Mortensen v. Pyramid Sav. & Loan Ass'n of Milwaukee

• Court: Wisconsin Supreme Court
• Writing for the Court: HALLOWS
• Citation: Mortensen v. Pyramid Sav. & Loan Ass'n of Milwaukee, 191 N.W.2d 730, 53 Wis.2d 81 (Wis. 1971)
• Decision Date: 30 November 1971
• Docket Number: No. 223,223
• Parties: Leo MORTENSEN, Commissioner of Savings & Loan, Appellant, v. PYRAMID SAVINGS & LOAN ASSOCIATION OF MILWAUKEE, Respondent.

Page 730

191 N.W.2d 730

53 Wis.2d 81

Leo MORTENSEN, Commissioner of Savings & Loan, Appellant, v. PYRAMID SAVINGS & LOAN ASSOCIATION OF MILWAUKEE, Respondent.

No. 223.

Supreme Court of Wisconsin.

Nov. 30, 1971.

On October 20, 1969, Pyramid Savings and Loan Association of Milwaukee made an application to the Commissioners of Savings and Loan for permission to establish a branch office in Brookfield. The following month after a hearing Leo Mortensen, the Commissioner of Savings and Loan, denied the application. Upon application by the Pyramid Savings and Loan Association (Pyramid) for a review of the commissioner's decision, the Savings and Loan Review Board reversed the commissioner's denial. On March 17, 1970, the commissioner under ch. 227, Stats., petitioned the circuit court for Dane county for a review of the savings and loan review board's decision, making Pyramid the respondent. Upon motion of Pyramid pursuant to sec. 227.19(3), the circuit court dismissed the review petition on the ground the commissioner was not an aggrieved party. From the order dismissing the petition for a review, the commissioner appeals.

Jenswold, Studt, Hanson, Clark & Kaufmann, Bruce K. Kaufmann, Madison, for appellant.

Lowry, Hunter & Tikalsky, Waukesha, for respondent.

HALLOWS, Chief Justice.

The only issue presented is whether the commissioner of savings and loan is a 'person aggrieved' and 'directly affected' under sec. 227.16(1), Stats., so as to have standing to maintain a petition to challenge the reversal of his decision by the savings and loan review board. The trial court held, and we think correctly so, that the commissioner of savings and loan is not a person aggrieved and is not directly affected within the meaning of sec. 227.16(1). ¹

The basic reason for this interpretation of the statute is that the commissioner of savings and loan is a part of the decisional process of the savings and loan department and his decision only initially determines the issue in the administrative proceeding. An administrative officer is not a party for the purposes of seeking a review of a reversal of his determination by a board of appeals. See 2 Am.Jur., Administrative Law, p. 177, sec. 368. It is stated in 2 Am.Jur., Administrative Law, p. 397, sec. 576 'An administrative officer who made an original decision which was appealed to a higher administrative authority was held to have no interest as a party which would entitle him to appeal from the overruling of his decision.' To the same effect is 73 C.J.S. Public Administrative Bodies and Procedures § 159, p. 497; Dept. of Labor v. Unemployment Comp. Bd. of Rev. (1949), 362 Pa. 342, 67 A.2d 114. Unless the statute expressly so provides, an aggrieved party is one outside the decisional process who is directly affected.

But it is argued by the commissioner that because he alone has the legal responsibility to supervise the savings and loan industry and he is charged with the protection of public rights, these interests are sufficient to place him within the category of an aggrieved person directly affected by the decision of the savings and loan review board. While the commissioner has a personal interest in seeing his opinion affirmed, such interest does not constitute him as an official and aggrieved person. He relies on Muench v. Public Service Commission (1951), 261 Wis. 492, 53 N.W.2d 514, and Norway v. State Board of Health (1966), 32 Wis.2d 362, 145 N.W.2d 790. In Muench we held a citizen had sufficient legal interest ² in the use of navigable waters to challenge a public service commission's decision; and in Norway, we held the town's governmental right to prevent pollution was a sufficient basis to render the town an aggrieved person entitled to challenge an administrative agency's sewerage treatment plan. But the important point is that in neither of these decisions was the citizen or the town a part of the decisional administrative process; they were bystanders, outside the decisional process.

The statute does not contemplate the commissioner would ever be a petitioner for review, because sec. 227.16(1) provides that when a decision of the savings and loan review board is challenged, the commissioner shall be named respondent and the party challenging the decision shall be the petitioner. While it may be incongruous to have the commissioner named as respondent to defend a decision of the review board which reversed him, nevertheless that is the statutory scheme and places an official duty upon the commissioner to defend a decision he does not personally agree with. In other respects the section indicates his decisions are subservient to the review board even though he may privately disagree with the wisdom and correctness of such decision. It is the review board's decision which is reviewed under ch. 227, not the commissioner's. See sec. 215.04(6), 'Any final order or determination of the review board shall be subject to review under ch. 227' and sec. 227.15 which expressly excludes review of decisions of the commissioner of savings and loan.

Nor is the commissioner the final authority of this department so as to...