2017 Wisconsin Statutes & Annotations
Chapter 227. Administrative procedure and review.
227.57 Scope of review.

Universal Citation: WI Stat § 227.57 (2017)

227.57 Scope of review.

(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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(10) 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.

(11) Upon review of an agency action or decision affecting a property owner's use of the property owner's property, the court shall accord no deference to the agency's interpretation of law if the agency action or decision restricts the property owner's free use of the property owner's property.

NOTE: Sub. (11) was created as sub. (11) (a) by 2015 Wis. Act 391 and renumbered to sub. (11) by the legislative reference bureau under s. 13.92 (1) (bm) 2.

(12) 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.

History: 1975 c. 94 s. 3; 1975 c. 414; 1979 c. 208; 1985 a. 182 s. 41; Stats. 1985 s. 227.57; 2015 a. 391; s. 13.92 (1) (bm) 2.

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 (1976).

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 (1977).

When a DNR decision under s. 30.12 prohibited a structure and the riparian owner did not seek review under s. 227.20 [now 227.57], 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 (1977).

Summary judgment procedure is not authorized in proceedings for judicial review under this chapter. Wis. Environmental Decade v. PSC, 79 Wis. 2d 161, 255 N.W.2d 917 (1977).

“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 (1977).

An agency determination that an environmental impact statement was adequately prepared is reviewed under s. 227.20 [now s. 227.57]. Wisconsin's Environmental Decade, Inc. v. PSC, 98 Wis. 2d 682, 298 N.W.2d 205 (Ct. App. 1980).

Relief from a judgment entered in a ch. 227 review may not be granted under s. 806.07. Charter Manufacturing Co. v. Milwaukee River Restoration Council, Inc. 102 Wis. 2d 521, 307 N.W.2d 322 (Ct. App. 1981).

A party cannot recover attorney's fees against the state under sub. (9). An administrative judge should have been disqualified due to a compelling appearance of impropriety. Guthrie v. WERC, 107 Wis. 2d 306, 320 N.W.2d 213 (Ct. App. 1982).

Affirmed. 111 Wis. 2d 447, 331 N.W.2d 331 (1983).

The commission's change of accounting treatment for recovery of utility expenditures was arbitrary and capricious. Wisconsin Public Service Corp. v. PSC, 109 Wis. 2d 256, 325 N.W.2d 867 (1982).

Sub. (7) grants the trial court broad authority to remand a matter to an agency for further action when no hearing has been held and no particular result is compelled as a matter of law. R. W. Docks & Slips v. DNR, 145 Wis. 2d 854, 429 N.W.2d 86 (Ct. App. 1988).

Sub. (4) does not require a higher standard of fairness than the constitutional requirement of due process. The requirement of fairness merely insures that the procedure before the administrative agency will meet the requirements of due process. Due process in an administrative proceeding is really a question of the presence or absence of fair play. Bracegirdle v. Board of Nursing, 159 Wis. 2d 402, 464 N.W.2d 111 (Ct. App. 1990).

On review, there are three levels of deference that may be given to an administrative agency's conclusions of law and statutory interpretations, depending on the agency's experience, technical competence, and knowledge in regard to the question presented; great weight, due weight, and de novo. Kelley Company, Inc. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

Statutes enabling rule promulgation are strictly construed to preclude the exercise of a power not expressly granted. Whether an agency exceeded its authority in promulgating a rule is reviewed de novo by a reviewing court. State Public Intervenor v. DNR, 177 Wis. 2d 666, 503 N.W.2d 305 (Ct. App. 1993).

Agency jurisdiction is a legal issue reviewed de novo by a reviewing court. An agency's decision on the scope of its own power is not binding on the court. Loomis v. Wisconsin Personnel Commission, 179 Wis. 2d 25, 505 N.W.2d 462 (Ct. App. 1993).

Default judgment is incompatible with the scope of review of a ch. 227 proceeding. Wagner v. State Medical Examining Board, 181 Wis. 2d 633, 511 N.W.2d 874 (1994).

A circuit judge has inherent authority to order briefs in a case under this section and to dismiss the action if a party fails to file a brief as ordered. Lee v. LIRC, 202 Wis. 2d 558, 550 N.W.2d 534 (Ct. App. 1996), 95-0797.

De novo review of an administrative decision is appropriate only if the issue is one of first impression or the agency's position has been so inconsistent as to be of no guidance. An agency need not have considered identical or even substantially similar facts before, only the particular statutory scheme. ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999), 98-2912.

Emphasizing the uniqueness of certain facts presented to an administrative agency does not assure de novo review of the agency's decision. The test is not whether the agency has ruled on the precise, or even substantially similar, facts. The key is the agency's experience in administering a particular statutory scheme. Mattila v. Employee Trust Funds Board, 2001 WI App 79, 243 Wis. 2d 90, 626 N.W.2d 33, 00-0759.

The courts will not defer to an agency interpretation that directly contravenes the words of a rule. Trott v. DHFS, 2001 WI App 68, 242 Wis. 2d 397, 626 N.W.2d 48, 00-1486.

The test under sub. (6) is whether, taking into account all of the evidence in the record, reasonable minds could arrive at the same conclusion as the agency. The findings of an administrative agency do not need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. If the factual findings of the administrative body are reasonable, they will be upheld. Kitten v. DWD, 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649, 00-3562.

Ordinarily a reviewing court will not consider issues beyond those properly raised before the administrative agency, and a failure to raise an issue generally constitutes a waiver of the right to raise the issue. However, the rule is one of administration, and the reviewing court has the power to decide issues that were not raised before the agency if all the necessary facts are of record and the issue is a legal one of great importance. Bunker v. LIRC, 2002 WI App 216, 257 Wis. 2d. 255, 650 N.W.2d 864, 01-3441.

An agency's interpretation of its own rules is controlling unless it is plainly erroneous or inconsistent with the language of the rule. Agency interpretations of it's own rules generally receive only one level of deference from appellate courts, called either controlling weight or great weight. Despite the difference in terminology, the deference given is similar to the great weight standard applied to statutory interpretations. Both turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Baer v. Wisconsin DNR, 2006 WI App 225, 297 Wis. 2d 232, 724 N.W.2d 638, 05-0668.

Controlling weight deference is similar to great weight deference, despite the difference in terminology, because both standards turn on whether the agency's interpretation is reasonable and consistent with the meaning or purpose of the regulation or statute. Controlling weight describes a level of deference given to an agency's interpretation and application of administrative rules and regulations, while great weight deference describes a level of deference given to an agency's interpretation and application of a statute. DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311, 05-0544.

The deference framework applicable to an agency's interpretation of a statute was inapposite in this case in which the court was required to determine whether an executive agency's review of a circuit court's decision comported with the separation of powers under the Wisconsin Constitution. Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384, 16-0275.

Due process does not disqualify an agency as a decision-maker merely because of familiarity with the facts of the case. Hortonville Dist. v. Hortonville Ed. Asso. 426 U.S. 482 (1976).

If a court affirms an agency decision under sub. (2), an unsuccessful claimant may not bring a claim to federal court. Young v. Michigan Wisconsin Pipe Line Co. 569 F. Supp. 741 (1983).

The Standards of Review for Agency Interpretation of Statutes in Wisconsin. Massa. 83 MLR 597 (2000).

The scope of judicial review in Wisconsin. Hewitt, 1973 WLR 554.

The standard of review of administrative rules in Wisconsin. 1982 WLR 691.

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