MULLIKIN, LARSON and SWIFT LLC
Attorneys at Law
Jackson, Wyoming

APPEALING THE DECISION OF AN ADMINISTRATIVE AGENCY OR COURT OF LIMITED JURISDICTION

Appealing the decision of a court of limited jurisdiction (a municipal or circuit court ) is controlled by the same Rules of Appellate Procedure as an appeal from the decision of a district court. The thicket of rules becomes more dense with an appeal of an administrative agency’s decision, however, and appealing the decision of an administrative agency has merited its own rules of appellate procedure (W.R.A.P. 12 - 12.12). Appealing the decision of an administrative agency also is subject to the requirement that administrative remedies be exhausted. Both types of appeals are taken to the district courts (fn1), and a district court may reverse, vacate, remand or modify a judgment or order made by an administrative agency or court inferior in jurisdiction to the district court .(fn2)

Exhausting administrative remedies is important for more reasons than the statutory requirement contained in W.S. § 16-3-114. Administrative agencies have their own time limitations for bringing a case to the next level of review. Appealing an administrative case to the district court prematurely, while the administrative agency’s time period for taking the case to the next administrative level is running, could lead to expiration of a critical deadline. For example, in a Workers’ Compensation case any interested party may request a hearing on a final determination of benefits. The request for a hearing must be filed within 15 days; if a request is not timely filed, the final determination is not subject to further administrative or judicial review. (fn3) In property tax cases, the case must be brought first before the county tax assessor, then to the county board of equalization, and finally, to the State Board of Equalization before administrative remedies will have been exhausted. (fn4),(fn5). Be sure to examine the individual agency’s rules for administrative appeal process.

An appeal from a court of limited jurisdiction requires the filing of a notice of appeal with the clerk of the trial court within 30 days of the appealable order; a copy of the notice of appeal must also be filed with the clerk of the district court and served on all parties. An appeal from an administrative decision requires filing, in the district court, a petition for review within 30 days of service of the agency’s final decision, and copies must be served on the agency and all parties. The petition for review of an administrative agency decision cannot exceed five pages in the format described in W.R.A.P. 7.05 (b), and must include:

• A concise statement showing jurisdiction and venue;
The specific issues of law addressed to the district court for review;
For petitions in contested cases (fn6), a list of all persons or agencies formally identified as parties, as defined in W.S. § 16-3-101 (b)(vi); in all other cases, a person seeking judicial review of agency action must affirmatively file as a petitioner under W.S. § 16-3-114 to be considered as a party;
For petitions in contested cases, a brief statement of the facts relevant to the legal issues raised before the agency, showing the nature of the controversy in which the legal issues arose;
A copy of the agency decision attached as an appendix; and
• The name, file number and court in which any related petition for judicial review is pending. (fn7)

Briefs are not appropriate in appeals of administrative cases unless the district court, in its discretion, permits submission of briefs. (fn8) The district court will fix a schedule for briefing if it decides to permit submission of briefs.

The record in an administrative appeal consists of the original or a certified copy of the entire record of the proceedings under review; (fn9) the appealing party is not required to file a designation of the record, as it would be in an appeal of the decision of a court of limited jurisdiction. The appealing party is required to order (and arrange for payment for) a transcript of the testimony necessary for the appeal, and to file a certificate of compliance with the rule. (fn10) This requirement to order and arrange for payment for a transcript parallels the requirement in W.R.A.P. 2.05, which applies to appeals from courts of limited jurisdiction. In both types of cases, the lack of a clear and defined record can be problematic at best, and at worst, could be fatal to any eventual appeal. (fn11) In municipal and circuit courts, a court reporter may not be present, and the proceedings are normally recorded on audio tape. Few court reporters are willing to attempt transcribing from an audio tape, and accuracy in transcribing tapes is often a problem due to poor sound quality. If the case is important and you believe there may be reason for an appeal, the prudent course would be to arrange for the services of a court reporter at all hearings in the case.

In an appeal of an administrative decision, unlike an appeal from a court of limited jurisdiction, the court may take evidence or order the agency to consider additional evidence. In contested cases, the court “shall order” the additional evidence to be taken before the agency if the additional evidence is material and good cause existed for failing to present it in the proceeding before the agency. (fn12) However, to the extent any matter in a contested case was not preserved by the agency and there is no record, the court may take evidence on that matter. (fn13) Supplemental evidence may be taken by the reviewing court in cases involving fraud, or involving misconduct of some person administrating the law affecting the decision. And, in all cases other than contested cases, additional material evidence may be presented to the court.

The district court fee for filing an appeal from an administrative decision or court of limited jurisdiction is currently $60.00, and Rule 1 of the Rules of Appellate Procedure applies to both types of cases. One original and two copies of briefs, petitions, motions and other documents are to be filed in the district court. All filed documents must be 8 1/2” x 11”, including attachments whose original form was larger or smaller than 8 1/2” x 11.” (fn14) Rule 7.05, W.R.A.P., which governs the length and format of briefs, also applies to both types of cases (if the district court permits filing of briefs in an appeal of an administrative decision). Principal briefs are limited to 70 pages, and reply briefs are limited to 35 pages. Double-spacing is required, and fonts can be no smaller than the equivalent of 10 characters per inch. Examples of computer fonts that meet this requirement are Times New Roman 13, CG Times 13, or Courier 12. Footnotes must be in the same type size as the text of the brief as well as double-spaced. A 3.5” floppy disk is required if a brief or petition has been prepared in electronic format.

When in doubt (or even when not in doubt) the best practice is to consult the rules, be certain you have an appealable order, and scrupulously attend to filing deadlines.

Footnotes:
1. Any case in which original jurisdiction is in a municipal court or circuit court may be appealed to the district courts. W. S. § 5-2-119. Appeal of an agency action to the district courts is provided for in W.S. § 16-3-114.
2.W.R.A.P. 1.04 (b)
3.W.S. § 27-14-601(k)(vi)
4.Wyo. Const. Art. 15, § 10; W.S. § 39-11-102.1
5.Rules of Practice and Procedure for Appeals Before the State Board of Equalization from a County Board of Equalization (available at http://taxappeals.state.wy.us)
6.If the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing, the proceeding is called a “contested case.” If such hearing is not required, the proceeding is a noncontested case. Thornley v. Wyoming Hwy. Dept., 478 P.2d 600 (Wyo. 1971)
7.W.R.A.P. 12.06
8.W.R.A.P. 12.09 (c)
9.W.R.A.P. 12.07
10.W.R.A.P. 12.04(d)
11.See In re Billings v. State Bd. of Outfitters & Guides, 2001 WY 81
12.W.R.A.P. 12.08
13.W.R.A.P. 12.07(b)
14.W.R.A.P. 1.01

This article was first published in Wyoming Lawyer, the official publication of the Wyoming State Bar Association.
Michael Commins is a paralegal with Mullikin, Larson & Swift LLC.
Steven Olmstead is a Senior Assistant Attorney General for the Attorney General of the State of Wyoming and Director of the Wyoming Attorney General's Medicaid Fraud Unit.