STACIE NELDAUGHTER, Complainant

MOUND VIEW CHEESE, Respondent

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 27, 1991. Complainant filed a petition for review of the Administrative Law Judge's decision on March 4, 1991.

For the reasons set forth in the attached Memorandum Opinion, the Commission has concluded that it lacks authority to review the decision of the Administrative Law Judge, and it therefore makes the following:

That the petition for review is dismissed.

Dated and mailed July 31, 1991

/s/ Kevin C. Potter, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ Richard T. Kreul, Commissioner

The Commission has dismissed the petition for Commission review because it has concluded that there was no statutory authority for the Administrative Law Judge (ALJ) to hear and decide the complaint in this matter and that there is, in turn, no statutory authority for the Commission to review the ALJ's Order.

The complaint in this case was filed with the Equal Rights Division on March 7, 1989, and alleged a violation of the "Public Accommodations" Law, sec. 942.04, 1987 Stats. At that time, the only statutory authority which the Equal Rights Division had with respect to complaints filed under the Public Accommodations Law was to investigate the complaint to determine if there was probable cause to believe that a violation had occurred, and to attempt to resolve the matter by conciliation if probable cause was found. Section 101.222(1), 1987 Stats. No authority existed for hearings to be held before ALJs or for appeals of their decisions to the Commission.

Pursuant to its statutory authority, the Equal Rights Division initiated an investigation of the complaint. On May 22, 1989 the Division issued a preliminary determination and order which concluded that the complaint was not timely and which ordered that the complaint be dismissed. This determination and order was served by mail on the parties along with a cover letter which recited that the Department had "closed" the case. Complainant sent a letter to the Division in June 1989 indicating a desire to "appeal" the decision, but on June 12, 1989 the Division responded with a letter which stated that there was no opportunity to appeal provided by law.

By 1989 Act 47, effective September 12, 1989, the Legislature repealed the Public Accommodations Law and recreated it in sec. 101.22, Wis. Stats. With certain exceptions not material here, the change in the law was wholly procedural. Specifically, the new law gave the Equal Rights Division authority to conduct hearings before ALJs on allegations of violations of the Public Accommodations Law, and it provided that decisions of ALJs could be appealed to the Commission.

In April 1990, Complainant filed a letter with the Equal Rights Division that renewed her request to appeal the dismissal of her complaint in this matter. On April 27, 1990, an Order on Appeal to Administrator was issued by the Equal Rights Division which set aside the preliminary determination and order and remanded the matter for further investigation. There then followed an Initial Determination of probable cause to believe that discrimination had occurred, a waiver of conciliation efforts, certification of the matter to hearing, and finally the decision of the ALJ which has now been petitioned to the Commission.

The Order on Appeal to Administrator concluded that the statutory change effective on September 12, 1989 should be considered retroactive because it was a procedural and remedial change, because the Legislature expressed no contrary intent, and because retroactive application would not disturb either contracts or vested rights, relying on Chappy v. LIRC, 128 Wis. 2d 318, 381 N.W.2d 552 (Ct. App. 1985), aff'd. 136 Wis. 2d 172, 401 N.W.2d 568 (1987). As a general matter, the Commission agrees. However, the doctrine that statutory changes relating to procedural or remedial matters can be given retroactive effect to proceedings arising before the effective date of the change, cannot be stretched to make the changes applicable to proceedings that are no longer even pending as of the date of the change. A procedural change can be given retroactive effect only as to matters that are pending on the effective date of the change. See Maier Construction, Inc. v. Ryan, 81 Wis. 2d 463, 469, 260 N.W.2d 700 (1978). The complaint in this matter was ordered dismissed on May 22, 1989, and a cover letter issued with the order of dismissal indicated that the Department had "closed" the case. The matter was thus not pending on September 12, 1989 when the procedural scheme for handling public accommodation discrimination complaints changed, and that change is thus irrelevant.

The Order on Appeal to Administrator further reasoned that the dismissal of the complaint "was never made a final order . . . since no notice of appeal [presumably reference to a notice of appeals rights was intended] was ever issued." The Commission supposes that what the author of the order had in mind here was the provisions of sec. 227.48(2), Stats., which provides:

"Each decision shall include notice of any right of the parties to petition for re-hearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under s. 227.49(1) for filing a petition for re-hearing, under s. 227.53.(1) (a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection."

This reasoning is unpersuasive, however, because at the time, there was no right to appeal the decision in question. Section 227.48(2), Wis. Stats., obviously anticipates this, since it indicates merely that each decision shall include notice of any right of the parties to seek review. In this case, since there was no such right, there was no failure to comply with any obligation to notify the parties of any such right. In any event, the Equal Rights Division expressly notified the Complainant, by the letter of June 12, 1989, that there was no right to appeal the decision, and this can be seen as meeting any obligation that might be implied from sec. 227.48 (2) , Wis. Stats. , to notify parties even of the absence of a right to appeal.

Another reason that the rationale of the Order on Appeal to Administrator cannot be accepted, is that it would lead to absurd results. It is not possible to distinguish the complaint in this matter, which was acted on and closed by the Equal Rights Division prior to September 12, 1989, from the countless other complaints of public accommodations discrimination filed with the Equal Rights Division over the years, which were investigated and disposed of (either by a conclusion that no probable cause existed or by efforts at conciliation) prior to September 12, 1989. According to the rationale of the Order on Appeal to Administrator, by amending the Public Accommodations Law in 1989, the Legislature effectively resuscitated every single public accommodations complaint that had ever been filed with the Equal Rights Division but was no longer pending. The patent unreasonableness of this construction suggests that it is not valid.

In summary, because the complaint in this matter had been dismissed and closed out by the Equal Rights Division prior to September 12, 1989, the Equal Rights Division had no authority (and gained no authority by the subsequent amendment of the Public Accommodations Law) to conduct further proceedings in the matter, and the Commission acquired no authority to review action on the complaint by the Equal Rights Division. In the absence of any statutory authority to entertain the petition, it must therefore be dismissed.

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