Civil Procedure — Administrative law — statute of limitations

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Wisconsin Court of Appeals

Civil

Civil Procedure — Administrative law — statute of limitations

Section 801.15(1)(b), which provides that when a deadline is less than eleven days, weekends and holidays are excluded from the counting period, is not applicable to an appeal before an administrative agency.

“The issue in Town of Delavan, 167 Wis. 2d at 721, was whether the substitution of judge provision in WIS. STAT. § 801.58(7) applies to a WIS. STAT. ch. 227 judicial review. The supreme court held that it does, as ‘ch. 227 contemplates the limited use of those civil procedure statutes which do not conflict with ch. 227.’ Town of Delavan, 167 Wis. 2d at 724. As § 801.58(7) does not conflict with any provision in ch. 227, it applies to ch. 227 administrative reviews. See Town of Delavan, 167 Wis. 2d at 724.”

“Using Town of Delavan, Baker argues that WIS. STAT. § 801.15(1)(b) applies to this case as it does not conflict with any provision in WIS. STAT. ch. 227. Baker has misinterpreted the holding of Town of Delavan. Town of Delavan applied a rule of civil procedure (the substitution of judge statute) to an appeal before a circuit court. Baker is asking this court to apply a rule of civil procedure to a proceeding before an administrative agency. WISCONSIN STAT. § 50.02(2)(am)2. provides that the rules for appealing the revocation of an adult family home operating license are determined by DHS. Pursuant to this authority, DHS promulgated WIS. ADMIN. CODE § DHS 88.03(7)(b), which states that an appeal from a license revocation must be received ‘within 10 days after the date of the notice.’ Section 801.15(1)(b) only applies to proceedings before a circuit court and thus has no application to an appeal before an administrative agency.”

Affirmed.

Recommended for publication in the official reports.

2011AP1529 Baker v. DHS

Dist. I, Milwaukee County, Sosnay, J., Reilly, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Hunter, Robert M., Madison