2017 Wisconsin Statutes & Annotations
Chapter 227. Administrative procedure and review.
227.42 Right to hearing.

Universal Citation: WI Stat § 227.42 (2017)

227.42 Right to hearing.

(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:

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

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

(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

(d) There is a dispute of material fact.

(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.

(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.

(4) This section does not apply if a hearing on the matter was conducted as a part of a hearing under s. 293.43.

NOTE: Sub. (4) is repealed eff. 7-1-18 by 2017 Wis. Act 134.

(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.

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

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.

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).

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).

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).

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.

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 6-month default limitation adopted under Hedrich v. Board of Regents, 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.

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. Department of Natural Resources, 2014 WI App 103, 357 Wis. 2d 442, 855 N.W.2d 443, 13-2827

Milwaukee Metropolitan Sewerage District v. DNR: Expanding the scope of state agency actions covered by contested case hearings. 1986 WLR 963.

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