Stacy v. Ashland County Dept. of Public Welfare

• Decision Date: 28 June 1968
• Citation: 39 Wis.2d 595,159 N.W.2d 630
• Parties: Betty L. STACY, Plaintiff-Appellant, v. ASHLAND COUNTY DEPARTMENT OF PUBLIC WELFARE and State Department of Public Welfare, Defendant-Respondents.
• Court: Wisconsin Supreme Court

Page 630

159 N.W.2d 630

39 Wis.2d 595

Betty L. STACY, Plaintiff-Appellant, v. ASHLAND COUNTY DEPARTMENT OF PUBLIC WELFARE and State Department of Public Welfare, Defendant-Respondents.

Supreme Court of Wisconsin.

June 28, 1968.

David Wartman, Wartman & Wartman, Ashland, for appellant; Joseph Preloznik, Director Wis. Judicare and Jonathan D. Jackson, Jr., Wis. Judicare, Madison, of counsel.

Bronson C. La Follette, Atty. Gen., Donald P. Johns, Asst. Atty. Gen., Madison, for respondent State Dept. of Public Welfare.

HALLOWS, Chief Justice.

Considerable effort was spent on this appeal on the question of whether a decision made under sec. 49.50(8), Stats., by the State Department of Public Welfare is subject to judicial review under ch. 227, Stats., as a matter of right or whether such a decision is only reviewable by certiorari. Sec. 49.50(8) provides a person whose award of aid to dependent children is modified or canceled by a county may petition the department for a review of such action and the department must grant a hearing and render a decision. The section then provides 'such decision shall be final, but may be revoked or modified as altered conditions may require.' In Tyler v. State Department of Public Welfare (1963), 19 Wis.2d 166, 119 N.W.2d 460 we strongly intimated that decisions of the department of public welfare were reviewable under secs. 227.15--227.21, Stats., inclusive. We pointed out that sec. 227.01 defined 'agency' as any department with some exceptions not applicable and that sec. 227.15 which dealt directly with judicial review of orders excepted decisions of the department of justice, commissioner of banks, and the commissioner of savings and loan associations, but did not except decisions of the department of public welfare. However, we held in Tyler that a prisoner's interest in being paroled was not a right or privilege within the meaning of sec. 227.15 and consequently a decision involving parole was not reviewable under that section.

This court earlier in State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 94 N.W.2d 711, stated in considering whether a certiorari proceeding was proper that the legislature could 'by a specific statute not embodied in ch. 227, Stats., exclude other agency decisions from review under the Administrative Procedure Act' besides those that were expressly excluded by the act itself. The court then stated that the provisions of sec. 37.31(1), Stats., providing that the decision of the Board of Regents of State Colleges 'shall be final' was sufficient to remove such decisions from judicial review under sec. 227.15. However, such language did not deny all judicial review, for the court recognized the availability of the writ of certiorari and enlarged its scope on review from the confining limits of whether the agency acted within its jurisdiction to the broader bounds of whether the agency acted according to both law and the sufficiency of the evidence. Specifically the scope of the review on certiorari was held to include: (1) Whether the board kept within its jurisdiction, (2) whether it proceeded on a correct theory of law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question. This scope of the review is substantially the same as that provided in sec. 227.20, stats., for review under that chapter.

We are asked to overrule the Ball Case in respect to its statement that if a statute provides an administrative decision shall be final such language applies not only to administrative finality but also prevents judicial review under the Wisconsin Administrative Procedure Act. In Village of Cobb v. Public Service Comm. (1961), 12 Wis.2d 441, 107 N.W.2d 595, we recognized that the legislature could provide methods and procedures for review as an alternative to or as a condition precedent to a review under ch. 227. But in that case the added step was clearly and expressly stated.

The problem raised in the instant case is not whether the language 'shall be final' denies all the judicial review but rather whether it denies judicial review of right under ch. 227. We have consistently held there must be some judicial review of administrative orders. In Outagamie County v. Smith (1968), 37 Wis.2d 24, 155 N.W.2d 639, we examined the question of review by certiorari where no provision was made for a review of a decision of a board or a commission. We therein stated, at p. 35, 155 N.W.2d at p. 645:

'The recent case of State ex rel. Kaczkowski v. Fire & Police Comm. of City of Milwaukee (1967), 33 Wis.2d 488, 500, 148 N.W.2d 44, 50, 149 N.W.2d 547, summarized the holdings of State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 199, 94 N.W.2d 711; State ex rel. Wasilewski v. Board of School Directors of City of Milwaukee (1961), 14 Wis.2d 243, 111 N.W.2d 198; and State ex rel. Gudlin v. Civil Service Comm. of City of West Allis (1965), 27 Wis.2d 77, 133 N.W.2d 799, and concluded that they 'all stand for the rule that where there are no statutory provisions for judicial review the action of a board or commission may be reviewed by way of certiorari."

Another recent affirmance of the view that there must be a judicial review of administrative rulings is found in Schmidt v. Dept. of Resource Development (1968), 39 Wis.2d 46, 158 N.W.2d 306, which relied upon State ex rel. Wis. Insp. Bureau v. Whitman (1928), 196 Wis. 472, 220 N.W. 929.

We think the language referring generally to finality of administrative decisions such as is contained in sec. 49.50(8), Stats., is not intended to deprive a litigant of a right to review under ch. 227. The general rule of the Administrative Procedure Act is to grant review of final rulings of administrative agencies and the statutory exceptions appearing outside that act should be as clear and expressive as the exceptions provided in sec. 227.15, Stats. The finality of an administrative-agency decision means that agency may not reopen the decision unless there are altered conditions, not that there is no judicial review under ch. 227. This is the better view of the problem. See 4 Davis, Administrative Law, sec. 28.01, et seq.; Annot. (1960), Power of administrative agency to reopen and reconsider final decision as affected by lack of specific statutory authority, 73 A.L.R.2d 939. To this limited extent the language of the Ball Case to the effect a general statutory provision of finality of an administrative decision prevents review under ch. 227, Stats., is overruled and withdrawn.

Mrs. Stacy argues the circuit court applied the wrong test for the sufficiency of evidence in reviewing the department of welfare's determination. Stress is laid on the use of the term 'some substantial evidence.' True, the court used the term in one place in its opinion but in another part of the opinion the court stated the issue was whether there was substantial credible evidence to support the findings, and it also concluded the findings and conclusions had to be affirmed as not being unsupported by substantial evidence. We think the court had the proper test of the sufficiency of the evidence in mind.

It is academic whether we consider this review as governed by ch. 227 or by certiorari. The test on certiorari for sufficiency of the evidence is the substantial-evidence test, which has been the subject of many decisions. We see no difference between stating this test in the affirmative and stating it in the negative as is done in sec. 227.20(1)(d), Stats., 'unsupported by substantial evidence in view of the entire record as submitted.' In Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d 120, 131, 115 N.W.2d 498, we stated the substantial-evidence rule of this section was whether reasonable minds could arrive at the same conclusion reached by the commission. This concept of reasonableness was said to be implied in the statutory words 'substantial evidence.' In Copland v. Department of Taxation (1962), 16 Wis.2d 543, 114 N.W.2d 858, and in...