Wisconsin's Environmental Decade, Inc. v. Public Service Commission
| Decision Date | 01 July 1977 |
| Docket Number | No. 76-289,76-289 |
| Citation | 79 Wis.2d 161,255 N.W.2d 917 |
| Parties | , 7 Envtl. L. Rep. 20,578 WISCONSIN'S ENVIRONMENTAL DECADE, INC., Appellant, v. PUBLIC SERVICE COMMISSION of Wisconsin and Wisconsin Public Service Corporation, Respondents. |
| Court | Wisconsin Supreme Court |
This is an action for judicial review under ch. 227, Stats., of an order of the respondent Public Service Commission of Wisconsin (hereinafter the PSC). It is the same action that was before the court in Wisconsin's Environmental Decade, Inc. v. Public Service Commission of Wisconsin, 69 Wis.2d 1, 230 N.W.2d 243 (1975).
The appellant, Wisconsin Environmental Decade, Inc. (hereinafter WED), commenced this action on October 12, 1973, by filing a petition for judicial review under sec. 227.15, Stats., of an order of the PSC which authorized the respondent, Wisconsin Public Service Corporation (hereinafter the corporation), a natural gas provider, to establish a priority system for curtailing natural gas services to its different classes of customers during the occurrence of natural gas shortages. The authorized priority system established which customers' natural gas service will be restricted or terminated when the corporation is unable to provide all the gas demanded. The PSC order, entered August 20, 1973, provided:
The above order was entered after public hearings in which WED intervened and requested that the PSC make a study of appropriate alternatives to the proposed action pursuant to the requirements of sec. 1.11(2)(e), Stats., of the Wisconsin Environmental Policy Act (WEPA), which provides:
In the challenged order, the PSC denied this request by WED.
The refusal of the request for an environmental study of alternatives was the basis of WED's action for judicial review of the PSC's order authorizing a natural gas priority system. WED, in its petition, contended the order was void because the PSC failed to comply with the requirements of sec. 1.11(2)(e) and, therefore, failed to follow procedure prescribed by law.
The PSC and the corporation initially moved the circuit court for dismissal of the petition upon the ground that WED lacked standing under sec. 227.15 and 227.16, Stats., to petition for judicial review. The circuit court agreed with the respondents and dismissed the petition by judgment entered on January 11, 1974. Appeal was taken from this judgment and on June 16, 1975, this court reversed and remanded, holding that if WED's allegations in its petition were true, it had standing to seek judicial review.
Upon remand, the PSC, on March 3, 1976, evidently joined by the corporation, in a supplementary statement of position to the circuit court, conceded WED has standing to request judicial review. The respondents also at that time moved the circuit court to dismiss the petition upon its merits for reasons of mootness. Mootness was claimed to exist because (1) the order sought to be reviewed had been superceded by a subsequent order and (2) the PSC, since the issuance of the challenged order, had conducted proceedings which it claimed were functionally equivalent to the relief sought by WED, compliance with sec. 1.11(2)(e). The respondents requested the circuit court to take judicial notice of a PSC order, which resulted from an inquiry into natural gas conservation in Wisconsin, and a PSC notice of hearing for a rule-making proceeding to promulgate rules for natural gas conservation.
Thereafter, WED moved the circuit court for summary judgment and attached to its motion four government reports, judicial notice of which it requested, concerning gas conservation measures. These reports, WED claimed, showed gas conservation measures not considered by the PSC and thus showed the PSC had not performed its duty under sec. 1.11(2)(e).
On September 17, 1976, the circuit court entered a decision denying WED's motion for summary judgment on the ground that it was not applicable to administrative review proceedings under ch. 227, and granting the PSC's motion to dismiss upon the ground of mootness. Judgment dismissing the petition for review was entered on November 22, 1976. WED appeals.
Melvin L. Goldberg, Kathleen M. Falk, Madison, for appellant.
Bronson C. La Follette, Atty. Gen., Steven M. Schur, Chief Counsel, and Barbara J. Willard, Asst. Chief Counsel, Madison, for Public Service Commission.
Allen W. Williams, Jr., and Foley & Lardner, Milwaukee, for Wis. Public Service Corp.
The following issues are presented on appeal:
1. Is summary judgment procedure applicable to proceedings of judicial review of administrative actions under ch. 227, Stats?
2. If summary judgment procedure is not applicable, may the respondent make, and the circuit court consider, in a judicial review proceeding a motion to dismiss for mootness, which asks the circuit court to take notice of matters outside the record?
3. Has this case been mooted, and therefore should not be determined, because the challenged order has been superceded by a subsequent order?
4. Has this case been mooted, and therefore should not be determined, because the PSC has conducted proceedings functionally equivalent to compliance with sec. 1.11(2)(e), Stats?
5. If the merits of the case should be reached, does sec. 1.11(2)(e), Stats., apply to the PSC's action, and if it does apply, has the PSC met its requirements?
The trial court denied WED's motion for summary judgment holding that summary judgment procedure is not authorized in proceedings for judicial review under the Administrative Procedure Act, ch. 227, Stats. We think the trial court was correct in this conclusion.
Sec. 802.08, Stats., which sets forth summary judgment procedure, was created by supreme court order. Wisconsin Rules of Civil Procedure, 67 Wis.2d 585 (1975). Under this procedure the trial court's function is to determine whether there are any issues of fact to be tried. Sec. 802.08(2) and (3); See Kavon Enterprises, Inc. v. American Universal Insurance Co., 74 Wis.2d 53, 57, 245 N.W. 695 (1976). 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. Sec. 227.20(1), Stats.; Universal Organization of Municipal Foremen, Supervisors & Administrative Personnel v. Wisconsin Employment Relations Commission, 42 Wis.2d 315, 321, 166 N.W.2d 239 (1969). 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. The whole procedure for appeal to the circuit court from administrative decisions is summary in nature, since it ordinarily involves only a review of the proceeding before the agency, instead of a trial of fact issues. See Elementary School District v. State Appeal Board, 68 Wis.2d 127, 227 N.W.2d 642, 231 N.W.2d 193 (1975); Wisconsin Employment Relations Board v. J. P. Cullen & Son, 253 Wis. 105, 33 N.W.2d 182 (1948).
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.
The appellant contends that the conclusion that summary judgment procedure is inapplicable requires the denial of the respondents' motion to dismiss for mootness, because such a motion is, in effect, a motion for summary judgment. We do not agree.
In Duel v. State Farm Mutual Automobile Insurance Co., 243 Wis. 172, 174-75, 9 N.W.2d 593 (1943), the court expressly held that a motion to dismiss for mootness cannot be considered a motion for summary judgment because the motions are different in character and raise different issues. A motion for summary judgment asks the trial court to determine if any fact issues exist to be tried and, if not, to decide the case on its merits. A motion to dismiss for mootness, on the other hand, does not involve the determination if there are any triable issues of fact and does not request a determination on the merits. When a case is dismissed because the issues therein have become moot, the rights of the parties are not adjudicated, and neither party is entitled...
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