Down Goes Deference

Jan 23, 2019 | Barret V. Van Sicklen

For decades, Wisconsin courts afforded deference to administrative agencies’ interpretations of law. As I previously wrote about in the Wisconsin Law Journal, The Wisconsin Supreme Court essentially ended this practice in its Tetra Tech EC, Inc. v. DOR decision: “We have also decided to end our practice of deferring to administrative agencies’ conclusions of law.”

In the wake of this decision, the Wisconsin legislature recently amended the statutes concerning agency review to comport with this decision. Among other things, under Wis. Stat. §227.57 the legislature created Wis. Stat. §227.57(11) which reads: “Upon review of an agency action or decision, the court shall accord no deference to the agency’s interpretation of law.” Similarly, under Wis. Stat. §227.10 the legislature created Wis. Stat. §227.10(2g) which reads: “No agency may seek deference in any proceeding based on the agency’s interpretation of any law.”

Given the decision in Tetra Tech and the change in statute we may see more challenges (and potentially successful challenges) to agency decisions.

About The Author

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Barret is a partner in DeWitt's Madison office. He is a Co-chair of the firm's Litigation Practice Group and counsels clients in the areas of Construction, Labor & Employment Relations, Real Estate, and Land Use & Construction Law. Barret can be reached by phone at 608-252-9386.

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