227.485 Costs to certain prevailing parties. (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. (2) In this section: (a) “Hearing examiner” means the agency or hearing examiner conducting the hearing. (b) “Nonprofit corporation” has the meaning designated in s. 181.0103 (17). (c) “Small business” means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000. (d) “Small nonprofit corporation” means a nonprofit corporation which employs fewer than 25 full-time employees. (e) “State agency” does not include the citizens utility board. (f) “Substantially justified” means having a reasonable basis in law and fact. (3) In any contested case in which an individual, a small nonprofit corporation or a small business is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust. (4) In determining the prevailing party in cases in which more than one issue is contested, the examiner shall take into account the relative importance of each issue. The examiner shall provide for partial awards of costs under this section based on determinations made under this subsection. (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.
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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. (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). (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. (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). (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. (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: (a) The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency. (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. 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; 1997 a. 27, 79; 2003 a. 145. That the state loses a case does not justify the automatic imposition of fees and costs. An award depends upon whether the state’s position had arguable merit. Behnke v. DHSS, 146 Wis. 2d 178, 430 N.W.2d 600 (Ct. App. 1988). This section requires a party who prevails in an agency’s proposed decision to seek costs within 30 days of the proposed decision, thereby permitting the hearing examiner to make appropriate findings on entitlement to, and amount of, costs to be awarded. Any disputes regarding that decision can then be resolved, along with the merits of the underlying matter, in one final decision. Gordon v. Medical Examining Board, 225 Wis. 2d 552, 593 N.W.2d 481 (Ct. App. 1999), 98-2144.
227.49 Petitions for rehearing in contested cases. (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. (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. (3) Rehearing will be granted only on the basis of:
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(a) Some material error of law. (b) Some material error of fact. (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. (4) Copies of petitions for rehearing shall be served on all parties of record. Parties may file replies to the petition. (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. (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. 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. 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 Wis. 2d 792, 543 N.W.2d 825 (Ct. App. 1995), 95-0438. Filing of a petition for rehearing under sub. (1) is not accomplished upon its mailing. A petition is filed when it is physically delivered to and received by the relevant authority. Currier v. DOR, 2006 WI App 12, 288 Wis. 2d 693, 709 N.W.2d 520, 050292. In this case, when the analysis set forth in an order of the Public Service Commission (PSC) denying a petition for rehearing under this section was analogous to PSC’s decision in the underlying matter, the decision denying the rehearing met the definition of an administrative decision for purposes of being subject to judicial review under s. 227.52. The substantial evidence standard under s. 227.57 (6) therefore applied with respect to review of PSC’s findings of fact underlying PSC’s decision on whether to grant rehearing. Town of Holland v. PSC, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129.
227.50 Ex parte communications in contested cases. (1) (a) Except as provided in par. (am), 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 employee of the agency who is involved in the decision-making process, by any of the following: 1m. An official of the agency or any other public employee or official engaged in prosecution or advocacy in connection with the matter under consideration or a factually related matter. This subdivision does not apply to an advisory staff which does not participate in the proceeding. 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. (am) Paragraph (a) does not apply to any of the following: 1. An ex parte communication which is authorized or required by statute. 2. An ex parte communication by an official or employee of an agency which is conducting a class 1 proceeding. 3. 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. 4. In a contested case before the public service commission, an ex parte communication by or to any official or employee of the commission other than the hearing examiner, the chairperson, or a commissioner. (2) A hearing examiner or other agency official or employee
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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 employee 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. History: 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 418; 1985 a. 182 s. 33t; Stats. 1985 s. 227.50; 2013 a. 28; 2015 a. 55. The failure to notify the parties of the receipt of an ex parte communication was harmless error. Seebach v. PSC, 97 Wis. 2d 712, 295 N.W.2d 753 (Ct. App. 1980).
227.51 Licenses. (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. (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. (3) (a) 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. (b) If an agency finds that public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, the agency may order the summary suspension of a license pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined. (c) If an agency finds that public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, the agency may order the summary limitation of a license pending proceedings for revocation or other action. Such proceedings shall be promptly instituted and determined. This paragraph applies only to an agency described in s. 440.03 (1). History: 1975 c. 414; 1985 a. 182 s. 33t; Stats. 1985 s. 227.51; 2017 a. 328. Cross-reference: See also chs. SPS 1 and 2, Wis. adm. code. An applicant denied a racetrack license had a right to a contested case hearing. Metropolitan Greyhound Management Corp. v. Wisconsin Racing Board, 157 Wis. 2d 678, 460 N.W.2d 802 (Ct. App. 1990). A change to the statutes or rules that might negatively affect a permit holder does not itself constitute a revocation for the purpose of this section. LeClair v. Natural Resources Board, 168 Wis. 2d 227, 483 N.W.2d 278 (Ct. App. 1992). Discussing summary suspension of occupational licenses. 76 Atty. Gen. 110.
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 as otherwise provided by law and except for the following:
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(1) Decisions of the department of revenue. (2) Decisions of the department of employee trust funds. (3) Those decisions of the division of banking that are subject to review, prior to any judicial review, by the banking institutions review board, and decisions of the division of banking relating to savings banks or savings and loan associations, but no other institutions subject to the jurisdiction of the division of banking. (4) Decisions of the office of credit unions. (6) Decisions of the chairperson of the elections commission or the chairperson’s designee. (7) Those decisions of the department of workforce development which are subject to review, prior to any judicial review, by the labor and industry review commission. History: 1975 c. 414; 1977 c. 187, 418; 1981 c. 79, 96, 391; 1983 a. 27, 122, 183, 538; 1985 a. 182 s. 35; Stats. 1985 s. 227.52; 1995 a. 27 ss. 6233, 9130 (4); 1997 a. 3, 27; 1999 a. 9, 182; 2003 a. 33; 2007 a. 1; 2015 a. 118; 2019 a. 65; 2023 a. 73. Cross-reference: See s. 50.03 (11) for review under subch. I of ch. 50. An order of the Tax Appeals Commission refusing to dismiss proceedings for lack of jurisdiction was not appealable because the merits of the case were still pending. Pasch v. DOR, 58 Wis. 2d 346, 206 N.W.2d 157 (1973). The right to appeal from an administrative agency’s determination is statutory and does not exist except where expressly given and cannot be extended to cases not within the statute. Pasch v. DOR, 58 Wis. 2d 346, 206 N.W.2d 157 (1973). The requirements of ss. 227.15 and 227.16 (1) [now this section and s. 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 that is injuriously affected by the decision. Wisconsin’s Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975). But see Friends of the Black River Forest v. Kohler Co., 2022 WI 52, 402 Wis. 2d 587, 977 N.W.2d 342, 19-0299. An order of the Wisconsin Employment Relations Commission directing an election and determining the bargaining unit under s. 111.70 (4) (d) was not reviewable. City of West Allis v. WERC, 72 Wis. 2d 268, 240 N.W.2d 416 (1976). An unconditional interim order by the Public Service Commission fixing utility rates pending final determination was reviewable when no provision was made for the refund of excess interim rates. Friends of the Earth v. PSC, 78 Wis. 2d 388, 254 N.W.2d 299 (1977). The decision of the Public Service Commission not to investigate under ss. 196.28 and 196.29 [now s. 196.28 (1) to (3)] was a nonreviewable, discretionary determination. Defining reviewable decisions. Wisconsin’s Environmental Decade, Inc. v. PSC, 93 Wis. 2d 650, 287 N.W.2d 737 (1980). In Town of Ashwaubenon, 22 Wis. 2d 38 (1963), the requirement of a contested case was abrogated as a condition to judicial review of administrative agency decisions, but the legislative declaration that decisions of administrative agencies be reviewed under s. 227.15 [now this section] envisions a review of a decision that must be supported by a record and be based upon findings of fact and conclusions of law as required by s. 227.10 [now s. 227.47]. Wisconsin’s Environmental Decade, Inc. v. PSC, 93 Wis. 2d 650, 287 N.W.2d 737 (1980). A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR, 102 Wis. 2d 70, 306 N.W.2d 22 (1981). Because an appointment to office was an administrative decision, a challenge of the appointment could only be made under this chapter. State ex rel. Frederick v. Cox, 111 Wis. 2d 264, 330 N.W.2d 603 (Ct. App. 1982). A declaratory judgment action was improper when the plaintiff did not pursue any available remedies under this chapter. Turkow v. DNR, 216 Wis. 2d 273, 576 N.W.2d 288 (Ct. App. 1998), 97-1149. The Division of Hearings and Appeals (DHA) is not a line agency charged with the administration and enforcement of the statutes involved and does not have experience administering the underlying program. Unless the line agency has adopted DHA’s interpretation as its own, de novo review of a DHA decision is appropriate. Buettner v. DHFS, 2003 WI App 90, 264 Wis. 2d 700, 663 N.W.2d 282, 01-0981. Unlike factual questions, or questions with legal issues intertwined with factual determinations, neither party bears any burden when the issue before the court is whether an administrative agency exceeded the scope of its powers in promulgating a rule. The court examines the enabling statute de novo to ascertain whether the statute grants express or implied authorization for the rule. Any reasonable doubt pertaining to an agency’s implied powers are resolved against the agency. Wisconsin Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, 270 Wis. 2d 318, 677 N.W.2d 612, 02-1166. Although this section does not require that an administrative decision be final to be subject to judicial review, case law has established that the legislative intent was to limit judicial review to final orders of an agency. A final order for purposes of judicial review directly affects the legal rights, duties, or privileges of a person. One aspect of this standard is whether the person would have another opportunity for judicial review, whereas an interlocutory order is one under which the substantial rights of the parties remain undetermined and the cause is retained for further action. Sierra Club v. DNR, 2007 WI App 181, 304 Wis. 2d 614, 736 N.W.2d 918, 062653. In this case, when the analysis set forth in an order of the Public Service Commission (PSC) denying a petition for rehearing under s. 227.49 was analogous to PSC’s decision in the underlying matter, the decision denying the rehearing met the definition of an administrative decision for purposes of being subject to judicial review
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under this section. The substantial evidence standard under s. 227.57 (6) therefore applied with respect to review of PSC’s findings of fact underlying PSC’s decision on whether to grant rehearing. Town of Holland v. PSC, 2018 WI App 38, 382 Wis. 2d 799, 913 N.W.2d 914, 17-1129. An environmental impact statement (EIS), by its plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a proposal without dictating any course of action or establishing the rights of any interested party. Accordingly, a party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges to the EIS in a petition for judicial review of the agency decision that the EIS analyzes. Friends of the Black River Forest v. DNR, 2021 WI App 54, 404 Wis. 2d 590, 964 N.W.2d 342, 19-2434. An agency letter indicating that the petitioner simply must comply with the permitting process to get a permit, which may accrue some cost to the petitioner, does not adversely affect the petitioner’s substantial interests. As a result, the letter is not subject to judicial review. Container Life Cycle Management, LLC v. DNR, 2022 WI 45, 402 Wis. 2d 337, 975 N.W.2d 621, 19-1007. While historically the court has labeled the second prong of the standing test as a “zone of interests” inquiry in line with federal standing principles, this nomenclature has no basis in the text of this section or s. 227.53 and does not accurately describe the test the court has consistently applied. The court grounds the decision instead in the well-established formulation for standing to challenge administrative decisions, which requires the alleged injury to adversely affect an interest that the law recognizes or seeks to regulate or protect. Friends of the Black River Forest v. Kohler Co., 2022 WI 52, 402 Wis. 2d 587, 977 N.W.2d 342, 19-0299. Administrative Decisions Eligible for Judicial Review in Wisconsin. Klitzke. 61 MLR 405 (1978).
227.53 Parties and proceedings for review. (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 of the decision as provided in this chapter and subject to all of the following procedural requirements: (a) 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 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 institutions review board, or the credit union 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 4. 2. Unless a rehearing is requested under s. 227.49, petitions for review of contested cases 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 under this subdivision 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 subdivision commences on the day after personal service or mailing of the decision by the agency. 2m. Petitions for review of cases other than contested cases shall be served and filed within 30 days after personal service or mailing of the decision by the agency. 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. 73.0301 (2) (b) 2., 77.59 (6) (b), 108.227 (6), 182.70 (6), and 182.71 (5) (g). If the petitioner is a nonresident, the proceedings shall be held in the county where the property affected by the decision is located or, if no property is affected, in the county where the dispute arose. 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.
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(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: 1. The tax appeals commission, the department of revenue. 3. The credit union review board, the office of credit unions. 4. The banking institutions review board, the division of banking, except if the petitioner is the division of banking, the prevailing parties before the banking institutions review board shall be the named respondents. (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. (d) Except in the case of the tax appeals commission, the banking institutions review board, and the credit union review board, the agency 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. (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. History: 1971 c. 243; 1975 c. 94 s. 3; 1975 c. 414; 1977 c. 26 s. 75; 1977 c. 187; 1979 c. 90, 208, 355; 1985 a. 149 s. 10; 1985 a. 182 ss. 37, 57; Stats. 1985 s. 227.53; 1987 a. 27, 313, 399; 1991 a. 221; 1995 a. 27; 1997 a. 27; 1999 a. 9, 85; 2001 a. 38; 2003 a. 33, 118; 2005 a. 253; 2009 a. 324; 2013 a. 36; 2019 a. 65. The circuit court had no jurisdiction [now referred to as competency to exercise jurisdiction] of an appeal from the Tax Appeals Commission when the petition for review was served only on the Department of Revenue and not on the commission within the allowed 30 days. Brachtl v. DOR, 48 Wis. 2d 184, 179 N.W.2d 921 (1970). Service on the Department of Industry, Labor and Human Relations of a notice of appeal by ordinary mail, when received in time and not promptly objected to was good service. Service on a staff member of the department was sufficient when in the past that individual had represented himself as an agent and as an attorney for the department. Hamilton v. DILHR, 56 Wis. 2d 673, 203 N.W.2d 7 (1973). An appeal will not lie from an order denying a petition to reopen an earlier Public Service Commission order when no appeal was taken from the order or the order
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denying rehearing within 30 days. Town of Caledonia v. PSC, 56 Wis. 2d 720, 202 N.W.2d 912 (1973). A failure to strictly comply with the caption requirements of sub. (1) does not divest a court of jurisdiction [now referred to as competency to exercise jurisdiction] if all other jurisdictional requirements are met. Evans v. Department of Local Affairs & Development, 62 Wis. 2d 622, 215 N.W.2d 408 (1974). When the taxpayer failed to serve a copy of the 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 [now referred to as competency to exercise jurisdiction]. Cudahy v. DOR, 66 Wis. 2d 253, 224 N.W.2d 570 (1974). The implied authority of the Public Service Commission (PSC) under various provisions of ch. 196 to ensure that future supplies of natural gas remain as reasonably adequate and sufficient as practicable indicated a legally recognized interest of environmental group members living in the area affected by the PSC order in the future adequacy of their service that was sufficient to provide standing to challenge PSC’s failure to consider conservation alternatives to the proposed priority system. Wisconsin’s Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975). But see Friends of the Black River Forest v. Kohler Co., 2022 WI 52, 402 Wis. 2d 587, 977 N.W.2d 342, 19-0299. A county had standing to challenge the validity of a rule not adopted in conformity with former ss. 227.02 to 227.025, 1983 stats. County of Dane v. DHSS, 79 Wis. 2d 323, 255 N.W.2d 539 (1977). “Parties” under former sub. (1) (c), 1975 stats., are those persons affirmatively demonstrating active interest in the proceedings. It was incumbent upon the Public Service Commission to identify those parties. Wisconsin’s Environmental Decade, Inc. v. PSC, 84 Wis. 2d 504, 267 N.W.2d 609 (1978). Ch. 801 is inapplicable to judicial review proceedings. Omernick v. DNR, 94 Wis. 2d 309, 287 N.W.2d 841 (Ct. App. 1979). Service on a department rather than on a specific division within the department was sufficient notice under this section. Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 311 N.W.2d 632 (1981). When the petitioners lacked standing to seek review and the intervenors filed after the time limit in sub. (1), the intervenors could not continue to press their claim. Fox v. DHSS, 112 Wis. 2d 514, 334 N.W.2d 532 (1983). The test for determining whether a party has standing is: 1) whether the agency decision directly causes injury to the interest of the petitioner; and 2) whether the asserted interest is recognized by law. Waste Management of Wisconsin, Inc. v. DNR, 144 Wis. 2d 499, 424 N.W.2d 685 (1988). Although it may not be able to sue the state, a county has standing to bring a petition for review because the petition initiates a special proceeding rather than an action. Richland County v. DHSS, 146 Wis. 2d 271, 430 N.W.2d 374 (Ct. App. 1988). Strict compliance with the service requirements of sub. (1) is essential to the circuit court’s subject matter jurisdiction [now referred to as competency to exercise jurisdiction]. In this case, delivery of a petition to an agency attorney did not meet the requirements for service under sub. (1) (a) 1. Weisensel v. DHSS, 179 Wis. 2d 637, 508 N.W.2d 33 (Ct. App. 1993). The time provisions under sub. (2) are mandatory. Wagner v. Medical Examining Board, 181 Wis. 2d 633, 511 N.W.2d 874 (1994). In the case of a petition for review under this chapter, the petition commences the action rather than continuing it. As an attorney is not authorized to accept the service of process commencing an action, service on the attorney general rather than the agency is insufficient to commence an action for review. Gimenez v. Medical Examining Board, 229 Wis. 2d 312, 600 N.W.2d 28 (Ct. App. 1999), 98-1367. Because parties to an agency proceeding have the right to participate in judicial review proceedings under the first sentence in sub. (1) (d), those parties are not part of the group referred to as “other interested persons” in the second sentence and therefore are not entitled to petition for permissive intervention. Under sub. (1) (d), the petition to intervene must be served on all parties to the judicial review at least five days before the hearing on the intervention petition. Citizens’ Utility Board v. PSC, 2003 WI App 206, 267 Wis. 2d 414, 671 N.W.2d 11, 02-1834. As a general matter, sub. (1) (a) 2. affords a petitioner 30 days from the date of service of the original adverse agency decision to file a petition for judicial review. The extended deadline for filing a petition for judicial review applies only when rehearing is requested under s. 227.49. Section 227.49 (1) specifies that the petition for rehearing must be filed, meaning physically delivered to and received by the agency, within 20 days of the initial decision. If the petition for rehearing is not filed within the 20-day time limit, a rehearing is not properly requested under s. 227.49, and the petitioner does not acquire the benefit of the extended deadline for petitioning for judicial review. Currier v. DOR, 2006 WI App 12, 288 Wis. 2d 693, 709 N.W.2d 520, 05-0292. Although sub. (1) did not clearly prescribe which governmental entity must be named and served as respondent in this case, the Division of Hearings and Appeals’ notice gave clear instructions and clarified any ambiguity in sub. (1), making the petitioner’s failure to follow the notice unreasonable and dismissal of the petition for judicial review proper. All Star Rent A Car, Inc. v. DOT, 2006 WI 85, 292 Wis. 2d 615, 716 N.W.2d 506, 03-2668. Sub. (1) (b) does not authorize a circuit court to dismiss a petition for judicial review because it does not show the nature of the petitioner’s interest or state a ground for relief under s. 227.57 unless the petitioner has notice of the possibility of dismissal and a reasonable opportunity to request leave to amend the petition. The claimed deficiency must be raised by motion of the respondent and may not be raised by the court sua sponte. Jackson v. LIRC, 2006 WI App 97, 293 Wis. 2d 332, 715 N.W.2d 654, 05-2123. 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. While historically the court has labeled the second prong of the standing test as a “zone of interests” inquiry in line with federal standing principles, this nomenclature has no basis in the text of this section or s. 227.52 and does not accurately de-
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scribe the test the court has consistently applied. The court grounds the decision instead in the well-established formulation for standing to challenge administrative decisions, which requires the alleged injury to adversely affect an interest that the law recognizes or seeks to regulate or protect. Friends of the Black River Forest v. Kohler Co., 2022 WI 52, 402 Wis. 2d 587, 977 N.W.2d 342, 19-0299. Courts have consistently recognized broad environmental interests under s. 1.11, the Wisconsin Environmental Protection Act, for standing purposes. There is no basis for limiting a friends group’s standing based on the group’s “unique relationship” with the Department of Natural Resources as an officially recognized friends group. Friends of Blue Mound State Park v. DNR, 2023 WI App 38, 408 Wis. 2d 763, 993 N.W.2d 788, 22-1127. A petitioner cannot “personally serve” an agency, as an entity, itself. Instead, a petitioner who elects to serve a petition on an agency by personal service under sub. (1) (a) 1. must personally serve an “official of the agency,” which s. 227.01 (7) defines as “a secretary, commissioner or member of a board of an agency,” or a person who is not an official of the agency, but who is nonetheless expressly authorized to accept service on the agency’s behalf. Laughing Cow, LP v. DOR, 2024 WI App 15, 411 Wis. 2d 299, 4 N.W.3d 625, 23-0583. Personal service under sub. (1) (a) 1. requires that papers effecting service of process be physically placed in the hands of the party to be served. In this case, the individual placed the petition in the hands of a tax specialist who was not an “official” of the Department of Revenue (DOR), was not authorized to accept service of papers on DOR’s behalf, and never represented herself to be authorized to accept service on DOR’s behalf. Although the tax specialist did ultimately forward the petition to an individual who was authorized to accept service on DOR’s behalf, that did not constitute personal service upon that individual or DOR. Laughing Cow, LP v. DOR, 2024 WI App 15, 411 Wis. 2d 299, 4 N.W.3d 625, 23-0583. The 30-day deadline in sub. (1) (a) 2m. applies only to “decisions” as specified in s. 227.52. Judicial review of “administrative decisions” under s. 227.52 is distinct from judicial review of “rules” under s. 227.40. As a result, a plaintiff’s rulemaking claim under s. 227.40 (1) is not an action seeking review of an “administrative decision” for the purposes of s. 227.52. Midwest Renewable Energy Ass’n v. PSC, 2024 WI App 34, 412 Wis. 2d 698, 8 N.W.3d 848, 22-0968.
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). History: 1983 a. 27; 1985 a. 182 s. 39; Stats. 1985 s. 227.54; 1987 a. 5; 1997 a. 27, 311; 2007 a. 20, 196; 2009 a. 28.
227.55 Record on review. (1) Within 30 days after service of the petition for review upon the agency, or within such further time as the court allows, the agency in possession of the record for the decision under review shall transmit to the reviewing court the original or a certified copy of the entire record, including all pleadings, notices, testimony, exhibits, findings, decisions, orders, and exceptions, except that by stipulation of all parties to the review proceedings the record may be shortened by eliminating any portion of the record. Any party, other than the agency that is a party, refusing to stipulate to limit the record may be taxed by the court for the additional costs. Except as provided in sub. (2), the record may be typewritten or printed. The exhibits may be typewritten, photocopied, 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. (2) In the case of a record under sub. (1) that is in the possession of the division of hearings and appeals, if any portion of the record is in the form of an audio or video recording, the division may transmit to the reviewing court a copy of that recording in lieu of preparing a transcript, unless the court requests a transcript. History: 1985 a. 182 s. 41; Stats. 1985 s. 227.55; 2017 a. 59. Time provisions under this section are mandatory. Wagner v. Medical Examining Board, 181 Wis. 2d 633, 511 N.W.2d 874 (1994).
227.56 Additional evidence; trial; motion to dismiss; amending petition. (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
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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. (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). (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. History: 1975 c. 414; 1985 a. 182 ss. 41, 57; Stats. 1985 s. 227.56. Section 111.36 (3m) (c) [now s. 111.39 (5) (c)] shows a policy against opening Wisconsin Fair Employment Act proceedings more than one year after the Labor and Industry Review Commission’s final order; a court should not use this chapter 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). 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). 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. 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 is aggrieved. Jackson v. LIRC, 2006 WI App 97, 293 Wis. 2d 332, 715 N.W.2d 654, 05-2123. Hearsay in Administrative Hearings. Maloney. Wis. Law. Sept. 2005.
227.57 Scope of review. (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. (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. (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. (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. (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. (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 ev-
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idence 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. (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. (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. (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. (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. (11) Upon review of an agency action or decision, the court shall accord no deference to the agency’s interpretation of law. (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. 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; 2017 a. 365 s. 110; 2017 a. 369. 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). 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). When a Department of Natural Resources decision under s. 30.12 prohibited a structure and the riparian owner did not seek review under s. 227.20 [now this section], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that the structure was a “pier” permitted under s. 30.13. Kosmatka v. DNR, 77 Wis. 2d 558, 253 N.W.2d 887 (1977). Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wisconsin’s Environmental Decade, Inc. v. PSC, 79 Wis. 2d 161, 255 N.W.2d 917 (1977). “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). An agency determination that an environmental impact statement was adequately prepared is reviewed under s. 227.20 [now this section]. Wisconsin’s Environmental Decade, Inc. v. PSC, 98 Wis. 2d 682, 298 N.W.2d 205 (Ct. App. 1980). Relief from a judgment entered in a review under this chapter 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). 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). Affirmed. 111 Wis. 2d 447, 331 N.W.2d 331 (1983). 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). 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). 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. Department of Regulation & Licensing, 159 Wis. 2d 402, 464 N.W.2d 111 (Ct. App. 1990).
May 22, 2026, are designated by NOTES. (Published 5-22-26)
227.57
ADMINISTRATIVE PROCEDURE
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). 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). 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). 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 449 (Ct. App. 1996), 95-0797. 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. 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. 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. 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. 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 are 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. 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. 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. Due process does not disqualify an agency as a decision maker merely because of familiarity with the facts of a 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). 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). The Standards of Review for Agency Interpretation of Statutes in Wisconsin. Massa. 83 MLR 597 (2000). The Scope of Judicial Review of Administrative Agency Decisions in Wisconsin. Hewitt. 1973 WLR 554. The Standard of Review of Administrative Rules in Wisconsin. Zabrowski. 1982 WLR 691. When Roles Collide: Deference, Due Process, and the Judicial Dilemma. Buchmeyer. 2019 WLR 1589.
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). History: 1977 c. 187 s. 134; 1983 a. 219; 1985 a. 182 s. 41; Stats. 1985 s. 227.58. 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] The court of appeals had no power to remand a case under s. 806.07 (1) (b) or (h);
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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). 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 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. 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 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. History: 1977 c. 187; 1983 a. 219; 1985 a. 182 s. 49; Stats. 1985 s. 227.60. 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]
May 22, 2026, are designated by NOTES. (Published 5-22-26)