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COURT OF APPEALS DECISION DATED AND RELEASED November 2, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1366
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
BETTY PFISTER,
Petitioner-Appellant,
v.
CITY OF MADISON,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Dane County:
ROBERT DE CHAMBEAU, Judge. Affirmed.
Before Eich, C.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Betty Pfister appeals from an order affirming the
decision of the City of Madison regarding her classification for use of the bus
system. We affirm.
The City has adopted
standards, pursuant to the Americans With Disabilities Act, for determining who
is entitled to paratransit services and who must use regular fixed route bus
service. Pfister seeks to be classified
for paratransit eligibility pursuant to 49 C.F.R. § 37.123(e)(3), known as
"category 3." The rule
provides in relevant part that a person is paratransit eligible if she is:
[An] individual with a disability who has
a specific impairment-related condition which prevents such individual from
traveling to a boarding location or from a disembarking location on [a fixed
route] system.
(i) Only a specific impairment-related condition
which prevents the individual from traveling to a boarding location or from a
disembarking location is a basis for eligibility under this paragraph. A condition which makes traveling to [a]
boarding location or from a disembarking location more difficult for a person
with a specific impairment-related condition than for an individual who does
not have the condition, but does not prevent the travel, is not a basis for
eligibility under this paragraph.
By a letter from the
Metro Plus operations manager dated August 10, 1992, the City informed Pfister
that she had been certified under an eligibility category different from the
one cited above. Pfister appealed that
decision to the Madison Metro Transit System Manager, Paul Larrousse, seeking
eligibility under category three.
Larrousse denied that classification, and Pfister appealed to the City's
Americans With Disabilities Act Paratransit Plan Oversight Committee Appeals
Hearing Panel. The panel also denied
Pfister's request. Pfister sought
review of that decision by a petition for certiorari in the circuit court. The circuit court affirmed, and Pfister now
appeals.
Review on certiorari is
limited to whether: (1) the agency kept within its jurisdiction; (2) it acted
according to law; (3) its action was arbitrary, oppressive or unreasonable and
represented its will and not its judgment; and (4) the evidence was such that
it might reasonably make the order or determination in question. Coleman v. Percy, 96 Wis.2d
578, 588, 292 N.W.2d 615, 621
(1980). On certiorari review, we apply
the substantial evidence test, that is, whether reasonable minds could arrive
at the same conclusion reached by the agency.
State ex rel. Richards v. Traut, 145 Wis.2d 677, 680, 429
N.W.2d 81, 82 (Ct. App. 1988).
Pfister argues that the
panel did not act according to law because it failed to provide
"separation of functions," that is, a decision by a person not
involved with the initial decision to deny eligibility, as required by 49
C.F.R. § 37.125(g). Her argument
is based on the fact that the panel considered the letter by Paul Larrousse
from which Pfister appealed. We reject
the argument. Larrousse did not sit on
the panel. No member of the panel was
involved in the initial decision.
Pfister argues that the
record returned by the City in response to the writ of certiorari is
defective. First, she argues that
certain medical exhibits she introduced at the hearing were not included in the
return. Pfister did not make this
argument in the trial court, but simply attached the exhibits to her
briefs. The City did not object. Certiorari review of issues not raised in
the trial court is discretionary. Westgate
Hotel, Inc. v. Krumbiegel, 39 Wis.2d 108, 112 n.1, 158 N.W.2d 362, 364
(1968). Because the City did not object
and the exhibits are available for our review, there appears to be little point
in remanding. We will consider those
exhibits in addressing Pfister's argument concerning sufficiency of the
evidence.
Pfister also argues that
the record was defective because there are a number of places in the transcript
where comments by Pfister or her advocate are described as
"unintelligible." Pfister
does not argue that the missing portions affect our ability to review the
matter. Rather, she notes that most of
the omissions are in passages during which she or her advocate was speaking,
and that the omissions "raise serious questions as to whether the panel
members were listening only to Madison Metro and were not particularly
interested in whether Ms. Pfister's case was being presented in an intelligible
or audible manner. This leads to an
inference of prejudgment or bias on the part of the panel members." We reject the argument. It is not reasonable to infer that the panel
was biased.
Pfister argues that the
committee should not have relied on Larrousse's earlier decision letter because
parts of it were read to the panel by the City's representative during his
closing argument, rather than being introduced as an exhibit, and closing
arguments are not evidence. Pfister
also argues that the City's advocate made other comments, amounting to
testimony, during closing argument.
However, even if we were to disregard this material, we would still
conclude, as we do below, that the panel's decision was supported by
substantial evidence.
Pfister argues that the
panel's findings and conclusions regarding her vision impairment, mobility
impairment, and migraines and seizures were not supported by the evidence. The panel found that Pfister has impaired
vision, impaired mobility, and migraines
and seizures. The panel then addressed
each of the conditions separately.
The panel's finding as
to vision was: "People with more
severe vision impairments than Ms. Pfister have to use the fixed route
buses." The panel concluded:
"Ms. Pfister['s] visual impairment does not qualify her for category 3,
because people with more severe impairments are category 2 and are riding the
fixed route buses." We note that
it is irrelevant what other riders do, since the question is whether Pfister
is prevented from traveling to a boarding location. However, the implied finding is that Pfister
is not so prevented. This finding was
supported by testimony from a paratransit driver that on several occasions
Pfister had asked to be dropped off at one location and would then make her way
to her ultimate destination on her own, and that this involved traveling
several blocks in downtown Madison. The
panel could reasonably conclude that Pfister is not prevented from going to a
boarding location.
Regarding Pfister's impaired
mobility, the panel found: "Many
people with similar mobility impairments will ride accessible fixed route
buses." It concluded: "The fact that Ms. Pfister uses a power
wheelchair or three wheeled scooter does not qualify her for category
3." As above, it is irrelevant
what others do. However, the implied
finding is again that Pfister's impairment does not prevent her from traveling
to a boarding location. Based on the
above evidence, the panel could reasonably make this finding.
Regarding migraine
headaches and seizures, the panel found:
"Anything can trigger migraines.
Ms[.] Pfister's are triggered by sunlight and extreme heat or cold. The letters presented to the panel as
evidence do not address the frequency or intensity of the migraines and/or
seizures." It concluded: "The panel has decided that the
migraines and seizures were not presented as being chronic and do not present a
barrier to Ms[.] Pfister's ability to get to and from a bus stop. This criteria comes from both the Madison
ADA Compliance Plan and the Federal Regulations." The panel could reasonably conclude that
migraine headaches do not prevent travel to a boarding location. Pfister did not submit evidence as to the
nature, frequency or cause of her seizures.[1]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.