administrative agencies’ conclusions of law is ended. However, pursuant to sub. (10), the court will give due weight to the experience, technical competence, and specialized knowledge of an administrative agency as the court considers the arguments. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, 15-2019.

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 Joint School District No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (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 of Administrative Agency Decisions in Wisconsin. Hewitt. 1973 WLR 554.

227.57 Annotation The Standard of Review of Administrative Rules in Wisconsin. Zabrowski. 1982 WLR 691.

227.57 Annotation When Roles Collide: Deference, Due Process, and the Judicial Dilemma. Buchmeyer. 2019 WLR 1589.

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); this chapter 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).

227.58 Annotation Judicial review of a decision by an administrative agency requires a court reviewing a decision on appeal to review the decision of the agency, not the circuit court. However, the reviewing court affirms or reverses the order of the circuit court under s. 227.57. The scope of review of the reviewing court is the same as that of the circuit court. Town of Holland v. PSC, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.

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.

227.59 History History: 1977 c. 29; 1983 a. 219; 1985 a. 182 s. 47; Stats. 1985 s. 227.59; 1995 a. 27 ss. 6238, 9116 (5), 9130 (4); 1997 a. 3; 2011 a. 32.

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]