797 Judicial review

Administrative agencies are no longer afforded deference in interpretations of law; supreme court review of an agency’s conclusions of law is determined under the same standard it applies to a circuit court’s conclusions of law -- de novo. Courts, however, may give persuasive “due weight” to an administrative agency’s experience, technical competence and specialized knowledge. When considering persuasive value of an interpretation of law under a due weight standard, a court may analyze factors such as (1) whether the agency is responsible for administering a statute, (2) the duration of the interpretation, (3) the extent to which the agency used its expertise, and (4) whether the interpretation enhances the consistency of law. Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.

A “newly discovered evidence”-based request for rehearing under Wis. Stat. § 227.49, and a motion to set aside, modify or change a decision under Wis. Stat. § 111.39(5)(c), both apply only to requests made after the final decision of the agency (LIRC) has been issued. They do not apply to asking LIRC to order further hearing in the course of its review. Once a petition for LIRC review is filed, an administrative law judge loses power to act in a case and cannot act on a motion for rehearing. However, LIRC’s general review authority includes authority to order further hearing on grounds of newly discovered evidence - but in this case, evidence about an employment action occurring three years after the employment action was complained of, did not involve sufficient parallels to allow the conclusion that it would change the result in the case. Hafeman v. County of Sauk (LIRC, 04/04/14).

Case law has established that Ch. 227, Stats., limits judicial review to final agency orders. In this case, the Complainant contended that LIRC exceeded its authority when it remanded the case for further hearing on the ground that the Respondent had established good cause for failing to appear at the original hearing. LIRC’s decision was not a final order. If, after the further hearing, the agency’s final order was adverse to the Complainant, he could at that time seek judicial review of both LIRC’s good cause determination and its determination on the merits. Deering v. LIRC, 2012 WI App 52, 340 Wis. 2d 742, 813 N.W.2d 248.

The Complainant’s petition for judicial review was dismissed where it was filed one day late. The Complainant apparently read sec. 227.53(1)(a)2., Stats., to mean that he had one month from the issuance and mailing of the LIRC decision in which to file his petition for review. However, the statute says, “30 days,” which is not the same as one month. Failure to strictly comply with the statutory requirement cannot be excused. Benthein v. LIRC (Manitowoc Co. Cir. Ct., 11/30/11).

The Complainant’s employer appeared as a party in the administrative proceeding, and it was listed as a party in LIRC’s memorandum decision. Accordingly, the Complainant was required to serve either the employer or its attorney with a copy of her petition for judicial review within 30 days after she instituted a circuit court proceeding. The Complainant had three options to effect service: (1) personal service, (2) service by certified mail, or (3) service by first class mail if such service was timely admitted in writing. In this case, the Complainant failed to serve the Respondent properly when she served its attorney by first class mail without securing an admission of service. The Complainant’s petition for review was dismissed. Johnson v. LIRC & Wheaton Franciscan Health Care (Ct. App., Dist. I, unpublished opinion, 12/09/08).

The circuit court has no power to deal with allegations of perjury (which are allegations of a crime) in the context of a Chapter 227, Stats., review. Bedynek-Stumm v. LIRC (Dane Co. Cir. Ct., 10/10/08).

Parties are not entitled to the appointment of legal counsel in Chapter 227, Stats., court review cases. Bedynek-Stumm v. LIRC (Dane Co. Cir. Ct., 10/10/08). A circuit court may not 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 sec. 227.57, Stats., unless the petitioner has notice of the possibility of dismissal and a reasonable opportunity to request leave to amend the petition. Jackson v. LIRC, 2006 WI App 97, 293 Wis. 2d 332, 715 N.W.2d 654.

An agency decision is final if it conclusively determines the further legal rights of the person seeking review. Preliminary or interlocutory proceedings are excluded from judicial review in order to prevent administrative proceedings from being constantly interrupted and shifted between the administrative agencies and the courts. In this case, the Labor and Industry Review Commission remanded a case to the Equal Rights Division for further review on the merits. That decision was not final and, therefore, it was not subject to judicial review. Kimberly Area Sch. Dist. v. LIRC, 2005 WI App 262, 288 Wis. 2d 542, 707 N.W.2d 872.

The petitioner’s use of facsimile transmission to present his petition for review to the circuit court did not constitute substantial compliance with the statutes for filing. Sec. 801.12(2), Stats., allows individual counties to accept facsimile transmissions only for papers that do not require a filing fee. This action required a filing fee. Ficken v. LIRC (Dane Co. Cir. Ct., 09/16/03).

The requirements for administrative appeals are unyielding. The petitioner argued that he missed deadlines in filing and serving his petition for review because he resides in Romania. Wisconsin’s state procedural statutes do not depend on the location of the litigant. It was up to the petitioner to make arrangements to expedite his notification of the decision from the Labor and Industry Review Commission and to timely file any appeal. Ficken v. LIRC (Dane Co. Cir. Ct., 09/16/03).

A petitioner’s failure to serve a petition for review on non-agency parties prevents the circuit court from acquiring subject matter jurisdiction. In this case, the court lacked jurisdiction because the Complainant failed to send a copy of his petition for review to the Respondent, although he did send a copy of the petition for review to LIRC. Josellis v. LIRC (Ct. App. Dist. IV, summary affirmance, 08/22/03).

The Complainant filed a petition for review in circuit court within the time limits set out in the notice of appeal rights sent to him by the Labor and Industry Review Commission. However, he did not serve LIRC until four days after the time limit expired. Because the petition was served on the Commission late, the court lacked subject matter jurisdiction to decide the appeal. Reed v. LIRC (Milwaukee Co. Cir. Ct., 08/18/03).

A court reviewing an administrative agency decision may not make an independent determination of the facts. The court is limited to determining whether there is substantial evidence of record to support the agency’s findings. Knight v. LIRCM (Dane Co. Cir. Ct., 05/15/03).

A reviewing court may not make credibility determinations on administrative review. Knight v. LIRC (Dane Co. Cir. Ct., 05/15/03).

The circuit court does not have jurisdiction or competency to review an administrative agency decision unless there is strict compliance with the requirements of the Wisconsin statutes. There is no authority permitting a circuit court to extend the time limits for serving and filing a petition for review. Cardinal TG Co. v. LIRC (Monroe Co. Cir. Ct., 06/29/01).

The circuit court does not have subject matter jurisdiction where the appealing party failed to serve a copy of the petition for review upon LIRC, personally or by certified mail, within thirty days of LIRC’s decision. Sark v. LIRC (Dane Co. Cir. Ct., 06/21/00).

Service of process of an administrative appeal must be by personal service or by certified mail. Where an appealing party attempted to serve process by first class mail, the appeal was dismissed. South Side Spirit v. LIRC (Milwaukee Co. Cir. Ct., 06/01/93).

The Wisconsin Supreme Court has applied three levels of deference to conclusions of law and statutory interpretation in agency decisions. First, if the administrative agency's experience, technical competence and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to “great weight.” The second level of review is a mid-level standard that provides if the agency decision is “very nearly” one of first impression it is entitled to “due weight” or “great bearing.” The third level of review is de novo and is applied when the case is clearly one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992). [Ed.’s Note: This decision has been supplanted by Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21].

Sec. 227.53(1), Stats., requires serving a petition for review personally or by certified mail upon the agency within thirty days after the date the agency decision is mailed. Where the Commission mailed its decision on November 15, 1991, and the Complainant’s petition for review was mailed via first class mail in an envelope postmarked December 17, 1991, service on the agency was untimely. Also, where the Complainant’s petition was not filed in the clerk’s office until January 13, 1992, even if the Complainant mailed it on December 16, 1991, and even if it was received on December 18, 1991, as the Complainant contended, filing is not complete until receipt and the Complainant’s petition was therefore untimely filed as well. Guel v. LIRC (Ct. App., Dist. II, summary decision, 12/09/92).

Sec. 227.48(2), Stats., requires that administrative agencies give notice of appeal rights, including any right to rehearing and other administrative review and judicial review. The time limitation for filing a petition for review is tolled if the proper notice is not given. Thus, where the notice given to a Complainant did not comply with the requirements of the statute, the 30-day time period for filing a petition for review did not begin to run and the Complainant’s petition for review, which was filed more than 30 days following the Department’s decision, was timely filed. Alexander v. DILHR, (Ct. App., unpublished opinion, 1991).

The petitioner did not comply with the statutory deadline requiring filing and service of a petition for review within 30 days of LIRC’s decision where he arrived at the clerk of court’s office after the close of business hours and had the petition time stamped at 6:43 p.m. on that date. Documents or petitions which are received after closing will be treated as having been filed on the following day. Leaving the petition for review in a conspicuous place in LIRC’s offices after hours, likewise, did not constitute personal service on the agency or its officials. Watson v. LIRC (Ct. App., unpublished opinion, 08/22/91).

Sec. 227.53, Stats., requires that a petition for review to the circuit court be made personally or by certified mail within 30 days, commencing on the day after the decision is mailed. Ordinary first-class mail does not satisfy the statutory requirement of personal service or certified mail. Joseph v. LIRC (Ct. App., unpublished opinion, 06/25/91).

A decision of the Labor and Industry Review Commission concluding that it has jurisdiction to review a ruling of an Administrative Law Judge is not a final administrative decision subject to judicial review. Associated Schools, Inc. v. LIRC (Ct. App., unpublished opinion, 03/21/91).

The Commission reversed the dismissal of a complaint and remanded the matter for further hearing, and the employer filed a petition for judicial review of that order by the Commission. The Commission's order of remand sought to be reviewed was not an appealable order subject to judicial review. The continued prosecution of that petition for judicial review was frivolous. In addition to dismissing the petition for judicial review, the Court ordered the employer to pay the Complainant his actual attorney's fees in opposing the petition for judicial review. Best Foods Unit of CPC North Am. v. LIRC (Dane Co. Cir. Ct., 06/08/87).

A non-final order of the Commission (in this case, an order remanding a matter for hearing after a finding that the Complainant had demonstrated good cause for failing to appear at the first scheduled hearing date) is not subject to judicial review. Larsen Co. v. DILHR (Brown Co. Cir. Ct., 10/28/85).