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
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
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
An order of the Employment Relations Commission directing an election and determining the bargaining unit under s. 111.70 (4) (d) is not reviewable. West Allis v. WERC, 72 Wis. 2d 268
, 240 N.W.2d 416
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
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
In Ashwaubenon v. Public Service Commission
, 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
A court order setting aside an administrative order and remanding the case to the administrative agency was appealable as of right. Bearns v. DILHR, 102 Wis. 2d 70
, 306 N.W.2d 22
Because an appointment to office was an administrative decision, a challenge of 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
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
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
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 the 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 this section. The substantial evidence standard under s. 227.57 (6) therefore applied with respect to review of the PSC's findings of fact underlying the 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
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
, ___ Wis. 2d ___, 964 N.W.2d 342
Administrative Decisions Eligible for Judicial Review in Wisconsin. Klitzke. 61 MLR 405 (1978).
Parties and proceedings for review. 227.53(1)(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:
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.
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.
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.
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.
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:
The tax appeals commission, the department of revenue.
The credit union review board, the office of credit unions.
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.
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.
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.
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.
The circuit court had no 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
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
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 denying rehearing within 30 days. Town of Caledonia v. PSC, 56 Wis. 2d 720
, 202 N.W.2d 912
A failure to strictly comply with the caption requirements of sub. (1) does not divest a court of jurisdiction if all other jurisdictional requirements are met. Evans v. DLAD, 62 Wis. 2d 622
, 215 N.W.2d 408
When the taxpayer failed to serve a copy of his 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. Cudahy v. DOR, 66 Wis. 2d 253
, 224 N.W.2d 570
The implied authority of the Public Service Commission 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 commission order in the future adequacy of their service that was sufficient to provide standing to challenge the commission'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
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. Dane County v. DHSS, 79 Wis. 2d 323
, 255 N.W.2d 539
“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
Service on a department rather than on a specific division within the department was sufficient notice under this section. Sunnyview Village v. DOA, 104 Wis. 2d 396
, 311 N.W.2d 632
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
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
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).
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).
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
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 a 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
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
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
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
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
, and 448.02 (9)
Record on review. 227.55(1)(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.
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
; Stats. 1985 s. 227.55; 2017 a. 59
Additional evidence; trial; motion to dismiss; amending petition. 227.56(1)(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 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.
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)
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
; Stats. 1985 s. 227.56.
Section 111.36 (3m) (c) [now s. 111.39 (5) (c)] shows a policy against opening Fair Employment proceedings more than one year after the 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
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 was aggrieved. Jackson v. LIRC, 2006 WI App 97
, 293 Wis. 2d 332
, 715 N.W.2d 654
Hearsay in Administrative Hearings. Maloney. Wis. Law. Sept. 2005.
Scope of review. 227.57(1)(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.
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.
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.
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.
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.
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 evidence 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.
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.
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.
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.
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.
Upon review of an agency action or decision, the court shall accord no deference to the agency's interpretation of law.
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.
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
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
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 structure was a permitted “pier" under s. 30.13. Kosmatka v. DNR, 77 Wis. 2d 558
, 253 N.W.2d 887
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
“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
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).