2017 Wisconsin Statutes & Annotations
Chapter 227. Administrative procedure and review.
227.53 Parties and proceedings for review.
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:
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 review board, the credit union review board, or the savings institutions 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.
(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.
2. The banking review board, the division of banking.
3. The credit union review board, the office of credit unions.
4. The savings institutions review board, the division of banking, except if the petitioner is the division of banking, the prevailing parties before the savings 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 review board, the credit union review board, and the savings institutions 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.
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 (1970).
Service on the department 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 PSC 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 (1973).
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 (1974).
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 (1974).
The implied authority of the 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 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 (1975).
A county had standing to challenge the validity of a rule not adopted in conformity with ss. 227.02 through 227.025, 1983 stats. Dane County v. DHSS, 79 Wis. 2d 323, 255 N.W.2d 539 (1977).
“Parties" under sub. (1) (c), 1975 stats., are those persons affirmatively demonstrating active interest in the proceedings. It was incumbent upon the PSC to identify those parties. Wisconsin's Environmental Decade, Inc. v. PSC, 84 Wis. 2d 504, 267 N.W.2d 609 (1978).
Chapter 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 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 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).
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. State Medical Examining Board, 181 Wis. 2d 633, 511 N.W.2d 874 (1994).
In the case of a ch. 227 petition for review, 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. State 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 5 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 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. Wisconsin Department of Revenue, 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, DHA's 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. Department of Transportation, 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.