Making factual findings subject to never-ending review: Wisconsin Bell

In Wisconsin Bell, an employee with bi-polar disorder asked to be off work temporarily because his anxiety was triggering a mental breakdown. The employer did not believe the request was legitimate, however, and dismissed the employee for shirking.

The employee presented copious evidence about his disability, while the employer simply asserted it did not believe him. Unfortunately for the employer, an administrative law judge and the Commission found that the employee’s disability and mental breakdown to be credible, and so the employer’s dismissal for that disability constituted a discriminatory discharge.

The original petition for review from Wisconsin Bell concerned a legal question over the status and proper use of a legal theory for determining an intent to discriminate called the “inference” method. But, baked into any examination of the inference method is most likely an examination of the the evidence in the record, and in this case that examination will almost certainly include the credibility of witness testimony.

Here, the employer is claiming that it discharged an employee because it did not believe the disability claims of its employee and instead concluded he was shirking. The administrative law judge and the Commission, on the other hand, found that employee to be quite credible in contrast to the rather in-credible employer claims.

So, this legal dispute over the “inference” method when coupled to the question of agency deference that the Wisconsin Supreme Court added to this case essentially opens up findings of fact to constant review up the appellate ladder. In other words, the deference at issue in this case is to the factual findings and credibility determinations of the agency.

This factual review by courts — even a supreme court — is explicitly included in the attack on agency deference. Philip Hamburger’s, Is Administrative Law Unlawful? specifically concludes that a proper and constitutional separation of powers requires courts to do their own fact-finding regardless of any fact-finding by a state agency. He writes:

Whereas judges once heard independent actions against executive officers, they now are the final participants in an appeals process that oversees administrative agencies. The result is that administrators feel liberated from the constraints of law, and judges feel bound to make the administrative system work.

Hamburger, Is Administrative Law Unlawful? at 304. For Hamburger, the deferral to administrative agencies contrasts mightily with rights to constitutional due process and an independent judiciary obligated to follow the law and not the whims of the executive branch. Whatever technical matters are at stake in an administrative proceeding, Hamburger reasons, those technical matters also involve political questions that are appropriately decided legislatively and judicially rather than through an executive. Id. at 314. As a result, trial court judges who defer to administrative fact-finding, according to Hamburger, abandon their constitutional obligations and prejudice the judicial review in favor of the administrative agency. Id. at 317-18.

So, Wisconsin Bell presents the Wisconsin Supreme Court with the opportunity to make judicial fact-finding part-and-parcel of the judicial review process at every step of the appellate process.

All the posts in this series

• Beres/absenteeism at the Wisconsin Supreme Court, Part 1
• Beres, agency deference, and Lochnerism, Part 2
• TetraTech: Agency discretion and “process”
• Beres: Agency discretion to undo a statutory scheme
• Making factual findings subject to never-ending review: Wisconsin Bell
• Agency deference and a quick note on the briefs
• Oral arguments over agency deference

UPDATE (12 Dec. 2017): Added links for all the posts in this series.