PUBLISHED
OPINION
Case No.: 95-0797
Complete Title
of Case:
STEPHEN E. LEE,
Petitioner-Appellant,
v.
LABOR & INDUSTRY REVIEW COMMISSION,
Respondent-Respondent.
Submitted on Briefs: April
10, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: May
21, 1996
Opinion Filed: May 21, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If “Special”, JUDGE: WILLIAM J. HAESE
so indicate)
JUDGES: Wedemeyer,
P.J., Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
the petitioner-appellant, the cause was submitted on the briefs of Stephen
E. Lee, pro se.
Respondent
ATTORNEYSOn behalf of
the respondent-respondent, the cause was submitted on the briefs of James E.
Doyle, attorney general, and David C. Rice, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED May 21, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0797
STATE
OF WISCONSIN IN COURT OF
APPEALS
STEPHEN E. LEE,
Petitioner-Appellant,
v.
LABOR & INDUSTRY
REVIEW COMMISSION,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
FINE,
J. Stephen E. Lee appeals from an order dismissing without
prejudice his petition for a Chapter 227 review of a determination by the Labor
and Industry Review Commission that Riteway Bus Service's refusal to hire him
as a school bus driver did not unlawfully discriminate against him. Although Lee has not provided this court
with a transcript of the trial court's oral decision, the parties do not
dispute that the trial court dismissed Lee's action because he did not file a
brief as the trial court had ordered.[1] The only issue presented on this appeal is
whether the trial court can require that briefs be filed in actions seeking
review of an administrative agency's determination, and, if so, whether the
trial court may dismiss the action if the party seeking review of the agency
determination does not file a brief. We
affirm.
Section 227.57, Stats., provides that judicial review
of an administrative agency's decision “shall be conducted by the [circuit]
court without a jury and shall be confined to the record.”[2] Lee argues that this prevents the circuit
court from requiring that the parties submit briefs. We disagree.
Chapter 227, Stats., “provides a comprehensive,
fully defined, procedure for judicial review,” Wisconsin's Environmental
Decade, Inc. v. Public Serv. Comm'n, 79 Wis.2d 161, 170, 255 N.W.2d
917, 923 (1977), and “judicial review of `decisions and orders of
administrative agencies' must be had `as set forth in ch. 227,'” Metropolitan
Greyhound Mgmt. Corp. v. Wisconsin Racing Bd., 157 Wis.2d 678, 697–698,
460 N.W.2d 802, 810 (Ct. App. 1990) (citation omitted). Nevertheless, Chapter
227 declares: “Compliance with this
chapter does not eliminate the necessity of complying with a procedure required
by another statute.” Section 227.02, Stats. Of course, that “procedure required by
another statute” must not violate Chapter 227.
State v. Walworth County Circuit Court, 167 Wis.2d 719,
723, 482 N.W.2d 899, 901 (1992). Stated
another way, statutes and rules governing civil actions in the circuit court
apply to Chapter 227 reviews as long as those provisions do not conflict with
Chapter 227. Metropolitan
Greyhound Mgmt., 157 Wis.2d at 698, 460 N.W.2d at 811.
Inherent powers
“logically derive from responsibilities.”
Forrest McDonald, Novus Ordo
Seclorum 149 (1985). “The courts
established by the constitution have the powers which are incidental to or
which inhere in judicial bodies, unless those powers are expressly limited by
the constitution.” State v.
Cannon, 199 Wis. 401, 402, 226 N.W. 385, 386 (1929). Thus, courts have the inherent power to
facilitate the efficient conduct of judicial business. Carlson Heating, Inc. v. Onchuck,
104 Wis.2d 175, 180–181, 311 N.W.2d 673, 676 (Ct. App. 1981).
Judges, unlike Athena,
do not come into this world fully armed—either with knowledge or wisdom.[3] Judges need the parties' assistance in all
contested disputes, including Chapter 227 reviews. The administrative record in this case is approximately an inch
thick. Requiring the parties to file
briefs designating those portions of the record as well as legal authority that
support their contentions is well within the circuit court's inherent
authority. Accordingly, the circuit
court had the inherent power to require the parties to this Chapter 227 review
to file briefs.[4] We now turn to the circuit court's authority
to dismiss the case because Lee did not file a brief.
“A circuit court's
decision to dismiss an action is discretionary”; it will not be disturbed on
appeal unless the circuit court erroneously exercised that discretion. Johnson v. Allis Chalmers Corp.,
162 Wis.2d 261, 273, 470 N.W.2d 859, 863 (1991). Circuit courts have both statutory authority and the inherent
authority to dismiss an action if the party seeking judicial relief fails to
obey court orders. Id.,
162 Wis.2d at 274–275, 470 N.W.2d at 863–864.
As noted above, “the provisions governing civil actions in the circuit
court apply to Chapter 227 reviews as long as those provisions do not conflict
with Chapter 227.” Rule 805.03, Stats., is such a provision.
It gives the circuit court authority to dismiss an action if, inter
alia, a “claimant” fails to prosecute his or her action, or if any party
fails “to obey any order of court.” A
dismissal, however, is warranted only if the failure to comply with the court's
order is “egregious.” Johnson,
162 Wis.2d at 275, 470 N.W.2d at 864. A
party's failure to comply with a court order is “egregious” unless the
defaulting party shows “`clear and justifiable excuse'” for the failure. Id., 162 Wis.2d at 275–276,
470 N.W.2d at 864 (citation omitted).
Rather than attempting to make that showing, Lee contended that the
circuit court's briefing schedule was unlawful.[5] Under these circumstances, we cannot conclude
that the circuit court erroneously exercised its discretion in dismissing Lee's
Chapter 227 review petition.
By the Court.—Order
affirmed.
[1] It is the appellant's burden to ensure that the record is sufficient to address the issues raised on appeal. State Bank of Hartland v. Arndt, 129 Wis.2d 411, 423, 385 N.W.2d 219, 225 (Ct. App. 1986); see Rule 809.15(1)(a)(6), Stats. (The record on appeal shall include the “[o]pinion of the [trial] court.”).
[2] Section 227.57(1), Stats., also provides that the circuit court may take testimony if the petition for judicial review alleges “irregularities in procedure before the agency.” This exception does not apply here.
[3] Athena was one of the Greek divinities. Prior to her birth, Zeus swallowed her mother, Metis, and Athena sprang from Zeus's head in a complete set of armor. E.H. Blakeny and John Warrington, Smaller Classical Dictionary 48 (1958). Athena “was the personification of wisdom.” Id., at 49.
[4] Rule 802.10(3), Stats., which permits the circuit court to issue a scheduling order, does not apply to “appeals taken to circuit court.” Rule 802.10(1), Stats. This provision does not, therefore, apply here. By the same token, the pretrial order permitted by Rule 802.11(4), Stats., which would encompass the “[f]iling and exchanging of trial briefs,” Rule 802.11(1)(L), Stats., envisions that the order be issued after the holding of a pretrial conference. The record does not reflect that a pretrial conference was held in this case.