Chapter 227

227.41 Annotation When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).

227.41 Annotation Res judicata does not apply to administrative agency proceedings, but this section requires internal consistency within a proceeding by binding the agency within that proceeding to its own declaratory ruling. Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981).

227.41 Annotation This section does not provide a method for review of a determination already made by the agency, but only a method for requesting an agency to make a determination. Therefore, this section could not be used by prisoners to challenge the Department of Corrections’ dismissal of their complaint under the inmate complaint review system. Aiello v. Litscher, 104 F. Supp. 2d 1068 (2000).

227.42 227.42 Right to hearing.

227.42(1) (1) In addition to any other right provided by law, any person filing a written request with an agency for hearing shall have the right to a hearing which shall be treated as a contested case if:

227.42(1)(a) (a) A substantial interest of the person is injured in fact or threatened with injury by agency action or inaction;

227.42(1)(b) (b) There is no evidence of legislative intent that the interest is not to be protected;

227.42(1)(c) (c) The injury to the person requesting a hearing is different in kind or degree from injury to the general public caused by the agency action or inaction; and

227.42(1)(d) (d) There is a dispute of material fact.

227.42(2) (2) Any denial of a request for a hearing shall be in writing, shall state the reasons for denial, and is an order reviewable under this chapter. If the agency does not enter an order disposing of the request for hearing within 20 days from the date of filing, the request shall be deemed denied as of the end of the 20-day period.

227.42(3) (3) This section does not apply to rule-making proceedings or rehearings, or to actions where hearings at the discretion of the agency are expressly authorized by law.

227.42(5) (5) Except as provided under s. 289.27 (1), this section does not apply to any part of the process for approving a feasibility report, plan of operation or license under subch. III of ch. 289 or s. 291.23, 291.25, 291.29 or 291.31, any decision by the department of natural resources relating to the environmental impact of a proposed action under ch. 289 or 291 or ss. 292.31 and 292.35, or any part of the process of negotiation and arbitration under s. 289.33.

227.42(6) (6) This section does not apply to a decision issued or a hearing conducted under s. 291.87.

227.42 History History: 1975 c. 414; 1977 c. 418; Stats. 1977 s. 227.064; 1979 c. 221; 1981 c. 374; 1983 a. 298; 1985 a. 182 s. 28; Stats. 1985 s. 227.42; 1995 a. 227; 2009 a. 219; 2013 a. 20; 2013 a. 116 s. 31; 2017 a. 134.

227.42 Annotation A person who satisfies the conditions under sub. (1) is entitled to a hearing whether or not that person has any “other right provided by law.” Milwaukee Metropolitan Sewerage District v. DNR, 126 Wis. 2d 63, 375 N.W.2d 649 (1985).

227.42 Annotation 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).

227.42 Annotation Sub. (1) does not grant the right to a contested case hearing regarding the need for an environmental impact statement. North Lake Management District v. DNR, 182 Wis. 2d 500, 513 N.W.2d 703 (Ct. App. 1994).

227.42 Annotation Sub. (1) (d) provides authority for agencies to develop appropriate summary disposition procedures if there are no disputes of material fact. Balele v. Wisconsin Personnel Commission, 223 Wis. 2d 739, 589 N.W.2d 418 (Ct. App. 1998), 98-1432.

227.42 Annotation When an ALJ’s decision did not provide notice of the 30-day time period under s. 227.53 (1) (a) 2. for petitioning for judicial review in a contested case, the six-month default limitation adopted under Hedrich, 2001 WI App 228, applied. Habermehl Electric, Inc. v. DOT, 2003 WI App 39, 260 Wis. 2d 466, 659 N.W.2d 463, 02-1573.

227.42 Annotation Sub. (1) does not provide that a single factual dispute related to one issue entitles the party to a contested case hearing on every issue raised by the party. The only reasonable interpretation of sub. (1) is that a petitioner is entitled to a contested case hearing only on those specific issues that involve disputes of material fact. Haase-Hardie v. DNR, 2014 WI App 103, 357 Wis. 2d 442, 855 N.W.2d 443, 13-2827.

227.42 Annotation Milwaukee Metropolitan Sewerage District v. DNR: Expanding the Scope of State Agency Actions Covered by Contested Case Hearings. Donius. 1986 WLR 963.

227.43 227.43 Division of hearings and appeals.

227.43(1) (1) The administrator of the division of hearings and appeals in the department of administration shall:

227.43(1)(a) (a) Serve as the appointing authority of all hearing examiners under s. 230.06.

227.43(1)(b) (b) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of natural resources and which is not conducted by the secretary of natural resources.

227.43(1)(bd) (bd) Assign a hearing examiner to preside over any hearing of a contested case which is referred by the state superintendent under s. 118.134 (1).

227.43(1)(bg) (bg) Assign a hearing examiner to preside over any hearing or review under ss. 84.30 (18), 84.305, 84.31 (6) (a), 85.013 (1), 86.073 (3), 86.16 (5), 86.195 (9) (b), 86.32 (1), 101.935 (2) (b), 101.951 (7) (a) and (b), 114.134 (4) (b), 114.135 (9), 114.20 (19), 175.05 (4) (b), 194.145 (1), 194.46, 218.0114 (7) (d) and (12) (b), 218.0116 (2), (4), (7) (a), (8) (a) and (10), 218.0131 (3), 218.11 (7) (a) and (b), 218.22 (4) (a) and (b), 218.32 (4) (a) and (b), 218.41 (4), 218.51 (5) (a) and (b), 341.09 (2m) (d), 342.26, 343.69, 348.105 (5) (h), and 348.25 (9).

227.43(1)(bm) (bm) Assign a hearing examiner to preside over any hearing or review of a worker’s compensation claim or other dispute under ch. 102.

227.43(1)(br) (br) Assign a hearing examiner to preside over any hearing of a contested case which is required to be conducted by the department of transportation and which is not conducted by the secretary of transportation.

227.43(1)(bu) (bu) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of health services and that is not conducted by the secretary of health services.

227.43(1)(by) (by) Assign a hearing examiner to preside over any hearing of a contested case that is required to be conducted by the department of children and families under ch. 48 or subch. III of ch. 49 and that is not conducted by the secretary of children and families.

227.43(1)(c) (c) Supervise hearing examiners in the conduct of the hearing and the rendering of a decision, if a decision is required.

227.43(1)(d) (d) Promulgate rules relating to the exercise of the administrator’s and the division’s powers and duties under this section.

227.43(1g) (1g) The administrator of the division of hearings and appeals shall establish a system for assigning hearing examiners to preside over any hearing under this section. The system shall ensure, to the extent practicable, that hearing examiners are assigned to different subjects on a rotating basis. The system may include the establishment of pools of examiners responsible for certain subjects.

227.43(1m) (1m) Upon the request of an agency that is not prohibited from contracting with a 3rd party for contested case hearing services, the administrator of the division of hearings and appeals in the department of administration may contract with the agency to provide the contested case hearing services and may assign a hearing examiner to preside over any hearing performed under such a contract.

227.43(2) (2) 

227.43(2)(a) (a) The department of natural resources shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under sub. (1) (b) after the department of natural resources is notified that a hearing on the matter is required.

227.43(2)(am) (am) The department of workforce development shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under sub. (1) (bm) after the department of workforce development is notified that a hearing on the matter is required.

227.43(2)(b) (b) The department of transportation shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under sub. (1) (br) after the department of transportation is notified that a hearing on the matter is required.

227.43(2)(c) (c) The department of health services shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under sub. (1) (bu) after the department of health services is notified that a hearing on the matter is required.

227.43(2)(d) (d) The department of children and families shall notify the division of hearings and appeals of every pending hearing to which the administrator of the division is required to assign a hearing examiner under sub. (1) (by) after the department of children and families is notified that a hearing on the matter is required.

227.43(3) (3) 

227.43(3)(a) (a) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of natural resources by a hearing examiner under this section. The fee shall cover the total cost of the services.

227.43(3)(b) (b) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of transportation by a hearing examiner under this section. The fee shall cover the total cost of the services.

227.43(3)(bm) (bm) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of workforce development by a hearing examiner under this section. The fee shall cover the total cost of the services.

227.43(3)(br) (br) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of public instruction by a hearing examiner under this section. The fee shall cover the total cost of the services.

227.43(3)(c) (c) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of health services by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.

227.43(3)(d) (d) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the department of children and families by a hearing examiner under this section in a manner consistent with a federally approved allocation methodology. The fees shall cover the total cost of the services.

227.43(3)(e) (e) The administrator of the division of hearings and appeals may set the fees to be charged for any services contracted for under sub. (1m).

227.43(4) (4) 

227.43(4)(a) (a) The department of natural resources shall pay all costs of the services of a hearing examiner assigned to the department under sub. (1) (b), according to the fees set under sub. (3) (a).

227.43(4)(b) (b) The department of transportation shall pay all costs of the services of a hearing examiner assigned under sub. (1) (bg) or assigned to the department under sub. (1) (br), according to the fees set under sub. (3) (b).

227.43(4)(bm) (bm) The department of workforce development shall pay all costs of the services of a hearing examiner assigned under sub. (1) (bm), according to the fees set under sub. (3) (bm).

227.43(4)(br) (br) The department of public instruction shall pay all costs of the services of a hearing examiner, including support services, assigned under sub. (1) (bd), according to the fees set under sub. (3) (br).

227.43(4)(c) (c) The department of health services shall pay all costs of the services of a hearing examiner, including support services, assigned under sub. (1) (bu), according to the fees set under sub. (3) (c).

227.43(4)(d) (d) The department of children and families shall pay all costs of the services of a hearing examiner, including support services, assigned under sub. (1) (by), according to the fees set under sub. (3) (d).

227.43(4)(e) (e) The agency contracting out for contested case hearing services under sub. (1m) shall pay all costs of the services of a hearing examiner, including support services, assigned under sub. (1m), according to the fees set under sub. (3) (e).

227.43 History History: 1977 c. 418; 1981 c. 20 s. 2202 (1) (b); 1983 a. 27; 1985 a. 182 ss. 16 to 18, 29, 31; Stats. 1985 s. 227.43; 1993 a. 16; 1995 a. 370; 1997 a. 3, 27; 1999 a. 9, 31, 185, 186; 2003 a. 118; 2005 a. 465; 2007 a. 20 ss. 2998 to 3001, 9121 (6) (a); 2013 a. 115; 2015 a. 55, 137.

227.43 Cross-reference Cross-reference: See also HA, Wis. adm. code.

227.44 227.44 Contested cases; notice; parties; hearing; records.

227.44(1) (1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Except in the case of an emergency, reasonable notice shall consist of mailing notice to known interested parties at least 10 days prior to the hearing.

227.44(2) (2) The notice shall include:

227.44(2)(a) (a) A statement of the time, place, and nature of the hearing, including whether the case is a class 1, 2 or 3 proceeding.

227.44(2)(b) (b) A statement of the legal authority and jurisdiction under which the hearing is to be held, and, in the case of a class 2 proceeding, a reference to the particular statutes and rules involved.

227.44(2)(c) (c) A short and plain statement of the matters asserted. If the matters cannot be stated with specificity at the time the notice is served, the notice may be limited to a statement of the issues involved.

227.44(2)(d) (d) If the subject of the hearing is a decision of the department of natural resources or the department of transportation, the name and title of the person who will conduct the hearing.

227.44(2m) (2m) Any person whose substantial interest may be affected by the decision following the hearing shall, upon the person’s request, be admitted as a party.

227.44(3) (3) Opportunity shall be afforded all parties to present evidence and to rebut or offer countervailing evidence.

227.44(4) (4) 

227.44(4)(a) (a) In any action to be set for hearing, the agency or hearing examiner may direct the parties to appear before it for a conference to consider:

227.44(4)(a)1. 1. The clarification of issues.

227.44(4)(a)2. 2. The necessity or desirability of amendments to the pleadings.

227.44(4)(a)3. 3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof.

227.44(4)(a)4. 4. The limitation of the number of witnesses.

227.44(4)(a)5. 5. Such other matters as may aid in the disposition of the action.

227.44(4)(b) (b) The agency or hearing examiner presiding at a conference under this subsection shall make a memorandum for the record which summarizes the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements of the parties. Such memorandum shall control the subsequent course of the action, unless modified at the hearing to prevent manifest injustice.

227.44(5) (5) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. In any proceeding in which a hearing is required by law, if there is no such hearing, the agency or hearing examiner shall record in writing the reason why no such hearing was held, and shall make copies available to interested persons.

227.44(6) (6) The record in a contested case shall include:

227.44(6)(a) (a) All applications, pleadings, motions, intermediate rulings and exhibits and appendices thereto.

227.44(6)(b) (b) Evidence received or considered, stipulations and admissions.

227.44(6)(c) (c) A statement of matters officially noticed.

227.44(6)(d) (d) Questions and offers of proof, objections, and rulings thereon.

227.44(6)(e) (e) Any proposed findings or decisions and exceptions.

227.44(6)(f) (f) Any decision, opinion or report by the agency or hearing examiner.

227.44(7) (7) All staff memoranda and staff data, not admitted as evidence in a contested case, which are submitted to the hearing examiner or officials of the agency in connection with their consideration of the case, are not part of the official record but shall be made a part of the file and shall be served on all parties. Any party may, within 10 days of service of such memoranda or data, submit comments thereon to the examiner or officials and such comments shall also be served on all parties and placed in the file.

227.44(8) (8) A stenographic, electronic or other record of oral proceedings shall be made in any class 2 or class 3 proceeding and in any class 1 proceeding when requested by a party. Each agency may establish rules relating to the transcription of the record into a written transcript and the providing of free copies of the written transcript. Rules may require a purpose for transcription which is deemed by the agency to be reasonable, such as appeal, and if this test is met to the satisfaction of the agency, the record shall be transcribed at the agency’s expense, except that in preparing the record for judicial review of a decision that was made in an appeal under s. 227.47 (2) or in an arbitration proceeding under s. 292.63 (6s) or 230.44 (4) (bm) the record shall be transcribed at the expense of the party petitioning for judicial review. Rules may require a showing of impecuniousness or financial need as a basis for providing a free copy of the transcript, otherwise a reasonable compensatory fee may be charged. If any agency does not promulgate such rules, then it must transcribe the record and provide free copies of written transcripts upon request. In any event, an agency shall not refuse to provide a written transcript if the person making the request pays a reasonable compensatory fee for the transcription and for the copy. This subsection does not apply where a transcript fee is specifically provided by law.

227.44(9) (9) The factual basis of the decision shall be solely the evidence and matters officially noticed.

227.44 History History: 1975 c. 414; 1977 c. 26, 418; 1985 a. 182 ss. 32, 52, 55 (1); Stats. 1985 s. 227.44; 1993 a. 16; 1997 a. 237; 2003 a. 33, 118; 2013 a. 20.

227.44 Cross-reference Cross-reference: See also ch. HA 1, Wis. adm. code.