Wisconsin's Environmental Decade, Inc. v. Public Service Commission

others, Inc., Decade, Environmental Wisconsin’s Petitioners-Appellants, v. Public Service Commis Company, sion, Respondent: Electric & Madison Gas rvenor-Respondent.† Inte Argued 1978. June No. March 1978. Decided 76-768. 609.) (Also reported in 267 N.W.2d denied, rehearing costs, September 21, Motion for without † 1978. argu- appellants For the there oral were briefs and Kathleen M. Falle of Madison. ment respondent Commission, For the cause Public Service argued by counsel, Levine, Steven was chief assistant Schur, M. brief were Steven with whom chief on general. Follette, counsel, attorney and Bronson LaC. respondent Company, For and Electric Madison Gas Hansen, Richard K. John A. there was a brief Nordeng, Steingass, Rosenbaum, Susan Stafford, and Hansen, Rieser Hansen, & A. argument by John and oral all Madison. HANSEN,

CONNOR T. J. On November (herein- the Public Service Commission Wisconsin PSC) granting after entered order rate increases (hereinafter Company Madison Gas & Electric MG&E) gas for electric and natural service au- thorizing design. modifications in electric rate hearings during order followed series of testimony presented by and exhibits on were witnesses MG&E, PSC, intervenors, behalf Wisconsin’s Decade, (hereinafter WED), Environmental Inc. appellant appeal; on (FOE); Friends of Earth city Madison; People Responsible United for Energy (PURE). addition, In several testified in an capacity, generally individual opposition Appearances forty- rate increase. were entered some entering persons, apparently by three their names sign-up sheets.

In addition, previously, 1975, MG&E had 16, on June granted an been interim pending rate a increase final application. determination of its More than one hundred persons appearances had entered for increase, the interim which were conducted the under same subsequent PSC docket number as were pro- the ceedings which culminated in the order of November 9, 1976. entered, day was order 9, 1976, the the

On November to as referred (collectively Anderson and Peter WED county Dane for petitioned the WED), circuit Stats., 227.16, pursuant to sec. order, for of the review comply ground the it not with Wisconsin did on the Act, 1.11. Protection Environmental copies opinion, we assume purposes the For on petition review were served appellants’ for of the city PURE FOE, PSC, MG&E, the Madison the days thirty petition was filed.1 after the within appearance in the circuit a The filed notice PSC a appearance and court, and MG&E filed notice order, on different petition for review PSC second Following hearing grounds. appellants’ on motion injunction,2 the on December temporary PSC petition 20, for review 1976, moved for dismissal ground upon on had been served PSC upon had been served order PSC itself before alleged appellants, contravention of sec. 227.16 (1) (a), Stats. again January

On moved dis- ground missal, previously-stated and on on ground appellants had their further that the not served appeared for review all who had proceedings, allegedly required by sec. 227.16 (1) (c), Stats. granted, judgment

The motion to dismiss was was following appeals. entered accordingly, and WED presented: are issues made, WED states its brief that such service was respondents, MG&E, the PSC and do not contest this statement. However, only the record contains admission of service

the PSC. injunction temporary The record does not indicate whether granted. was requirements (1) (c), 1. notice Must the of sec. 227.16 Stats., complied subject be to invoke the matter with reviewing jurisdiction of a court? waived, estopped raising,

2. Has the or from any jurisdictional defect? dismissing

3. Did the petition? trial court err in petition 4. fatally pre- Was service for review mature? petition agency decision,

5. Must a for review of an 227.16, upon under sec. Stats., be served all en- tering appearance agency’s proceedings? in the

SUBJECT MATTER JURISDICTION. Stats., provides 227.16(1), part: Section relevant Parties (1) “227.16 review. Ex- for cept specifically by any provided per- as law, otherwise by aggrieved specified son a decision in s. 227.15 shall judicial provided be entitled to review thereof as in this chapter. “(a) Proceedings by for review shall instituted serving petition registered personally therefor or upon agency officials, the mail or one its filing petition such office of clerk of the county circuit court trial where the shall be held pursuant except to ch. 261 801.50 s. 261.01 [ss. 801.62] (9) 801.50(9)] (unless place a different of review [s. expressly provided by law), days is the all within after service of the decision all provided or, rehearing in s. 227.11 cases where a requested, days within 30 after service of the order finally disposing within 30 application rehearing, for such or days disposition by operation after the final any application rehearing. such Jaw “ (c) Copies of served, personally shall be mail, or, certified timely when service is admitted writing, by mail, class days first not later than 30 after the the proceeding, upon institution of all in agency proceeding appeared the who before For made. sought was reviewed which the order request shall agency upon purpose the the of such service all of addresses which certify such petitioner and the names the records, certifica- by parties its as disclosed tion conclusive.”3 shall be copies of a Stats., requires that 227.16(1) (c), Sec. than judicial served, not more petition for review be upon all days proceeding, thirty of the after institution pro- agency in the parties appeared before the ceeding in the order was made. language argues compliance with

WED that strict subject to take for the circuit court not essential is jurisdiction failure to case, the and that a of matter merely deprives non-agency party the trial court a serve party. personal jurisdiction over that only prerequisites there are two contends that WED Timely upon jurisdiction: (1) subject service matter making contested, and agency the the order which is filing petition court, timely of the (2) with the circuit 227.16(1) (a), under sec. Stats. both 3 by 1977, 68m, eb. As amended Laws effective August 1, 227.16(1) (a), Stats., provide: 1978, sec. will Proceedings by “227.16(1) (a) for review shall be instituted personally by serving registered petition therefor or mail filing officials, petition one of its the the or the county office clerk of the circuit court for the of the where the days trial to be after the the held within service of decision agency upon provided or, all in s. 227.11 cases rehearing requested, days within 30 after service of where finally disposing application rehearing, of the order for such days disposition by operation after within final of law of any rehearing. application proceedings The such be in shall county petitioner resides, except circuit where proceedings petitioner agency, is an if the shall be in the circuit county respondent proceedings court of the where the resides. The county petitioner of Dane be in the circuit court if the shall is a parties stipulate If all nonresident. the court to which the agrees, proceeding desire to transfer may any inbe circuit court.” conclusively rejected This contention this court was Cudahy Department Revenue, v. 66 Wis.2d (1974). taxpayer’s N.W.2d 570 That case involved petition for review of a tax decision of the Wisconsin appeals affirming imposed commission tax assessments department appeals of revenue. tax com- mission, agency making timely decision, as the was copy petition served with a The de- review. partment entirely of revenue, separate which is distinct commission, position from the was in the of a party appearing commission, before the and had not copy served been with a for review within thirty days after proceedings. institution comply held that failure to re- with the service quirements 227.16(1) of (c), Stats., left the circuit jurisdiction. court without quoted Department Monahan v. We Taxation, 22 of 167, 164,

Wis.2d (1963), N.W.2d another case department which the of revenue, party appearing as a before the of appeals, board tax had not been served: “ department ‘The appeared had proceeding the board in before which the board has entered its deci- May 3, 1962, sion and order of respect and with to which taxpayer sought the less tion for circuit court Therefore, review. un- department the was copy served peti- with the of required review within thirty-day the period, the circuit jurisdiction court would be without to con- ” duct the proceeding.’ review

Applying principle Cudahy, this supra, 258, at court held department that “the must be served aas party appeared agency,” before the and that: “. .. In the instant case there attempt was no to serve department the period until thirty well after day the statutory expired. had “. . . Under Monahan, petition the first properly was dismissed because of serve a of appellants failure the timely copy petition of upon the department the after proceedings. commencement of the . . . compliance with hold that there is “We now -unless Stats., 227.16(1), mandatory requirements of sec. subject matter effectively taxpayer cannot invoke Department

jurisdiction Cudahy v. circuit court.” Revenue, supra, at 262. of Despite holding Cudahy, asserts plain of WED 227.16(1) (c), upon under sec. service of Stats., precedent is not a to the invocation condition jurisdiction subject because the circuit matter court’s the institution such service is to made “. . . after proceeding, . . .” and because “instituted,” 227.16(1) (a), review are under sec. when agency and filed with is served the circuit court. compliance procedure not make sequence of does any requirements less essential statutory

with the service Hoyt, Ralph M. jurisdiction, however. court’s (see principal Stats. one of the authors ch. 673, 687, 203 Department, 56 v. ILHR Wis.2d Hamilton (1973)), explained the rationale N.W.2d drafters: serving the admin- appeal is taken “. . . The the circuit filing the clerk with istrative agency’s days thirty after court, service within appelant’s stating [sic] the nature of decision, a notice appellant grounds appeal. The his interest and must be affected directly aggrieved by the decision person may either thereby. of the notice Service thirty registered than mail. Not less personal or copies the appeal, of the days the institution after ap- parties on all who order must likewise be served notice proceeding. This peared in the administrative appeal prevent an adopted in order procedure was through all adverse being to serve failure lost from initially thirty-day period parties allowed, the close of before might in the of the well be instances as there upon very at the close decided appeal would be complicated more cases in some period and identity quickly the

might possible to ascertain not be appeared location all the in the proceeding Pro- Hoyt, .. Wisconsin Administrative .” cedure Act, L. 231. Wis. Rev. Thus the drafters that considered failure serve parties appeal within the allotted time result in an would being “lost,” thirty-day and therefore a full allowed period after proceeding institution of the for such ser- vice. Depart- Hamilton v. ILHR reliance of WED

ment, supra, proposition for the that the circuit court’s subject jurisdiction may matter be invoked without serving appearing agency proceeding is not well fully recognize founded and does not holding of Cudahy, supra. this court Hamilton in- volved an Department order Industry, Labor dismissing & Human Relations complaint of racial dis- against crimination filed the American Motors Cor- poration (A.M.C.). argued A.M.C. complain- that judicial ant’s review of the order was in- determining sufficient. In that failure to serve A.M.C. by registered mail was not fatal to the circuit court’s jurisdiction in Hamilton, emphasized this court present case, alleged unlike the where were given no notice whatever, Hamilton, . . there no doubt that A.M.C. [was] was in fact served limit, only within the time fault [was] registered mail was not used. A.M.C. was notified within statutory time; the to it has right not been misled nor its participate prejudiced any way. Hamilton, . . .” supra, at 687. throughout Indeed, in Hamilton, decision this court emphasized unique nature of the facts involved there. As a result of Department errors of In- dustry, Labor & Human Relations, department’s order had been defectively issued three times and had been reissued a fourth time. The complainant, Hamilton, sought

had time, review each Hamilton without success. sought transmitting by timely review the fourth order clerk of petition circuit court for review with filing charged fees, he $8 the amount had been previous petition effort to obtain for re- review. The view remained unfiled in the office of the clerk filing until period elapsed, after had and was then filing returned to Hamilton with the that a fee advice required. was $11 “ case,” “Under the said, facts the court ‘in legal contemplation,’ we hold the was filed with the clerk of court thirty-day statutory within the period department seek a review of Hamilton, order.” supra, at 685. repeatedly The court stated that deci its sion was made procedural case,” “under facts of this circumstances,” “under such and “under the of this facts case,” and that: “This is not the only case peti- where there was one . sought tion for review from one administrative order. Nor is it the case where the claimant did not seek com- pliance with 227.16(1), Stats., before the review period expired. had Nor a case where no accom- fee panied petition. Nor is it the peti- where case tioner his complied could have solely but did not because inadvertence, own negligence. mistake Rather, this is a case where, except department’s for the faulty procedures and the file, clerk’s unreasonable failure to

there would have compliance. been . Hamilton, . .” supra, at 688. Moreover, the evident intent of the court to limit holding of Hamilton particular to its facts was out borne this court’s Cudahy decision Case, supra. appellant Cudahy argued, as does WED present case, that Hamilton, supra, had determined failure appearing serve in proceedings could not affect subject the court’s matter jurisdiction. rejected argument Ham- court this and described distinguishable,” Cudahy, readily ilton as “unusual and supra, that, at Hamil- emphasized 261. The court while “ depart- where, except ton was ‘. . . a case faulty procedures ment’s and the clerk’s unreasonable ” file, compliance,’ failure to there have would been (i.e. Cudahy attempt party there had been no to serve department revenue) appearing before tax appeals commission, thirty-day period until well after expired. Cudahy, quoting had supra, 261, Hamilton, at supra, at 688. interpretation urged of Hamilton now WED proposed rejected supra.

was Cudahy, Strict compliance requirements with the service 227.16 (1) (c), Stats., subject juris- is essential matter diction of circuit court. AND

WAIVER ESTOPPEL. argues any next WED that the PSC has waived ob- jections jurisdiction of the circuit court and also that estopped raising any objec- the PSC is from such arguments tion. These are founded on the view that nonagency parties failure to serve personal defect of jurisdiction subject jurisdiction. rather than matter dispositive holding Cudahy Under Case, supra, however, prevents is clear that such a failure acquiring subject circuit court jurisdiction. from matter It is fundamental subject cannot confer jurisdiction matter on a court their waiver or con- 801.04, Stats.; DeDakis, Sec. sent. Gelatt v. 77 Wis.2d 578, 584, 254 (1977); 171 N.W.2d Joint School v. Wiscon- Rapids Asso., 292, sin Ed. 70 Wis.2d 234 N.W.2d 289 (1975) ; Vishnevsky (E.D. 1976), U.S. v. Wis. 418 Fed. subject Supp. jurisdiction 698. can Nor matter con- 516 Lucas, 3 Wis. Bd. v. R. E. Wisconsin by estoppel.

ferred Gaudynski v. ex rel. (1958); State 464, 2d 300 N.W.2d Jur.2d, Am. (1940); 20 Pruss, 600, 290 N.W. 233 Wis. Courts, p. 455, sec. 95. cited supra, 260, Cudahy, at

Thus, in Development, Department Local & v. Evans Affairs (1974), 626, 215 N.W.2d Wis.2d “ judicial jurisdiction for general proposition ‘. . . agen findings and orders of administrative review of the 227.16, compliance with sec. dependent strict cies jurisdiction not confer Stats., could and that ” The court by . . .’ or consent. waiver juris subject matter to that referred said this statement per jurisdiction, personal “because diction rather than by jurisdiction or consent conferred waiver sonal can be Cudahy, jurisdiction subject cannot.” matter whereas supra, at 260. argument waived, or is

Accordingly, that has the PSC jurisdiction estopped any re- asserting, defect from case, sulting allegedly inadequate in this from the service is without merit. OF PETITION.

DISMISSAL dismissing argues further that instead WED petition for should have extended review the court time for service. argument conclusively rejected

This was advanced and Cudahy, supra. in There this court held that failure to 227.16, comply requirements of with the service Stats., within the time allowed results circuit court having jurisdiction case, to act and the court not authority therefore lacks to extend the time for service. holding dispositive This here.

Alternatively argues the circuit court WED permitted should have its WED amend “statement position,” response petition submitted in by review which was filed MG&E obtain review aspects certain 9,1976, same order con- November by tested WED. WED would amend its statement position incorporate arguments so as by raised petition its own review dismissed the circuit court. argument misplaced. argument This is not an

against petition action, dismissal of WED’s argument but rather in favor of amendment of its position related, statement of judicial distinct, but review initiated MG&E. not does show record any effort was made to effect such an amendment. petition Dismissal of the preclude in this action did not seeking WED from an amendment which would effec- tively import into initiated MG&E arguments petition raised in WED’s for review. Such part efforts separate would be of those proceedings, how- ever, part and would not be appeal. the instant

If the proper parties, was not served on therefore, required. dismissal was THE

WAS PETITION FOB REVIEW FATALLY

DEFECTIVE? petition The circuit of court’s dismissal the for review ground. petition was also based on a second The the review of order PSC was served on the PSC before the order had PSC’s been served on WED. Sec. 227.16 (1) (a), Stats., provides petition that a for review shall days be “. . . served within 30 after the service of the agency upon of the parties. decision all . .”. The cir- cuit court considered the petition instant to have been fatally premature. there purposes

For review, the consider of this we requirements compliance was substantial with 227.16, represented sec. Stats. that was WED states meeting order 9, 1976, at the at which November approved; intimately was that familiar with it was con- preceded order, draft orders which with order; tents of final it had obtained and that unsigned advance, copy these of the In view of order. statements, petition the fact that was before served actually appear the order was mailed to not WED does requirements contravene to the extent 227.16, sec. jurisdiction. that the trial court lacked light purpose. A statute must be construed in of its primary purpose requirements The of the service 227.16, provide Stats., is notice. v. ILHR Hamilton Dept., supra, at That function had 687. here been purpose requirement The peti- of the that fulfilled. days tion be served within “after the service First, is peti- decision” twofold: it makes clear that a thirty days tioner full is afforded a seek review, delay any making and that between the of a decision and the time of service thereof not counted period; second, the calculation provision of this filing a petition fixes strict cutoff date for the of a purposes implicated review. Neither these here. argues policy there are sound reasons why ought petition precede for review not service sought reviewed, agree order and we with general proposition. this as Where the terms of the petitioner, order are not known to the premature peti- prove tion could to be inappropriate needless when subsequently the order received. was A for re- ought view not speculation be based on about contents of an order.

However, speculation there was no such ap- here. It fully pears apprised was WED contents

519 it PSC, was the order. The cited in which cases appeal filed after rendition held that an could not be entry of bench, of an oral from the decision but before judgment Kegu, v. (see, e.g., ex rel. Hildebrand State apposite. are not (1973)) Wis.2d 207 N.W.2d 658 grounds case, advisability appeal In such a may precise language judgment. In turn on the contrast, may approved, not PSC, order of the once hearing. Tele- be altered a Mid-Plains without new See: phone v. Public Comm., Serv. 202 N.W.2d Wis.2d (1973); 196.20, see: Stats. urged

Further, have construction could pernicious a effect where an order immediate threatens may petitioner. harm to a made PSC’s orders they 196.40, effective the time at are ordered. Sec. Stats. 227.16, however, party Under PSC’s view of sec. a judicial order, would be unable to seek review of the although effect, copy it in full until was a order party. case, was copies served on In the instant including parties, order mailed were not to various WED, days until several after the order was entered. Where, petitioner here, injunc- temporary seeks tion, gap prejudicial. such could well be

Therefore, presented, on the facts and in view of familiarity order, WED’s with the terms of fatally premature. was not BE

WHO MUST SERVED? hearings At the proceedings, various these those requested sign slip attendance were paper either a pad they or a if appearance During wished their noted. 6, 1976, hearing, the November entered their sign-up Following on the hearing, names sheets. 16, 1975, granted

on June MG&E was an interim rate During proceeding, increase. the interim appears rate in on persons of 100 entered their names excess Nearly sign-up the their persons who entered sheets. all sign-up names on their also entered addresses. sheets hearing Both the the No- interim-rate-increase and hearing 6th vember under the same were conducted PSC docket The en- number. record these compasses hearings several volumes and the con- were days. way ducted over no tell several There is to whether sign-up who entered their on the lists names day part were in entire attendance for or for the proceeding. difficulty

The with the case that at the conclusion proceedings, waiting without for PSC formally required enter and serve the final order as it is Chapter to do statute, undertook to initiate a WED doing so, 227 review. In it upon took itself to WED proper parties determine petition for service of its for review. Thus decided to serve WED its PSC, MG&E, FOE, city Madison, on and PURE. judicial independent WED now seeks determination proper has served all the in the PSC proceedings. correctly

As the trial observed, court a court is not obligated to search the records and ascer- PSC degree participation tain 'the many of each of the persons appearing hearings at the some formula they decide whether or not proper parties Chap- are to a ter proceeding. 227 review responsibility determining initial who has been party

admitted as a party determined to be a rests any with the If PSC. there is doubt as whom party, has thus determined obligation to be a it is the petitioner seeking request review to certification 227.16(1) under (c), Stats. Instead, the instant case, petitioner undertook to make its own inde- pendent determination as to the necessary proper parties. attention our directs respondent also

Counsel to this information submitted considerable in- position, appellants support their of this The submission de formation is hors the record. appellants’ material submission commences with directed correspondence brief in chief and continues with argument. Not oral even after court’s attention unnecessary only practice place burden does such importantly opposing court, more counsel and the but contrary practice. appellate Suffice it to the rules of is arriving not say decision, we have it to in at our the record is outside considered material submitted which not attempt supplement the record looked and the to so is upon with favor. dismissing peti- judgment

The trial entered appel- position in tion for review. While significant degree, is, of their find lants themselves making, a result in this case is own we conclude such unnecessarily and, in the discre- harsh exercise our justice remand tion, we dictates a conclude interest of the cause. to make remand,

On it will be incumbent on the PSC agency proceed- a determination toas ing upon appellants copies whom must serve required 227.16(1) (c), for review Admittedly, neither the statutes nor the Adminis- Stats. guidelines precise offer trative of Procedure Rules making a determination. such every- However, certain conclusions obvious. Not seem entering signs slip pad appearance one who or his at case, more of the sessions of a one or rate this case ipso nearly persons, is, facto, to be considered a purposes proceedings. party for review Neither it on a trial court examine the incumbent record of the proceedings the PSC to determine the before extent and signing appear- participation

nature of the of all judicial deter- slips post ance an ex facto thus make in a review proper parties served mination as to to be proceeding. the interest Also, proper neither nor in orderly the vari- proceeding of an to have a rate case their agency proceeding, ous whatever an examination purposes, status review make such inde- records and thus arrive at their own PSC pendent proper parties. determinations as to the Stats.,4 227.01(6), provides that:

Section ‘Party’ person “(6) means each named or Any person party. in- admitted as terests cy party.” whose substantial agen- may adversely by any proposed be affected action a contested case shall admitted as party” one leaves unresolved how is “admitted as a agency. the administrative question The rules of the do not PSC resolve this “parties” either. The to PSC are defined including complainants, Admin. Code 2.02 as Wis. intervenors, defendants, respondents, objec- applicants, petitioners. application tors In an for a rate increase “ [p] . . applicants objectors arties . than the other interveners,” are 2.02(3). Admin. Code Wis. These provisions say not party. do how one becomes a argues

The merely PSC that one party by becomes entering appearance. an proposition implied, by argues, PSC Admin. (4), Wis. Code 2.02 PSC provides that: May Appear’ “Interveners Their ‘As Interest fail who appearances

to resolve their further will be considered! Opposition’ to proceeding.” not ‘In to the cause which initiated the September 24, This section became effective 1976. Prior to date, 227, Stats., “party.” that ch. did not define the term language The all this shows that PSC maintains that persons ap- appear who “fail to their and who resolve pearances parties. further” are intervenors and thus responds language merely WED that that a this shows- person appearing, cannot intervene without and that equivalent saying ap- every person not to that who pears is an intervenor.

“Appearances,” purposes proceedings, are defined 9 Wis. Admin. Code PSC 2.32: Appearances. (1) desiring “PSC 2.32 person A to participate in a proceeding, whether on his own behalf agent or as an attorney, authorized or enter his shall appearance person giving his name and address and and in any party the name represents address he capacity employed by what party. he is such “ (2) appear Members of the commission staff neither support in to opposition any solely cause, nor but present, discover necessary, if pertinent facts the issues.” WED asserts practice persons is common for the attending hearing sign slips pads paper form circulated informally, appearances and that this is how are determined. provision embers of the “[m] commission appear”

staff do so support opposition, not in [who] merely but present pertinent elicit and facts, also suggest tends to that not appear all are parties. In case, forty-three instant twelve of the persons identified in appearances the PSC’s list of were PSC staff members.

The PSC’s are rules therefore inconclusive. can Nor guidance be found in federal practice. administrative It appears that competing both of the approaches advocated the instant adopted have been by federal agencies. example, For the rules of the Interstate Com- permit appearance merce Commission to be entered 524 filing provide intervention,

without and a anyone entering party to that a appearance becomes proceedings. contrast, In of the rules Securities Exchange permit Commission do not admission party unless would be first shown that admission public opportunity and either interest that an discretionary more participation limited “leave under to be petitioner heard” inadequate, would be that or may “aggrieved.” certain Davis, cases Ad- be See Treatise, pp. 559-572, ministrative Law 8.11. Daly In Board, v. Natural Resources 60 Wis.2d (1973), N.W.2d cert. den. U.S. this court held that members of the Menominee Tribe appeared hearing American Indians who had at a oppose county construction of a dam in Menominee were party entitled to status of their virtue status as citizens of the state and enrolled members of the tribe enjoy navigable entitled to use and “. . streams. . When appellants appeared rights priv- contested the ileges of applicant] they to construct [the dam be- meaning came within the 227.01(2), [sec. proceeding and the case,” Stats.] became a contested Daly court said. v. Natural Board, supra, Resources at 217, 218. understanding supports

This decision broad party. However, Daly necessarily term does not stand everyone proposition appearing for the in an admin- proceeding thereby party. ap- istrative becomes a pellants Daly members, were six tribal and the extent participation their is not clear from this court’s deci- However, they sion. the decision does show that were represented by permitted counsel and were heard themselves counsel and to conduct reasonable facts, cross-examination. On these it cannot be said that Daly proposition every stands for the member thereby be- providing name and address audience his party. comes a position with also consistent of the is PSC Development

language of Morris Howard Research & v. There, Corp., a tax- (1976). 417, Md. 365 Atl.2d 34 zoning hearing, payer appeared agency testified had aat opposition to cer- in as a witness and made statements zoning changes. his participation tain established saying: held, party proceeding, status as a to the the court Bearing “. for . . in mind that the format designed agencies intentionally before to administrative encourage participation, informal so citizen regula- agency we think that or other absent reasonable becoming providing tion of for a more formal method anyone party, clearly identifying a for himself to having record as in outcome interest being agency, thereby matter considered becomes party proceedings.” Research Morris v. Howard Development Corp., supra, & at 37. taxpayer However, that the in Morris we note involved Development Corp., supra, v. Howard Research & had appeared only opponent as the to the administrative action. determining party

We also in believe who is a purpose process pro- for the of in a review service party Stats., ceeding, 227.01(6), definition of in sec. above, very is intended “to indicate a broad basis for standing proceedings.” in administrative Judicial Coun- 1975, cil 414, Note to Laws of ch. 5. Section 227.01 defining case, (2), a contested reflects the intention qualification participation “that a low threshold of .” contested case be established. . . Judicial Coun- cil ch. sec. 5. Note Laws foregoing support considerations While tend to PSC, position nevertheless we conclude there are countervailing against concerns which tend to militate position proper of PSC its determination par- of a process in the commencement

ties service of Chapter proceeding.5 227 review

First, appearance slips to determine use objective identity precise or not a rate determining parties method of to an administrative ap- proceeding. list of previously noted, the PSC’s As 12 PSC pearances included the names this case However, these does not assert that staff members. with parties staff are to served members entitled be Although petitions that asserts review. PSC act, entering appearance casual an not an offhand or no ad- appearances in that list this case shows given persons appearing. were of the dresses several The in which record not reveal manner does appearances obtained, sign-up sheets were were whether entering among audiences, circulated or whether those appearance intentionally knowingly an were manifest- ing parties. a desire to become although

Further, the PSC asserts that it has con sistently making persons appearances to considered all parties, this assertion is undercut the certification procedures employed the PSC itself under sec. 227.16 (1) supra. (c), Stats., provision requires That an request certify petitioner to a and names ad parties dresses such a makes certification conclusive. The brief PSC states it is not the that practice certify petitioner ato the names persons appeared. all who have Rather, reported practice is to send a form letter to ap those who have asking peared, they whether certified, desire to be certify petitioner only those express parties. desire be treated as recognizes practice reflecting a distinction, a dif- degree in their of interest, ference between those who emphasize that We would our observations on this issue in no way relate to a consideration standing of who has to institute proceeding. such review merely appear. are This distinc- and those who recognized by au- explicitly tion has been more other Bay, Department In thorities. Inc. v. Public Save (1975), Utilities, 742, Mass. 322 N.E.2d recognized Supreme this dis- Court Massachusetts discussing tinction in the status of an environmental group Bay, Inc., known as in administrative Save The proceeding. record,” “From the court said: [the] appear Bay “. . . it does not in Save was any party formal Department sense before the or that sought it improperly but was denied leave to intervene. Bay’s appearance Department Save before the was limited to unsworn statements from two of its officers questioning and to per- informal of witnesses these sons at the end of the . sessions. . .” present In case, appears that the who were not part served had a less active than Bay did Save the proceedings, the Massachusetts they were participants proceeding. not actual squarely Welch, This distinction is most stated and Text Utility Regulation Cases on Public (rev. ed. 1968), identifying at 647. After the various cate- gories “parties of utility regulatory in interest” pro- ceedings briefly identifying and nature of each of categories, these Welch states that: “In parties addition case, to formal to the rate including intervenors, the commission or its examiner may permit any person representative also corpora- or of they tions or associations to be heard. But will not be proceeding designated.” unless so approach, under appear which those who are not ¡considered parties formally designated, unless so supported by policy implications considerations. The of according party full to status each hundreds, of the thousands, even of appearance who enter an case, rate power plant controversial nuclear construe- suggested by case, proceeding tion are or other PSC Welch, supra, at 647: regulatory entitles ‘party’ case in a “The as a status documentary pleadings, as copies to all one notice and of represented at present or opportunity

well to be hearings testimony conferences, and cross- to offer and submit, ques- generally witnesses, examine other and to challenge procedure tion, laid of the rules and evidence within may by itself The commission down commission. upon testi- at all times own . . . staff to submit call its mony bearing But any . . . point in the case. at issue testimony is and where such commission evidence right, put of record, have the into the other testimony.” course, to cross-examine staff with these ob- rules PSC are consistent party proceeding rules, servations. Under each these ;6 hearings, is entitled 2.30 to make to notice of PSC ; opening statement, (2) motions and an 2.81 PSC present evidence, 2.34; witnesses PSC to cross-examine present 2.37; evidence, and to receive rebuttal PSC copies prepared testimony other written submitted parties, hearing (7) ; in PSC 2.35 discretion examiner, copies documentary receive evidence sub- (6); depositions parties, mitted other PSC 2.35 to take witnesses, (3); 2.39 the com- PSC to obtain review hearing evidentiary of a rulings, mission examiner’s PSC 2.35(1) (a); briefs, 2.38; file exception to take PSC hearing to a rulings; 2.31(1); examiner’s and to copy decision, receive PSC’s PSC 2.04. The imply, sug- process rules considerations also due gest, copies briefs, pleadings motions other required would be documents to be served on the parties. 2.05, 2.38(2). various See: PSC are to be construed to Statutes avoid an unreasonable v. or absurd result. Schwartz ILHR Dept., 72 Wis.2d appearing are References to PSC Rules in Vol. Wis. Admin. Code.

529 217, Lynch ; 240 v. (1976) ex rel. N.W.2d 173 State Conta, ex 662, (1976); 71 State Wis.2d 239 313 N.W.2d Bardwell, rel. 239 Wis. Elec. Power v.Co. 71 Wis.2d always reject (1976). un- N.W.2d 78 an This court will reasonable construction of a where reasonable statute possible. construction Falkner Northern v. States Power Co., (1977). 75 Wis.2d N.W.2d Stats,

A construction of ac- 227.16(1) (c), party rights corded full status, participatory with all the person available under the rules, supra, to en- PSC each tering an appearance, would an To work absurd result. permit each persons appearing of hundreds agency proceeding witnesses, to cross-examine to make opening statements, depose witnesses, and to would produce chaotic, unmanageable pro- and interminable ceeding.

It relatively is no cases, doubt true that in most few appearing actually would exercise panoply rights full-fledged parties. available Nevertheless, urged by the construction the PSC could paralysis result in agency proceedings in a matter of controversy great public interest, leave would agency proceedings vulnerable to deliberate obstruction. In present days hearings thirty case more than held, hearing were transcripts and the are contained in persons appeared volumes. than More in the interim proceedings, persons ap- rate-increase and 43 peared permanent for the rate in- In other, particularly creases. controversial, cases persons appearing number of and the size of tran- script undoubtedly larger. are Yet, much under interpretation rules, every person PSC’s appearing entitled, proper would be request, copy to receive a hearing transcript charge. without 2.36. urged by The construction the PSC would thus enable any large group to which inclined strain was so delay proceed- financial resources of the ings by demanding and to transcript. copies individual Moreover, serving of or cost of nominal hundreds non-participating parties pleadings, copies all with of prohibitive motions and to briefs would no doubt be many parties participate who would and chal- otherwise lenge agency serving addition, In decisions. cost petition judicial upon parties for review hundreds of approach would be substantial.7 would Because effectively preclude judicial review of decisions many instances, contrary pur- we believe it is to the pose 227, Stats., of ch. which tois “ every *. . appellant opportunity get . afford the ground into the upon any court and secure a reversal that may countenance, long statute apprises so as he his grievance adversaries of the nature of his at least ” appeal hearing.’ the time the ILHR comes on for Hamilton v. supra, quoting Department, Hoyt. at

Further, party a definition of per- which included all appear sons who purposes would tend to frustrate 196.43, sec. Stats., prescribes procedure which for ob- taining injunctions staying orders PSC. Under statute, injunction no Chapter shall issue in a proceeding except upon review proper application, notice any hearing. commission and party, other and No injunction delaying suspending or the effect of a PSC may any order proceeding issue in other parties all unless proceedings in the PSC are also made judicial petitioner review, On required would not be to serve papers appeared and all notices who had before the agency. 227.16(2), true because Stats., provides every person served with the must review serve a responsive appearance twenty days notice of within thereafter participate proceedings order Only review. those persons serving appearance, permitted such notices of to inter petitioner proceeding, vene himself, are entitled to subsequent papers be served with and notices. identify- difficulty injunction. for an ing serving many could as hundreds statute, injunction purpose well defeat the remedy against provide imminent intended a swift may effective, and irreversible harm. An order become any may irreparable, inherent before harm become proper urged by made, service can if be the construction adopted. the PSC is availability agency parties

The re- of certification of objections proposed duces approach to the some agency the 227.16(1) (c), Stats., PSC. Under must, request certify petitioner the a review, of for the proceeding, names and the addresses the to certification this The stated conclusive. PSC’s practice communicating ap- persons all with who peared, certifying only express and of those who a desire to be treated as would reduce number persons to review, be served with the there- by reducing the procedural upon financial and burden a petitioner. addition, In approach permit this would persons appeared they who to determine whether wished parties, leaving to be treated as rather than this decision petitioner litigants. to the to active process certification is not without own short- its comings, guarantee however. There is no that it will be consistently applied. appear PSC does not to be bound any particular approach certifying parties.8 addition, may

In certification well be proc- too a slow temporary injunction ess to be used when a sought, 196.43, Stats., requires under sec. service all parties. imposed No time limit is on an in cer- brief, In its WED asserts that has PSC demonstrated a “predilection play ... fast and loose with its ministerial nothing certification duties. . . .” There is support in the record to forcefully this assertion and it is denied the PSC. Absent a contrary, record to the properly we complies assume the PSC with the certification statute. proceeding, injunction

tifying temporary parties. In justice applicable procedure such requires that damage irreparable permit action to avoid swift parties. dictate that policy concerns opinion are of the that We proceeding, the purposes Chapter review distinguish “principal from other parties” must PSC conclusion, reaching we appear. In this recognize do not present procedures PSC provide parties, motion for formal admission entry beyond of an otherwise, the mere intervene or parties” appearance, “principal are not self- identifying. great difficulty appears, may not as it first be as

however, identity of practical and as matter, principal parties may participants. to all be evident previous maintains that WED consistently distinguished litigants principal has between nonparticipating persons; distinction was litigants employed by principal the and the other PSC case; petition in this and that WED served review its litigants who, consensus, on those their own were regarded parties. argument

Again, largely is founded on references present outside to the matters record. These out- matters record, throughout the side cited in chief brief reply categories. WED, brief of are in two The first proceedings. are matters before the PSC unrelated However, copies pertinent portions of the of the records referred were not, exception, to with provided one to inappropriate It court. is therefore for this court judicial take notice of the files and records of the PSC proceedings. in these other category

The second relates to plead- documents and ings present proceeding in the part are not a unilaterally a list of the record. submitted WED has allegedly proceeding, present 37 documents in the served served, they along persons were with list of on whom were that there demonstrate that the considered PSC proceeding. five to this inadvertently argues

WED these documents were omitted from the record transmitted when PSC Assuming true, it record to the that to circuit court. responsibility remains the before to have they the court to con- the record which wish the court any If sider. the record submitted to incomplete duty inadequate, reason it is or opposing party properly supplemented to have the record fairly completely that the so court can consider presented. shows, far as the record no such issues So supplement the record was made in this motion case anyone only orWED else. This court can consider the parties present record it. which the Although challenge PSC and MG&E characteriza- actually WED, tion of one of documents listed accuracy dispute ap- neither them of the list. It many pears exchanged of the documents were served or among “principal parties” recognized by the five WED. originated appear Some of documents to have parties recognized by were directed to the five in its WED for review.

The evidence record, contained in the while it is not consistent, generally argument supports the there group litigants a small was active distinct from the general signed class of appearance list slips. complete neither consistent, While nor the rec- generally supports only ord view that partici- five pants parties actively were considered to be participating proceeding. in the

534 to construe

We conclude that it is unreasonable “parties” 227.16(1) (c), Stats., term as used in sec. sign slip or list appearance include all who an used proceeding. “parties” at a rate PSC term 227.16(1) mean those (c) sec. should be construed affirmatively persons or demonstrate entities which proceeding, active conclude interest and we it is the initial deter- incumbent to make identity parties. mination as of such remedy power appro- This court has to fashion a exigencies priate to it. needs case before 346, McDonald, Hunter v. 254 338, N.W.2d Wis.2d (1977) ; City du Town Fond du Lac v. Fond Lac, 531, 532, (1964). 525, Wis.2d 126 N.W.2d identify therefore We direct forthwith PSC shall principal parties proceeding those instant pursuant must be served with a for review 227.16(1) (c), Stats., sec. and shall so these advise parties by posture mail. In view of the unusual case, any thirty may, so identified within days perfect peti- after notice, service of such file tion for review of the order of November PSC’s notwithstanding specified the time limit sec. 227.16 (1) (a). suggest litigation unnecessary

We that confusion and by identifying principal could be avoided parties, purposes 227.16(1) (c), Stats., prior issuance of final order in before the PSC. opportunity orderly Further, review would be en- hanced if the were advised of the deter- PSC’s principal parties simultaneously mination as to the with proceedings. issuance the order in the The cause is reversed and remanded to the circuit court with directions to remand the case to the PSC for proceedings not opinion. further inconsistent with this Judgment By the reversed remanded. Court. — part (concurring ABRAHAMSON, J. SHIRLEY S. dissenting part). determina- The administrative Decade, Inc., tion which Environmental the Wisconsin (hereafter sought et appellants) al. to review in- circuit court awas Public rate Service Commission hear- crease order had which been issued after several ings through were April held on the matter from December 1975.

The petition on P.S.C. moved for review dismiss ground appellants petition had not their served parties “all appeared agency” who before the as re- granted quired 227.16(1) (c). sec. The circuit court dismiss, judgment the motion to was entered accord- ingly. majority opinion

The concludes that to serve failure parties appeared” statutory “all who within the time subject jurisdictional import limits is a defect matter parties and that because this court cannot name “all who appeared,” they it cannot were all determine whether Accordingly served within the time limit. the court judgment reverses the circuit court which dismissed ground action on the appellants had not served “all parties appeared.” who court also directs circuit remand the case to the P.S.C. for its determina- parties tion of appeared.” “all who The court then remedy” permits appellants “fashions a jurisdictional having avoid the satisfy defect failed to requirement the service should the list of “all P.S.C.’s appeared” who originally include not person any served. The court “party allows named appeared” by who presumably P.S.C.—which will appellants include the circuit court for —to review, though statutory even thirty-day period has words, statutory ended. In other time limitations begin again 227.16 when the P.S.C. issues the list appeared.” “all who majority I opinion believe the misinterprets import Although ch. 227. I would reach a result similar in under do so majority’s, I would practical effect to failure very hold that I would different rationale. statutory time “party appeared” within serve defect which subject jurisdictional limit matter is not a I would proceedings. requires the review the dismissal cause the judgment and remand reverse the circuit court a list permit to file the to the circuit court to P.S.C. it used parties appeared” and the criteria “all who compiling the list. “every Stats., when 227.11, provides that decision

Sec. signed . . . made, forthwith and filed shall be served 227.16 party each . . . .” Sec. [on] instituting proceedings (1) procedure sets forth the for “proceedings (a) provides for that review. Subsection by serving petition there- for be review shall instituted filing peti- agency such for . . . the . . . and . . . in the the court tion office the clerk of circuit days all within 30 the of the decision after service agency upon . .” parties provided in . . all s. 227.11 “copies petition 227.16(1) (c) provides Sec. the days after the shall be served . . . not later than ap- proceeding, upon parties institution of the all peared agency proceeding before in which the the sought order to be was made.” reviewed clearly provides proceed- The statute thus that review ings by serving agency filing are instituted and the petition thirty-day period. in court within Parties pursuant pro- 227.16(1) (c) are served to sec. after ceedings filing are on instituted. Service jurisdictional requirements necessary in court are proceedings. parties institute Service on the occurs acquires subject-matter jurisdic- court after circuit parties Failure to deprive tion. serve should not jurisdiction. circuit court of legislature clearly could have stated that service jurisdictional parties requirement

on the if it desired Procedure Compare that result. Administrative Iowa juris- explicitly Act makes service dictional. “Proceedings judicial instituted review shall he . filing . . . petition ... district judicial filing petition days Within ten after the of the of a copies review . . . mailed shall be

petitioner jurisdictional mailing all .... shall Such . . Code of 17A.19(2), . Sec. Iowa 1977. My analysis Stats., 227.16(1) (a) (c), of sec. Dept., accord with Hamilton v. ILHR 56 Wis.2d (1973). Hamilton In that case Mr. N.W.2d complaint charging filed a American with DILHR against Corporation (AMC) Motors had discriminated against him because of his race. ruled Hamilton DILHR serving appealed, AMC. Be- Hamilton DILHR and general attorney cause of in services, defects both the petition moved to the The circuit dismiss for review. dismissing petition. court entered order the This that, despite court held the in the defects the on service agency filing petition court, and in the service would be viewed as sufficient within sec. 227.16 (1) (a). Thus, concluded, this court the circuit court subject-matter jurisdiction had to review the defective, determination. Even if service on AMC was this acquiring defect did not affect the circuit court’s subject-matter jurisdiction. 227.16(1), “. . (cid:127) Stats., Sec. require does not A.M.C. to be served in order subject-matter jur- the court’s Rather, isdiction to only attach. one need serve the department file with the court. Service on A.M.C. required (1) in sub. of sec. thirty days 227.16 within after proceeding.’ the ‘institution of the “Service A.M.C. not necessary was subject-matter jurisdiction

to obtain was for —it purpose obtaining personal jurisdiction of over one of 538 Id. at agency proceeding.” parties appearing

687. pecu- language not limited Hamilton is from language withdrawn liar was the facts of that case. Nor Department Cudahy v. or overruled this court in of (1974), a case Revenue, 253, 570 66 224 N.W.2d Wis.2d controlling at bar. the case majority which the views merely law; reiter- Cudahy no new Indeed sets forth Monahan years earlier in ates the rule set forth eleven 167, 125 164, Department Taxation, v. 22 Wis.2d of (1963). 331 N.W.2d 167, Dept. Taxation, In Monahan v. 22 Wis.2d Department Cudahy v. (1963) N.W.2d (1974),

Revenue, 224 N.W.2d Wis.2d Tax court held that on determination review Department of Appeals Commission, failure to serve the defect, and subject jurisdictional Revenue was a matter jurisdiction the Com to review the circuit court lacked distinguishable are These cases mission’s determination. statutory special from the case at bar because of the relating Appeals provisions Tax Com review of the Although 227.16(1) (b) (d), mission. Sec. Stats. “agency” makes the decision Commission is subject 227.16(1), Department within sec. to review “respondent” named of Revenue is to be required participate and is the circuit review proceedings. 227.16(1) (b) (d), Sec. court’s review Stats. effect, Department has, in substituted statute “agency” Appeals in lieu of the Tax as the Com Revenue 227.16(1) (b). Department Service Sec. mission. necessary proceeding. to institute the therefore review is culminating Cudahy tax cases the In a series Appeals the Tax Commission and the held that has both be served the time Department Revenue must within 227.16(1), Stats., prescribed for the sec. tax- limits payer subject jurisdiction to invoke of the matter circuit court. controlling'

I do case not find tax these cases gov- at bar. cases, case, The tax unlike the instant are by special relating Appeals erned statutes Tax Commission. Department in the tax The of Revenue is “agency party” readily cases an to which is known petitioner partici- identified must which pate in proceedings. the review The instant case involves serving non-agency “parties” may numerous, who be may who not petitioner, to known or identified for participate who need not in the review they if do not wish to do so.

On prior cases, basis statutes and I would hold that appellants if the failed to “all serve parties appeared,” who dismissal of the not is required 227.16(1) (c) because service under not is subject a matter of jurisdiction. matter ultimately The result majority reached is incon- sistent with its conclusion that a defect in service non- agency parties jurisdictional. majority is opinion The concludes that failure serve within time limit jurisdictional, the circuit court “lacks authority extend time for service” and that “if the petition was not proper served on the parties . . . dis- required.” missal Nevertheless, was at the close of the opinion the court comes to the rescue the appellants, “fashioning remedy” gives appellants opportunity proceed judicial with review the P.S.C. they decision even comply jurisdic- if failed to with the requirement serving tional appeared.” “all majority cases enabling relies the court remedy” to “fashion a hold that equity a court of has the power adapt exigencies its remedies to and needs equitable case. doctrine applicable to cases subject-matter a court where jurisdiction; has it has 540 majority. by the

no relevance to case at bar as viewed gov- at jurisdictional the case bar is and If the defect is holds, majority by Cudahy Monahan, as erned Cudahy notes, Monahan majority then, also as the review, service like of a notice make clear that service specified, is period time appeal, of a notice of within jurisdiction and prerequisite an absolute appellant supreme power to allow court is without statutorily expiration of the to notice after serve held period. In we mandated Monahan discretionary power interest employ in the cannot its proceed 251.09, Stats.) appellant to justice (sec. allow to review, cannot use to because the court with a not al- jurisdiction “to sec. 251.09 where confer does Cudahy, ready at also exist.” 22 Wis.2d 171. See 361, Pitcher, Estate at Wis. Wis.2d (1942). 362, 2 N.W.2d logically hold- from court’s The result flows ing appel- jurisdictional that a in service is is that defect they opportunity if failed have no for review lants major- appeared.” parties “all who The result the serve ity contrary majority rationale of the reaches is opinion. majority P.S.C., remand,

The directs the to decide on parties appeared.” now “all who Because iden- who were tifying appeared” parties “all who before issuance unnecessary help to would avoid confusion and decision majority agen- litigation, recommends that hereafter identify parties appeared” prior “all who cies proceedings. decision issuance my view, statutory requires In scheme an admin- agency “all appeared” istrative determine who agency time no than the it issues its The later decision. identify appeared” “all must order to copy of its decision them. Wisconsin Ad- serve provides Procedure Act ministrative follows: hearing “Every following decision of an writing by findings shall be in accompanied fact and 227.10, conclusions of . .” law. . Sec. Stats. “Every made, signed filed, be decision when shall mailing by delivery, a personal served or forthwith copy party party’s to each to the or to the attorney of 227.11, record.” Sec. Stats. The interpretation statute in the in- whose at issue legislature’s stant assumption case reflects that all parties designated by agency will be at least the time a assumption decision is made. under- also legislative lies requirement purposes of al- that for lowing petitioner judicial to serve for review decision, agency certify of a “. . . the upon request shall petitioner the names and all addresses of such parties \i.e., parties agency appeared ‘all who before proceeding sought in the in re- which order be viewed as records, was disclosed its made’] certification 227.16(1) (c) shall be conclusive.” Sec. (emphasis added). legislature clearly The not con- did template agency’s that the parties “all determination of appeared” who would be made aat time when a review proceeding already had been time limit instituted on service was effect. requiring next issue consideration is who are “all

parties appeared.” who start with We first the statute. “party” The word is defined in 227.01(6) to mean sec. agency person “each party. named or admitted as a Any person may adversely whose substantial interests be by any proposed agency affected action in a contested party.” case shall be admitted as a Unfortunately, not definition does aid us in case, the instant it because appears procedure there was no pro- the P.S.C. ceeding naming persons parties admitting as or for parties. as 227.16(1) (c) merely require

Sec. not does service on parties. requires all It “upon parties service all who It proceeding.”

appeared in the before any- appeared . . adds phrase if the “who unclear thing party. to the word “ap- out, persons who majority points opinion

As the rules, “appear” in its pear” uses the word P.S.C. necessarily appeared before parties who are not “all must agency” proceeding upon in the whom service 227.16(1) (c). The circuit pursuant made to sec. parties who equated “appearances” P.S.C. with “all ap- “all who appeared” that not and concluded agree majority that I peared” with were served. record court, circuit was unreasonable as used it, appeared” “all to construe before are listed 227.16(1) (c), persons who Stats., as all making appearance. The P.S.C. as an flaw the reasoning by revealed an examination circuit court's “Findings lists of the of Fact and Order” which P.S.C. Among persons 43 “appearances.” the so the made who “ap- the listed are 12 of staff who members P.S.C.’s according terminology peared” are con- to P.S.C. but parties. ceded to not be underlying premise majority opinion, with

The determining agree, which I is that are “all who appeared” aspect of who is an the total administrative decision-making legislature process which the has dele- gated agency. making The to criteria be in used necessarily the decision must reflect such factors as the agency of proceeding, nature the nature the and effect made, the participation decision the nature proceeding. majority opin- in those involved the The it,is properly responsibility ion concludes the agency, each to court, develop not and an- appropriate proceeding the nounce such criteria in- Goulette, v. volved. State Wis.2d Cf. (1974).

N.W.2d majority properly establishing The cautions that in agency public’s an must balance the criteria interest in allowing proceeding participation broad in the review practical requiring financial difficulties majority petitioner persons. horde to serve a But goes too far when it concludes unreasonable “that it is 227.16(1) (c), ‘parties’ construe the term used in sec. as Stats., sign slip appearance persons all include who an suggest proceeding.” or list at a rate I that some- P.S.C. may very “parties times all such who well appeared” they may and other times not. majority opinion ap-

The “parties who describes peared” ways. in a multitude of ser- court indicates required upon “persons vice is or which affirma- entities tively proceeding,” demonstrate active in interest litigants,” “parties actively participating,” “active “principal parties,” “principal litigants,” “proper par- “litigants ties,” who, consensus, their own were re- garded parties.” sug- It is not if court is clear gesting guide multiple single criteria criterion to agencies identifying “parties appeared.” who majority

Another incidental matter raised parties’ references their the court submissions appeal of matters not On were record. peculiar problem. objected faced with a When P.S.C. “parties appeared” served, that not all were appellants were limited to an administrative rec- ord did deal with the not issue raised circuit court. evidence, did circuit take Nor Stats, 227.20, (or order the evidence, to take P.S.C. 227.19, Stats.) the see. on issue of the who P.S.C. viewed “parties appeared” as who or the criteria P.S.C.’s for designating “parties appeared.” who Accordingly, on appeal very there a limited permit is record which would this court to review the circuit court’s determination that on appeared.” was not made “all service who appellants the attempted Both P.S.C. have to over- the including come deficiencies record in their procedures relating discussions P.S.C. briefs “par- to not are discussions “appearances.” ties” and These inappro- It is corroborated evidence record. record. the priate outside court matters for a to consider practice procedures and If the to court is the consider the on agency of an not documented administrative take power to rely record, on court’s the must the judicial practices. procedures Whether notice of the judicial appellate notice of matter take will Currie, largely rests of the court. the discretion Appellate by Resort the Record Use Facts Outside Investigation, Independent to Judicial Notice & judicial frequently L. 39. taken Wis. Rev. court has agency. public of a notice in the office state records Heffernan, Appel- See cited in & Wisconsin cases Currie cir- (Rev. 1975). the late Under Practice Procedure 50 majority’s chiding appellants case, of this the cumstances submitting thereof records and summaries P.S.C. serving determining relating practice P.S.C. “parties appeared” Appellants who unwarranted. going not alone in were outside the record. The State majority opinion also went outside the And the record. very inappropriately on the it criti- relies material which appellants producing. cizes summarize, judgment

To I and re- would reverse the mand trial the cause the court with to order directions objecting P.S.C., service, which is file list persons “parties appeared who are who before proceeding.” willing If appellants are persons appearing list, those serve the P.S.C. grant appellants trial court should time reasonable persons. 801.15, to serve the Sec. Stats. When service completed, appellants should file an affidavit stat- ing they served named P.S.C. “parties appeared,” and the review go appellants If unwilling forth. would are to serve persons on list, those P.S.C.’s the issue arises as to the review available of the P.S.C.’s determination of “all appeared.” need We not face that question at this time.

In Deceased: re Blumreich, Caldwell, Estate Litem, his Eberlein, ad Appel- Guardian Frederic C. lant, Representative v. Personal Kaquatosh, Blumreich, Deceased, others, Estate of Herman Respondents. No. [Case 75-728.] Litem, Eberlein, Caldwell, Frederic C. ad Guardian Appellant, Deceased, Blumreich, v. Estate Kaquatosh, Representative, Respondent. Personal No. [Case 76-068.] 75-728,

Nos. 76-068. Submitted March 1978.— 30, 1978. Decided June (Also reported 870.) in 267 N.W.2d

Case Details

Case Name: Wisconsin's Environmental Decade, Inc. v. Public Service Commission

Court Name: Wisconsin Supreme Court

Date Published: Jun 30, 1978

Citation: 267 N.W.2d 609

Docket Number: 76-768

Court Abbreviation: Wis.