862 Court authority to determine that a claim or defense is frivolous ( Sec. 802.05, Stats.; former sec. 814.025, Stats.

[Ed. Note: Sec. 814.025(1), Stats., was repealed by Supreme Court Order No. 03-06, effective July 1, 2005. Sec. 802.05, Stats., was also repealed by the Supreme Court. It was re-created to conform with Rule 11 of the Federal Rules of Civil Procedure. The cases summarized below were decided before sec. 814.025(1), Stats., was repealed.]

Wis. Admin Code DWD §218.03(7) allows a Complainant to withdraw a complaint at any time, and there is no requirement that the request to withdraw be made prior to the beginning of discovery. The rule requires that the department dismiss the complaint upon request. It does not authorize the department to award any sanctions or fees against a Complainant making such a request. Chapter 805 of the Wisconsin Statutes applies to actions in court and does not confer authority upon an administrative law judge to award attorney's fees when a Complainant seeks to voluntarily withdraw a complaint at the ERD. The WFEA allows for sanctions against a Complainant in only two circumstances: (1) where there has been a failure to obey an order to provide or permit discovery, and (2) where there has been a finding that a hearing or a claim was frivolous. Oldigs v. Pine Valley Residential Servs. (LIRC, 12/15/16)

The commissions jurisdiction to entertain a request for sanctions under Wis. Stat. §227.483 is confined to reviewing the administrative law judge's decision. The commission cannot act on requests for sanctions made to it for the first time. Davis v. Oxbo Int'l Corp. (LIRC, 07/31/15)

The Labor and Industry Review Commission affirmed the decision of an Administrative Law Judge that there was no probable cause to believe that the Respondent had violated the Wisconsin Public Accommodations and Amusements Law by giving preferential treatment on the basis of race. The Complainant then filed an action against the Respondent in circuit court under sec. 106.52(4)(c), Stats., pursuant to which a Complainant may receive a new trial and a decision de novo by the circuit court on public accommodations discrimination claims. The circuit court decided on a motion for summary judgment that there had been no discrimination. The circuit court also concluded that the court action had been frivolous under sec. 814.025, Stats. It awarded the Respondent reasonable costs and attorney’s fees pursuant to that statute. The court found that the action was frivolous because both the Equal Rights Division and LIRC had found that there was no probable cause to believe that discrimination had occurred, and the Complainant had presented no new evidence in his appeal to the circuit court to provide a factual basis for the claim, but relied only upon unsubstantiated conclusory statements. The Complainant should have known that without more than conclusory statements his claim would be as unsuccessful in court as it was in the previous administrative proceeding. Harris v. Curley (Dane Co. Cir. Ct., 08/11/04).

A trial court must generally hold a separate hearing on the issue of frivolousness in a court proceeding under sec. 814.025, Stats. However, a finding of frivolousness may be made without a hearing if the facts are undisputed and only a question of law remains. A claim is not frivolous under sec. 814.025, Stats., simply because there is a failure of proof, or because it was later shown to be incorrect, or it lost on the merits. The critical question is whether the party or the party’s attorney knew or should have known that the needed facts did not exist or could not be developed to support the claim. Harris v. Curley (Dane Co. Cir. Ct., 08/11/04)

Circuit court review of an administrative case is analogous to an action originating in the circuit court. A circuit court may properly award reasonable attorney’s fees if it finds that any single claim of a petitioner was frivolously brought before the court on review under Ch. 227, Stats. The circuit court cannot award attorney’s fees incurred at the various agency levels, however. In this case, the Complainant jettisoned her arguably frivolous race discrimination claim at the agency hearing stage. The Complainant did not “continue” her race discrimination claim on appeal before the circuit court under sec. 814.025, Stats. Therefore, the circuit court could make no finding as to its frivolousness., and the Respondent presumably incurred no attorney’s fees at that level. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).