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COURT OF APPEALS DECISION DATED AND RELEASED October 24, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0522
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JERRY LU EPSTEIN,
Petitioner-Respondent,
v.
JOHN T. BENSON, STATE
SUPERINTENDENT OF
PUBLIC INSTRUCTION, IN
HIS OFFICIAL CAPACITY,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
MICHAEL P. SULLIVAN, Judge. Affirmed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. John T. Benson, State Superintendent of
Public Instruction, appeals from an order of the circuit court reversing his
administrative decision to revoke Jerry Lu Epstein's teaching licenses. Benson claims the circuit court erred in
concluding that he violated §§ 227.46(4) and 227.46(6), Stats.
Because Benson's conduct in this case clearly violated these statutory
dictates, we affirm the circuit court order and remand to the circuit court
with directions to remand to the administrative forum for further proceedings.
I. BACKGROUND
This case involves a
school teacher, Epstein, whose teaching licenses were revoked in the aftermath
of criminal charges that were filed against her relating to a shooting
incident. On June 30, 1992, Epstein
shot and killed her former son-in-law when he made threats against the life of
her daughter and grandchildren while backing up his automobile toward a parked
car with the children in the rear seat and her daughter partially in the
car. Epstein had access to a loaded gun
because she was carrying it in her purse.
She said the gun was in her purse because she was going to target
practice later that day. She kept the
gun in her home for protection and only carried it with her in her purse when
going to target practice. Epstein was
acquitted of all criminal charges arising out of this incident with the
exception of a carrying a concealed weapon charge.
In April 1993, the
Department of Public Instruction issued a notice of probable cause and intent
to revoke Epstein's teaching licenses.
A three-day hearing was held before hearing examiner Dr. Julie
Underwood, Esq. Superintendent Benson
did not attend any portion of the hearing.
The Department was represented by Attorney Kathleen Kalashian. The hearing examiner issued her decision in
January 1994, finding that the Department had not proven by clear and
convincing evidence that Epstein had committed an immoral act and that Epstein's
actions in this shooting incident did not have a nexus to, or endanger, the
health, welfare, education or safety of any pupil.[1]
Kalashian filed
objections to the hearing examiner's decision and submitted alternate findings
of fact and conclusions of law recommending that Epstein's teaching licenses be
revoked. In February 1994, Benson
summarily reversed the hearing examiner's decision and adopted Kalashian's
alternative conclusions and decision.
He neither gave Epstein an opportunity to object to this new decision
nor did he set forth any explanation for his departure from the hearing
examiner's decision. Epstein filed a
Chapter 227, Stats., appeal. The circuit court reversed Benson's decision
because of his failure to comply with certain statutory requirements. Benson now appeals.
II. DISCUSSION
Benson argues that the
trial court's analysis of the statutory provisions at issue was incorrect and
that an independent statutory analysis reveals that he did not violate any
statutory provisions in issuing his final decision. Epstein argues that the plain language of these statutory
provisions required Benson to follow certain procedures, which he did not. In reviewing a circuit court's ruling on an
administrative decision, we apply the same standard and scope of review as that
which the trial court employed when it reviewed the agency's decision. Barakat v. DHSS,
191 Wis.2d 770, 778, 530 N.W.2d 392, 395 (Ct. App. 1995). Our standard of review under Chapter 227, Stats., is governed by § 227.57, Stats.
The subsections of § 227.57 delineate the specific scope of review
depending on the issues raised. The
subsection applicable to the instant case is § 227.57(4), Stats., which provides that “[t]he
court shall remand the case to the agency for further action if it finds that
either the fairness of the proceedings or the correctness of the action has
been impaired by a material error in procedure or a failure to follow
prescribed procedure.” In order to
determine whether any procedural violations occurred, we must analyze the statutes
involved. Statutory analysis presents a
legal issue that we review de novo.
L & W Constr. Co., Inc. v. DOR, 149 Wis.2d 684,
688-89, 439 N.W.2d 619, 620 (Ct. App. 1989).
The statutes at issue
are §§ 227.46(4) and (6), Stats.,
which provide in pertinent part:
(4) [I]n
any contested case, if a majority of the officials of the agency who are to
render the final decision have not heard the case or read the record, the
decision, if adverse to a party to the proceeding other than the agency itself,
shall not be made until a proposed decision is served upon the parties and an
opportunity is afforded to each party adversely affected to file objections and
present briefs or oral argument to the officials who are to render the
decision.
....
(6) The functions of persons presiding at
a hearing or participating in proposed or final decisions shall be performed in
an impartial manner.
The
procedures required by these statutes are clear and unambiguous and, therefore,
must be applied as written. See Ball
v. District No. 4 Area Bd., 117 Wis.2d 529, 538, 345 N.W.2d 389, 394
(1984). Although we review this case
without deference to the circuit court's decision, we agree with the circuit's
court's statutory analysis.
Accordingly, we adopt the following portion of its decision as our own:
The petitioner states that since Attorney
Kalashian was the person who reviewed the record and prepared the
Superintendent's decision, that decision violates subsection (6) of
§227.46. That is because as the lawyer
who presented the Department's case against Epstein, Kalashian can hardly be a
person performing in an “impartial manner.”
I agree. Kalashian's position in
this matter was clearly adversarial. At
Epstein's hearing, she presented evidence on behalf of the Department of Public
Instruction, a body that had informed petitioner it was considering revoking
her teaching licenses. Kalashian took
the Department's position (license revocation) when filing a proposed decision
and order. She simply was not
performing in [an] impartial manner.
Nor
should she have been. Attorney
Kalashian was merely doing her job.
What Chapter 227.46(6) requires is that the decision-maker and
those participating in the proposed or final decision act
impartially. Therefore, since Kalashian
was, in effect, the DPI's prosecutor at Epstein's hearing, she could not then
be the person [who] review[ed] the record and submit[ed] a proposed
decision. The plain language of the
statute requires that someone other than an advocate at the hearing prepare the
proposed decision. Therefore, it was
for the Superintendent to either review the record himself or assign some other
- impartial -person in his office to do it for him and advise him on the
matter. A proposed decision - if
adverse to Epstein - should then have been served upon her pursuant to
§227.46(4) so she could react to it and argue her case to the person who would
render the decision, presumably Benson.
The respondent argues that such a literal
reading of Chapter 227 is inappropriate and that there was substantial
compliance with the intent of the law.
He further argues that it is an unreasonable burden on him to review the
voluminous records in each case he is to decide. The answer to the first argument of the Superintendent is contained
in the previous paragraph. As to his
second argument, §227.46 does not require him personally to review all
the records in all the cases he must decide, only that some impartial person
read the record and prepare the proposed decision.... The case must, therefore,
be remanded for compliance with Chapter 227 of the statutes and the preparation
and filing of new documents bringing this administrative hearing to conclusion.
(Emphasis
in circuit court's decision).
We add to the circuit
court's analysis only to address additional arguments raised by Benson. First, Benson contends that
§ 227.46(4), Stats., does
not apply to this case, but rather § 227.46(2), Stats., applies. We
do not agree. The introductory language
of § 227.46(4)—“in any contested case”—allows the application of this
subsection to the instant case because it was contested. Therefore, Benson was required to serve his
“proposed decision” on Epstein and afford her the opportunity to object and present
briefs or oral argument.
Second, Benson contends
that the impartiality requirement of § 227.46(6), Stats., was not violated when Kalashian submitted her own
findings, conclusions and decision. We
agree. Kalashian was free to submit
such proposals. The violation occurred,
however, when Benson adopted Kalashian's suggestions in toto without
examining the record. Thus, the
decision, in essence, was Kalashian's decision because Benson adopted her
position without having any independent knowledge of the particular
circumstances. As a result, the
decision was not an impartial one.
In sum, we agree that
material errors in procedure occurred when Benson did not comply with
§§ 227.46(4) and (6), Stats. Therefore, in accord with § 227.57(4), Stats., we remand this case to the
circuit court with directions to remand it to the administrative forum to
correct the statutory violations that occurred.[2]
By the Court.—Order
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.