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Judicial Review Analysis

The legislature has little choice but to amend the relevant statutes, to make clear which parties should be named as respondent when appealing administrative decisions to circuit court; it is not acceptable to have a statutory scheme in which it is subject to debate who is the proper party to serve when seeking judicial review of administrative decisions.

In fact, the Supreme Court said as much more than 20 years ago, bemoaning that sec. 227.01(1) does not expressly list all presently existing “administrative tribunals of a state-wide character.” Sunnyview Village, Inc. v. DOA, 104 Wis.2d 396, 401, 311 N.W.2d 632 (1981).

Nevertheless, while the statutory scheme may still be as “complex” and “troublesome” as it was in 1981, see Sunnyview Village, 104 Wis.2d at 399-400, the court’s conclusion that the statute is ambiguous whether the DOT or DHA is the proper party to serve is troublesome in its own right.

The notice attached to the DHA’s decision explicitly stated, “Any petition for judicial review shall name the Division of Hearings and Appeals as the respondent. The notice also explicitly states that the “PARTIES” are All Star Rent a Car, Inc. and the DOT, and directs the reader to sec. 227.53(1)(c), which explains the procedures for serving other parties, as opposed to the DHA.

Nevertheless, the court found this clear notice to add to the ambiguity, rather than eliminate it, because “it directs prospective petitioners to the very statutory ambiguity we have noted.” The court concluded that the clear delineation of who is the agency and who are parties makes the notice more confusing, even though prisoners (many barely literate) who have had their parole revoked receive nearly identical notices, and yet are expected to, and do, figure out whom to name as respondent when they want judicial review of their revocations.

Also, as complex as the statute may be, the DOT cannot reasonably be thought to be the relevant agency making the final decision to appeal. The DOT pointed out to the court how absurd it would be if the DOT were the agency to be served, rather than the DHA, by noting that DOT can appeal when it loses, and thus, if DOT is the relevant agency, that interpretation of the statute would effectively require it to serve itself.

Even faced with that overwhelming argument, however, the most the court would acknowledge is that DOT’s interpretation, considered with resort to legislative history and other statutes, “might well” be deemed the “more” reasonable.

The case can also be distinguished from Sunnyview Village, in which the Supreme Court found that the division of power between the DOA and the nursing home board was such that it was questionable who actually was the final decision maker. Sunnyview Village, 104 Wis.2d at 405-407. No similar argument could plausibly be made in the case at bar.

Furthermore, the court does not even mention the effect of sec. 227.53(1)(b)1.-4., which enumerates four, and only four, exceptions to the rule that the agency making the final decision shall be the respondent: instead of the tax appeals commission, the department of revenue; instead of the banking review board, the division of banking; instead of the credit union review board, the office of credit unions; and instead of the savings institutions review board, the division of banking.

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Nowhere in the statute does it say that, instead of “the division of hearings and appeals, the department of transportation,” should be the named respondent.

In short, while the statutes may be complex and confusing, no reasonable person who carefully and successfully does navigate the statutes could actually accept All Star’s interpretation as a reasonable one.

Thus, the court’s decision would be far more persuasive if, instead of holding that the statute is ambiguous, it took a page from insurance law, and held that, even though the language is plain and unambiguous on its face, the statutory scheme (like some insurance policies) is so complex and requires so much cross-referencing that it is “contextually ambiguous.” See Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis.2d 61, 647 N.W.2d 223.

– David Ziemer

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David Ziemer can be reached by email.

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