State ex rel. Town of Delavan v. Circuit Court for Walworth County

• Decision Date: 21 April 1992
• Docket Number: No. 91-1140-W,91-1140-W
• Citation: 167 Wis.2d 719,482 N.W.2d 899
• Parties: STATE of Wisconsin ex rel. TOWN OF DELAVAN, Petitioner, v. CIRCUIT COURT FOR WALWORTH COUNTY, Honorable James L. Carlson, Presiding, Daniel G. Kilkenny, Wisconsin Department of Development, The City of Delavan, LLL Partners, LLF Partners and Lake Lawn Airport Corporation, Respondents.
• Court: Wisconsin Supreme Court

Page 899

482 N.W.2d 899

167 Wis.2d 719

STATE of Wisconsin ex rel. TOWN OF DELAVAN, Petitioner, v. CIRCUIT COURT FOR WALWORTH COUNTY, Honorable James L Carlson, Presiding, Daniel G. Kilkenny, Wisconsin Department of Development, The City of Delavan, LLL Partners, LLF Partners and Lake Lawn Airport Corporation, Respondents.

No. 91-1140-W.

Supreme Court of Wisconsin.

Argued Feb. 26, 1992.

Decided April 21, 1992.

For the petitioner there were briefs by Michael P. May and Boardman, Suhr, Curry & Field, Madison and oral argument by Mr. May.

For the respondents there was a brief by William F. White, Stephen L. Crocker and Michael, Best & Friedrich, Madison and oral argument by Mr. White.

Amicus curiae brief was filed by F. Thomas Creeron, III, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

CECI, Justice.

This case is before the court on certification by the court of appeals, pursuant to sec. 809.61, Stats. The petitioner, Town of Delavan (the town), seeks a writ of prohibition directing Walworth County Circuit Judge James L. Carlson to refrain from taking further actions in the underlying ch. 227, Stats., judicial review and to process a request for substitution of judge which was filed pursuant to sec. 801.58(7), Stats. ¹ This case presents the sole issue of whether sec. 801.58(7) applies in a ch. 227 judicial review. ² We hold that it does.

The underlying case seeks judicial review of a Wisconsin Department of Development determination that a proposed incorporation of certain lands as a village did not meet the applicable standards prescribed in sec. 66.016, Stats. The town filed the request for substitution of judge after the underlying ch. 227 judicial review was remanded to the circuit court by the court of appeals in Town of Delavan v. City of Delavan, 160 Wis.2d 403, 466 N.W.2d 227 (Ct.App.1991). By a decision and order dated April 13, 1991, Judge Carlson denied the request for substitution of judge on the grounds that sec. 801.58(7) does not apply in a ch. 227 judicial review. The town filed its petition for a supervisory writ in the court of appeals on May 14, 1991. ³ This court accepted certification from the court of appeals. ⁴

The issue before this court, whether sec. 801.58(7), Stats., applies in a ch. 227 judicial review, is a matter of statutory interpretation. Statutory interpretation is a question of law which we review without deference to the decisions of the lower courts. Pulsfus Farms v. Town of Leeds, 149 Wis.2d 797, 803-04, 440 N.W.2d 329 (1989).

The respondent, City of Delavan (the city), urges us to find that sec. 801.58(7), Stats., is inapplicable to ch. 227 judicial reviews. The city argues that the language of secs. 227.02, 227.52, and 227.53, Stats., supports its argument. We do not agree.

Section 227.02, Stats., provides:

227.02 Compliance with other statutes. Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute.

As commanded by the express language of sec. 227.02, ch. 227 judicial reviews must comply with the procedure required by other statutes. However, we read into sec. 227.02 an implicit prerequisite that that section only requires compliance with those procedures required by other statutes which do not conflict with ch. 227. Section 227.02 therefore commands that the substitution of judge provided by sec. 801.58(7) be available in ch. 227 judicial reviews, as long as the substitution of judge does not conflict with provisions of ch. 227. As there are no sections of ch. 227 that would conflict with or be rendered ineffective by allowing sec. 801.58(7) substitutions, we find that sec. 801.58(7) does not conflict with ch. 227, and sec. 801.58(7) is, therefore, applicable in ch. 227 judicial reviews.

In addition, the language of secs. 227.52 and 227.53 do not advance the city's argument. Section 227.52, Stats., provides in relevant part:

227.52 Judicial review; decisions reviewable. Administrative decisions which adversely affect the substantial interests of any person ... are subject to review as provided in this chapter....

(Emphasis added.) Section 227.53, Stats., provides in relevant part:

227.53 Parties and proceedings for review. (1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review thereof as provided in this chapter.

(Emphasis added.) The emphasized portions of secs. 227.52 and 227.53 state that judicial review under ch. 227 is to be conducted pursuant to the provisions of ch. 227. One of the provisions of ch. 227 is sec. 227.02, which, as stated above, commands that ch. 227 judicial reviews comply with procedures required by other statutes which do not conflict with ch. 227. We therefore find that ch. 227 contemplates the limited use of those civil procedure statutes which do not conflict with ch. 227.

Furthermore, the language of sec. 801.58(7), Stats., does not preclude its application to ch. 227 judicial reviews. Section 801.58(7) is found within the civil procedure statutes, chs. 801 to 847. The scope of the civil procedure statutes is found within sec. 801.01(2), Stats., which provides:

801.01 Kinds of proceedings; scope of chs. 801 to 847.

. . . . .

(2) Scope. Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. Chapters 801 to 847 shall be construed to secure the just, speedy and inexpensive determination of every action and proceeding.

We have previously stated that a ch. 227 judicial review is a "special proceeding." Ashwaubenon v. Public Service Comm., 15 Wis.2d 445, 448, 113 N.W.2d 412 (1962). As chs. 801 to 847 apply to special proceedings, sec. 801.58(7) necessarily applies to ch. 227 judicial reviews, unless foreclosed by different procedure prescribed by ch. 227. As stated above, we find no conflict between sec. 801.58(7) and ch. 227.

The city next argues that case law requires a finding that sec. 801.58(7), Stats., does not apply in ch. 227 judicial reviews. To support this argument, the city primarily relies upon Wis. Environmental Decade v. Public Service Comm., 79 Wis.2d 161, 255 N.W.2d 917 (1977) [hereinafter W.E.D.]. In W.E.D., the circuit court denied a motion for summary judgment under sec. 802.08, Stats., on the ground that it was not applicable to judicial review under ch. 227, and granted an opposing motion to dismiss upon the grounds of mootness. W.E.D., 79 Wis.2d at 168, 255 N.W.2d 917. We affirmed the circuit court's denial of the motion for summary judgment and appeared to give two reasons for our holding.

The first reason we gave for affirming the denial of summary judgment was that there was a conflict between sec. 802.08, Stats., and ch. 227.

Under [sec. 802.08] the trial court's function is to determine whether there are any issues of fact to be tried.... However, judicial review of administrative decisions under ch. 227 envisages a review upon the record, and there is no trial de novo in the circuit court during such proceedings.... Only under limited circumstances, such as where the procedure before the agency is challenged as irregular, may the circuit court consider facts outside the record made before the agency.

W.E.D., 79 Wis.2d at 170, 255 N.W.2d 917 (citations omitted). Therefore, due to this conflict, we affirmed the circuit court's denial of summary judgment to the appellant on the ground that a sec. 802.08 motion for summary judgment accompanied by supporting affidavits is inapplicable to ch. 227 judicial reviews.

However, in W.E.D. we did not hold that all civil procedures are inapplicable in ch. 227 judicial reviews. We found that a motion to dismiss for mootness is available in ch. 227 judicial reviews. While doing so, we stated:

The appellant ... places great emphasis upon the fact a motion to dismiss for mootness, like a motion for summary judgment, generally raises matters outside the record. However, the matters raised by a motion to dismiss, unlike those raised by a motion for summary judgment, do not go to the merits of the case. Therefore, in a ch. 227 judicial review proceeding, a motion to dismiss upon the ground of mootness does not conflict with the general provision that the judicial review, which goes to the merits of the case, be confined to the record, while a motion for summary judgment accompanied by supporting affidavits does so conflict.

W.E.D., 79 Wis.2d at 171-72, 255 N.W.2d 917. W.E.D. therefore stands for the proposition that procedures available in civil actions are available in ch. 227 judicial reviews as long as there is no conflict between those procedures and ch. 227. When there is a conflict, the civil procedures must give way to the dictates of ch. 227.

The second reason we gave in W.E.D. for affirming the circuit court's denial of the sec. 802.08, Stats., motion for summary judgment has been the source of some confusion in the case law. We stated:

The inapplicability of summary judgment procedure to administrative review proceedings is further supported by the legislature's intent in creating ch. 227. Ch. 227 provides a comprehensive, fully defined, procedure for judicial review of administrative decisions. The legislature, recognizing the difference between these judicial review proceedings and civil actions, intended to provide in ch. 227 a single procedure to which the statutes relating to practice in civil actions are inapplicable. Hoyt, The Wisconsin Administrative Procedure Act, 1944 Wis.L.Rev. 214, 226-38.

W.E.D., 79 Wis.2d at 170, 255 N.W.2d 917. The above-quoted language from W.E.D. has been interpreted in some cases as requiring that all civil procedure statutes are inapplicable in ch. 227 judicial reviews. W.E.D. was not meant to be, and is not, that...