Chapter 227

227.26(4) (4) Repeal of unauthorized rules.

227.26(4)(a) (a) In this subsection, “unauthorized rule” means a rule that an agency lacks the authority to promulgate due to the repeal or amendment of the law that previously authorized its promulgation.

227.26(4)(b) (b) Notwithstanding ss. 227.114 to 227.117 and 227.135 to 227.19, an agency that promulgated or that otherwise administers a rule that the agency determines is an unauthorized rule shall petition the joint committee for review of administrative rules for authorization to repeal that rule by using the following process:

227.26(4)(b)1. 1. The agency shall submit a petition with a proposed rule that repeals the rule the agency has determined is an unauthorized rule to the legislative council staff for review. The proposed rule shall be in the form required under s. 227.14 (1) and shall include the material required under s. 227.14 (2) (a) 1., 2., and 7. and a statement that the agency is petitioning the joint committee for review of administrative rules to use the process under this subsection to repeal a rule the agency has determined to be an unauthorized rule. The agency shall also send an electronic copy of the petition and the proposed rule to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register.

227.26(4)(b)2. 2. The legislative council staff shall review the petition and proposed rule in accordance with s. 227.15 (2) and submit to the joint committee for review of administrative rules the petition and proposed rule with a written report including a statement of its determination as to whether the proposed rule proposes to repeal an unauthorized rule. The legislative council staff shall send the agency a copy of its report with an indication of the date on which the petition and proposed rule were submitted to the committee.

227.26(4)(b)3. 3. Following receipt of the petition and proposed rule submitted by the legislative council staff under subd. 2., the joint committee for review of administrative rules shall review the petition and proposed rule and may do any of the following:

227.26(4)(b)3.a. a. Approve the agency’s petition if the committee determines that the proposed rule would repeal an unauthorized rule.

227.26(4)(b)3.b. b. Deny the agency’s petition.

227.26(4)(b)3.c. c. Request that the agency make changes to the proposed rule and resubmit the petition and proposed rule under subd. 1.

227.26(4)(b)4. 4. The committee shall inform the agency in writing of its decision as to the petition.

227.26(4)(c) (c) If the joint committee for review of administrative rules approves a petition to repeal an unauthorized rule as provided in par. (b) 3. a., the agency shall promulgate the proposed rule by filing a certified copy of the rule with the legislative reference bureau under s. 227.20, together with a copy of the committee’s decision.

227.26 History History: 1985 a. 182 ss. 1, 3, 50; 1987 a. 186; 2005 a. 249; 2017 a. 108, 369.

227.26 Annotation Rule suspension under sub. (2) (d) does not violate the separation of powers doctrine. Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992). See also Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

227.26 Annotation In this case, the facial challenge to sub. (2) (im) failed. If one three-month suspension was constitutionally permissible, two three-month suspensions were as well. Under such a scenario, the six-month, rather than three-month, delay was still followed by acceptance of the rule or repeal through bicameral passage and presentment. That fit comfortably within the unchallenged reasoning of Martinez, 165 Wis. 2d 687 (1992)—a modest suspension that was temporary in nature. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

227.26 Annotation A collective bargaining agreement between the regents and the teaching assistants association is not subject to review by the committee. 59 Atty. Gen. 200.

227.26 Annotation In giving notice of public hearings held under sub. (2), the committee should concurrently employ the various forms of notice available that best fit the particular circumstances. 62 Atty. Gen. 299.

227.26 Annotation If an administrative rule is properly adopted and is within the power of the legislature to delegate there is no material difference between it and a law. No law, including a valid rule can be revoked by a joint resolution of the legislature as such a resolution deprives the executive its power to veto an act of the legislature. 63 Atty. Gen. 159.

227.26 Annotation Legislative Committee Review of Administrative Rules in Wisconsin. Bunn & Gallagher. 1977 WLR 935.

227.265 227.265 Repeal or modification of rules. If a bill to repeal or modify a rule is enacted, the procedures under ss. 227.114 to 227.21 and 227.26 do not apply. Instead, the legislative reference bureau shall publish the repeal or modification in the Wisconsin administrative code and register as required under s. 35.93, and the repeal or modification shall take effect as provided in s. 227.22.

227.265 History History: 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363.

227.27 227.27 Construction of administrative rules.

227.27(1) (1) In construing rules, ss. 990.001, 990.01, 990.03 (1), (2) and (4), 990.04 and 990.06 apply in the same manner in which they apply to statutes, except that ss. 990.001 and 990.01 do not apply if the construction would produce a result that is inconsistent with the manifest intent of the agency.

227.27(2) (2) The code shall be prima facie evidence in all courts and proceedings as provided by s. 889.01, but this does not preclude reference to or, in case of a discrepancy, control over a rule filed with the legislative reference bureau under s. 227.20 or modified under s. 227.265, and the certified copy of a rule shall also and in the same degree be prima facie evidence in all courts and proceedings.

227.27 History History: 1983 a. 544; 1985 a. 182 ss. 22, 55 (2), (3); Stats. 1985 s. 227.27; 2005 a. 249; 2007 a. 20; 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363.

227.27 Annotation When interpreting administrative regulations, a court uses the same rules of interpretation as the court applies to statutes. DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311, 05-0544.

227.27 Annotation An administrative agency’s interpretation of its own rules or regulations is controlling unless plainly erroneous or inconsistent with the regulations. For an agency’s interpretation of its own rules or regulations, if the interpretation is reasonable and consistent with the intended purpose, a court generally applies either “controlling weight” or “great weight” deference. DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311, 05-0544. But see Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, 15-2019.

227.29 227.29 Agency review of rules and enactments.

227.29(1) (1) By March 31 of each odd-numbered year, each agency with any rules published in the code shall submit a report to the joint committee for review of administrative rules listing all of the following rules promulgated or otherwise administered by that agency:

227.29(1)(a) (a) Unauthorized rules, as defined in s. 227.26 (4) (a), together with a description of the legislation that eliminated the agency’s authority to promulgate any such rule.

227.29(1)(b) (b) Rules for which the authority to promulgate has been restricted, together with a description of the legislation that restricted that authority.

227.29(1)(c) (c) Rules that are obsolete or that have been rendered unnecessary, together with a description of why those rules are obsolete or have been rendered unnecessary.

227.29(1)(d) (d) Rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a citation to or the text of any such statute, regulation, or ruling.

227.29(1)(e) (e) Rules that the agency determines are economically burdensome.

227.29(2) (2) The report under sub. (1) shall also include all of the following:

227.29(2)(a) (a) A description of the agency’s actions, if any, to address each rule listed in the report. If the agency has not taken any action to address a rule listed in the report, the agency shall include an explanation for not taking action.

227.29(2)(b) (b) A description of the status of each rule listed in the previous year’s report not otherwise listed.

227.29(2)(c) (c) If the agency determines that there is no rule as described under sub. (1) (a), (b), (c), (d), or (e), a statement of that determination.

227.29(3) (3) If an agency identifies an unauthorized rule under sub. (1) (a) and is not otherwise in the process of promulgating a rule that repeals the unauthorized rule, the agency shall, within 30 days after the agency submits the report, submit a petition to the legislative council staff under s. 227.26 (4) (b) 1. to repeal the unauthorized rule if the agency has not previously done so.

227.29(4) (4) 

227.29(4)(a) (a) In this subsection, “enactment” means an act or a portion of an act that is required to be published under s. 35.095 (3) (a).

227.29(4)(b) (b) Each agency shall review enactments to determine whether any part of an enactment does any of the following:

227.29(4)(b)1. 1. Eliminates or restricts the agency’s authority to promulgate any rules promulgated or otherwise administered by that agency.

227.29(4)(b)2. 2. Renders any rules promulgated or otherwise administered by that agency obsolete or unnecessary.

227.29(4)(b)3. 3. Renders, for any reason, any rules promulgated or otherwise administered by that agency not in conformity with or superseded by a state statute, including due to statutory numbering or terminology changes in the enactment.

227.29(4)(b)4. 4. Requires or otherwise necessitates rule making by the agency.

227.29(4)(c) (c) If an agency determines that any consequence specified in par. (b) 1. to 4. results from an enactment or part of an enactment, within 6 months after the applicable effective date for the enactment or part of the enactment, the agency shall do one or more of the following, as applicable, to address the consequence identified by the agency and notify the joint committee for review of administrative rules of its action:

227.29(4)(c)1. 1. Submit a statement of the scope of a proposed rule under s. 227.135 (2), unless the enactment requires otherwise or unless the agency submits a notice to the committee explaining why it is unable to submit the statement of scope within that time period and an estimate of when the agency plans to submit the statement of scope.

227.29(4)(c)2. 2. In the case of an affected rule that the agency determines is an unauthorized rule, as defined in s. 227.26 (4) (a), submit a petition to the legislative council staff under s. 227.26 (4) (b) 1.

227.29(4)(c)3. 3. In the case of a consequence specified under par. (b) 3. that can be addressed by the legislative reference bureau using its authority under s. 13.92 (4) (b), submit a request to the legislative reference bureau to use that authority.

227.29 History History: 2017 a. 108.

227.30 227.30 Review of administrative rules or guidelines.

227.30(1) (1) The small business regulatory review board may review the rules and guidelines of any agency to determine whether any of those rules or guidelines place an unnecessary burden on the ability of small businesses, as defined in s. 227.114 (1), to conduct their affairs. If the board determines that a rule or guideline places an unnecessary burden on the ability of a small business to conduct its affairs, the board shall submit a report and recommendations regarding the rule or guideline to the joint committee for review of administrative rules and to the agency.

227.30(2) (2) When reviewing the report, the joint committee for review of administrative rules shall consider all of the following:

227.30(2)(a) (a) The continued need for the rule or guideline.

227.30(2)(b) (b) The nature of the complaints and comments received from the public regarding the rule or guideline.

227.30(2)(c) (c) The complexity of the rule or guideline.

227.30(2)(d) (d) The extent to which the rule or guideline overlaps, duplicates, or conflicts with federal regulations, other state rules, or local ordinances.

227.30(2)(e) (e) The length of time since the rule or guideline has been evaluated.

227.30(2)(f) (f) The degree to which technology, economic conditions, or other factors have changed in the subject area affected by the rule or guideline since the rule or guideline was promulgated.

227.30(3) (3) The joint committee for review of administrative rules may refer the report regarding the rule or guideline to the presiding officer of each house of the legislature for referral to a committee under s. 227.19 (2) or may review the rule or guideline as provided under s. 227.26.

227.30 History History: 2003 a. 145; 2005 a. 249.

subch. III of ch. 227 SUBCHAPTER III

ADMINISTRATIVE ACTIONS AND JUDICIAL REVIEW

Subch. III of ch. 227 Cross-reference Cross-reference: See also ch. NR 2, Wis. adm. code.

227.40 227.40 Declaratory judgment proceedings.

227.40(1) (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule or guidance document shall be an action for declaratory judgment as to the validity of the rule or guidance document brought in the circuit court for the county where the party asserting the invalidity of the rule or guidance document resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose. The officer or other agency whose rule or guidance document is involved shall be the party defendant. The summons in the action shall be served as provided in s. 801.11 (3) and by delivering a copy to that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency or to any member of the agency. The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question.

227.40(2) (2) The validity of a rule or guidance document may be determined in any of the following judicial proceedings when material therein:

227.40(2)(a) (a) Any civil proceeding by the state or any officer or agency thereof to enforce a statute or to recover thereunder, provided such proceeding is not based upon a matter as to which the opposing party is accorded an administrative review or a judicial review by other provisions of the statutes and such opposing party has failed to exercise such right to review so accorded.

227.40(2)(b) (b) Criminal prosecutions.

227.40(2)(c) (c) Proceedings or prosecutions for violations of county or municipal ordinances.

227.40(2)(d) (d) Habeas corpus proceedings relating to criminal prosecution.

227.40(2)(e) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and orders of administrative agencies if the validity of the rule or guidance document involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.

227.40(2)(f) (f) Proceedings under s. 227.114 (6m).

227.40(3) (3) 

227.40(3)(ag) (ag) In any judicial proceeding other than one under sub. (1) or (2), in which the invalidity of a rule or guidance document is material to the cause of action or any defense thereto, the assertion of that invalidity shall be set forth in the pleading of the party maintaining the invalidity of the rule or guidance document in that proceeding. The party asserting the invalidity of the rule or guidance document shall, within 30 days after the service of the pleading in which the party sets forth the invalidity, apply to the court in which the proceedings are had for an order suspending the trial of the proceeding until after a determination of the validity of the rule or guidance document in an action for declaratory judgment under sub. (1).

227.40(3)(ar) (ar) Upon the hearing of the application, if the court is satisfied that the validity of the rule or guidance document is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of the rule or guidance document. If the court finds that the asserted invalidity of the rule or guidance document is not material to the case, an order shall be entered denying the application for stay.

227.40(3)(b) (b) Upon the entry of a final order in the declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule or guidance document to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule or guidance document is asserted.

227.40(3)(c) (c) Failure to set forth the invalidity of a rule or guidance document in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to the order of the court or to prosecute the declaratory judgment action without undue delay shall preclude the party from asserting or maintaining that the rule or guidance document is invalid.

227.40(4) (4) 

227.40(4)(a) (a) In any proceeding pursuant to this section for judicial review of a rule or guidance document, the court shall declare the rule or guidance document invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated or adopted without compliance with statutory rule-making or adoption procedures.

227.40(4)(b) (b) Notwithstanding s. 227.54, in any proceeding under this section for judicial review of a rule, a court may not restrain, enjoin or suspend enforcement of the rule during the course of the proceeding on the basis of the alleged failure of the agency promulgating the rule to comply with s. 227.114.

227.40(4)(c) (c) Notwithstanding par. (a), if a court finds that an agency did not adequately comply with s. 227.114, the court may not declare the rule invalid on that basis but shall order the agency to comply with that section and to propose any amendments to the rule that are necessary within a time specified by the court. Unless the legislature acts under s. 227.26 (2) to suspend the rule, the rule remains in effect while the agency complies with the order.

227.40(5) (5) The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.

227.40(6) (6) Upon entry of a final order in a declaratory judgment action under sub. (1) with respect to a rule, the court shall send an electronic notice to the legislative reference bureau of the court’s determination as to the validity or invalidity of the rule, in a format approved by the legislative reference bureau, and the legislative reference bureau shall publish a notice of that determination in the Wisconsin administrative register under s. 35.93 (2) and insert an annotation of that determination in the Wisconsin administrative code under s. 13.92 (4) (a).

227.40 History History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1977 c. 29, 449; 1981 c. 278 s. 6; 1983 a. 90; 1983 a. 191 s. 6; 1985 a. 182 ss. 26, 55 (1), 57; Stats. 1985 s. 227.40; 1987 a. 403 s. 256; 1989 a. 31; 1991 a. 316; 1995 a. 27; 1999 a. 82; 2003 a. 145; 2005 a. 249; 2011 a. 21; 2013 a. 20; 2015 a. 197 s. 51; 2017 a. 369.

227.40 Annotation The plaintiff could not bring a declaratory judgment action under sub. (1) since it could contest the validity of a rule in an action brought against the plaintiff under sub. (2). Phillips Plastics Corp. v. DNR, 98 Wis. 2d 524, 297 N.W.2d 69 (Ct. App. 1980).

227.40 Annotation Establishing pleading requirements for challenging administrative rules. Discussing the record for judicial review and the scope of judicial review. Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368, 401 N.W.2d 805 (1987).

227.40 Annotation A failure to comply with this section prevented the trial court from acquiring jurisdiction. Harris v. Reivitz, 142 Wis. 2d 82, 417 N.W.2d 50 (Ct. App. 1987).

227.40 Annotation Under sub. (5), the plaintiff must serve the Joint Committee for Review of Administrative Rules within 60 days of filing, pursuant to s. 893.02. Richards v. Young, 150 Wis. 2d 549, 441 N.W.2d 742 (1989).