Richards v. Young

441 N.W.2d 742, 150 Wis. 2d 549, 1989 Wisc. LEXIS 86

Opinions

STEINMETZ, J.

The issue in this case is whether the circuit court lacked competency to proceed because the plaintiff failed to serve the Joint Committee for Review of Administrative Rules (JCRAR) with a copy of the complaint within sixty days after filing the action as required by sec. 893.02, Stats.¹

On March 13, 1986, Harlan Richards filed his complaint seeking a declaratory judgment in Dane county circuit court before Judge P. Charles Jones, which would order the defendants to make several changes in the administrative rules relating to the hobby program at the Waupun Correctional Institution. Richards invoked the jurisdiction of the circuit court under both secs. 227.40 and 806.04, Stats. (Section 227.40 previously was sec. 227.05 1983-84.)

On March 13, 1986, Richards also served a copy of his complaint on the Wisconsin Attorney General's office and the Joint Committee on Finance. On March 18, 1986, Richards served a copy of his complaint on Warren Young and Dave King, the prison superintendent and the director of prison programs, respectively.

Approximately ten and one-half months later, on or about January 30, 1987, defendants filed a motion requesting dismissal of the action due to Richards' failure to serve the JCRAR, and in the alternative, judgment on the merits. Then, on July 29, 1987, well over one year after filing his complaint and approximately one month after the briefing on defendants' motion was completed, Richards served the JCRAR. Richards forwarded the certificate showing service on the JCRAR and attached a copy of a decision by Dane county circuit court Judge Susan Steingass in case No. 86-CV-0799, Richards v. Kolb. In that decision, Judge Steingass held that Richards was only required to give the JCRAR notice "prior to significant work being done on a case

Notwithstanding, Judge Jones on September 8, 1987, dismissed Richards' complaint in the present case. Judge Jones found that the circuit court lacked subject matter jurisdiction as a result of Richards' failure to timely serve the JCRAR. Judge Jones ruled that under sec. 227.40(5), Stats., service on the JCRAR must be accomplished within the time limits of sec. 893.02.

Richards filed a motion dated September 8,1987, to vacate the order of dismissal. He argued that late service on the JCRAR would not have affected the outcome of the action, and, therefore, the circuit court should vacate its order dismissing the action. Judge Jones issued a memorandum decision denying Richards' motion to vacate. The judge determined again that the failure to timely serve the JCRAR deprived the court of subject matter jurisdiction.

Richards appealed to the court of appeals which reversed the trial court. The court of appeals did not adopt Judge Steingass's reasoning from the prior case that service was proper if completed before "significant work" was done on the case. The court of appeals held that Richards must only serve the JCRAR before the circuit court gets to the merits of the case. Richards v. Young, 145 Wis. 2d 322, 327, 426 N.W.2d 117 (Ct. App. 1988).

The JCRAR was created by the legislature by the enactment of sec. 13.56, Stats. Section 13.56 provides in relevant part:

Joint committee for review of administrative rules. (1) CREATION. There is created a joint committee for review of administrative rules, consisting of 5 senators and 5 representatives to the assembly appointed as are the members of standing committees in their respective houses from the majority and minority political parties in each house. In making the appointments, each house shall designate a cochairperson. The committee shall meet at the call of one of its cochairpersons.

(2) PARTICIPATION IN CERTAIN PROCEEDINGS. The cochairpersons of the joint committee for review of administrative rules or their designated agents shall accept service made under ss. 227.40(5) and 806.04(11). If the committee determines that the legislature should be represented in the proceeding, it shall request the joint committee on legislative organization to designate the legislature's representative for the proceeding . . ..

Richards sought the declaratory judgment under secs. 227.40 and 806.04, Stats. Section 227.40(1) sets forth the procedure for service of summons but does not provide a time period within which the summons must be served. Similarly, sec. 806.04(11) states that the JCRAR must be served and the procedure for actually serving the JCRAR is set forth in sec. 801.11(3),² relating to civil procedure generally. Again, these provisions do not mention a specific time period within which the JCRAR must be served. See secs. 806.04(11) and 801.11(3).

However, both secs. 227.40(5) and 806.04(11), Stats., require service on the JCRAR. Section 227.40(5) provides:

The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard. (Emphasis added.)

Section 806.04(11), Stats., provides in relevant part:

In any proceeding under this section in which the constitutionality, construction or application of any provision of ch. 227, or of any statute allowing a legislative committee to suspend, or to delay or prevent the adoption of, a rule as defined in s. 227.01(13) is placed in issue by the parties, the joint committee for review of administrative rules shall be served with a copy of the petition and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard. (Emphasis added.)

Richards argues that the JCRAR is not a "defendant" within the meaning of sec. 893.02, Stats., and, therefore, service is not required on the JCRAR within sixty days as stated in sec. 893.02. The defendants argue that because both secs. 227.40(1) and 806.04(11) require that the JCRAR be served and have an opportunity to become a party, it logically follows that the JCRAR may be a defendant by the choice of the joint committee on legislative organization and therefore sec. 893.02 applies. Because these statutes clearly require service on the JCRAR in a manner which will allow the JCRAR to discuss the case with the joint committee on legislative organization, we conclude that service must be made within sixty days after filing the complaint. Section 893.02. With this statutory scheme, JCRAR may become a defendant.

Statutory interpretation is a question of law and this court need not defer to the determination of the other courts. Sunnyview Village v. Administration Dept., 104 Wis. 2d 396, 402, 311 N.W.2d 632 (1981). Both secs. 227.40(5) and 806.04(11), Stats., require that the JCRAR be served. These statutes are not permissive, but rather are mandatory. The legislature wanted the JCRAR to have the opportunity to become a party in all such actions. When Richards failed to serve the JCRAR within sixty days as required by sec. 893.02 he deprived the JCRAR of the opportunity to become a party to the action at a meaningful point in time.

The purpose of serving the JCRAR within sixty days in actions contesting the constitutionality of an administrative rule is to give the JCRAR either the opportunity to avoid the litigation by suspending the rule or defend the rule in court which it has previously approved. See Joint Committee for Review of Administrative Rules, 1985-86 biennial report, chapter 1. The legislature wanted the JCRAR to have the option of being a party to any lawsuit contesting the constitutionality of an administrative rule. See secs. 227.40(5) and 806.04(11), Stats. The legislature premised the JCRAR's ability to become a party on the approval of the joint committee on legislative organization.

If we adopt the court of appeals decision, which would allow a party to defer service upon the JCRAR until just before the trial court gets to the merits, the JCRAR would have little, if any, time to get the approval of the joint committee on legislative organization, retain counsel and draft a position to be filed with the circuit court.

The JCRAR has the statutory right to be a party to a declaratory judgment action seeking a finding of unconstitutionality. To bestow upon JCRAR the privilege of being a party means more than simply enabling the organization the opportunity to state its position, such as the authority granted the attorney general. A party has the right to control the proceedings, prosecute or defend, to adduce and cross-examine witnesses, to engage in discovery, and to otherwise affect the procedural course of the proceedings, including the right to appeal. A mere formalistic opportunity to be heard on a moment's notice does not satisfy the JCRAR's right to become a party under sec. 227.40(5), Stats.

In State ex rel. Wis. Environmental Decade v. JCRAR, 73 Wis. 2d 234, 235, 243 N.W.2d 497 (1976), this court stated:

The critical power of JCRAR is that of entertaining 'complaints' concerning administrative rules, and, if it considers such complaints 'meritorious and worthy of attention,' suspending those rules until the entire legislature has either repealed the challenged rules or failed to do so. If the legislature fails to repeal, the rule goes back into effect.

Merely giving notice to the JCRAR prior to the time in which the trial court considers the case on its merits was not what the legislature intended. It is not sufficient to give the JCRAR only a last minute opportunity to state its position for the record. Giving the JCRAR notice of the pendency of the action on the eve of the court's decision effectively denies the JCRAR the rights and privileges accorded a party and instead rele gates it to the relatively inconsequential role of simply being heard.

Section 893.02, Stats., states that: "no action shall be deemed commenced as to any defendant upon whom service of authenticated copies of the summons and complaint has not been made within 60 days after filing." Therefore, the JCRAR must be served within sixty days after filing the summons and complaint, because a proceeding under sec. 227.40 or sec. 806.04 is an action within the meaning of sec. 893.02.

In regard to the statutory requirements of service on the attorney general when laws are challenged as to their constitutionality, we have held that proper service is a condition precedent to commencement of a sec. 227.40(5), Stats., action and an action for declaratory judgment challenging the constitutionality of an administrative rule. O'Connell v. Bd. of Ed., Jt. Dist. No. 10, 82 Wis. 2d 728, 733-35, 264 N.W.2d 561 (1978). See also Town of Walworth v. Fontana-on-Geneva Lake, 85 Wis. 2d 432, 270 N.W.2d 442 (Ct. App. 1978). This court has previously held that if the statutory requirements for obtaining judicial review are not fully complied with, the subject matter jurisdiction of the circuit court cannot be invoked. Cudahy v. Department of Revenue, 66 Wis. 2d 253, 261-62, 224 N.W.2d 570 (1974); see also Wis. Environmental Decade v. Public Service Comm., 84 Wis. 2d 504, 516, 267 N.W.2d 609 (1978). Therefore, because this action was not commenced properly, the circuit court could not proceed.

The statutes provide for an orderly process in commencing the declaratory judgment action. Richards invoked the jurisdiction of the circuit court on two bases: secs. 227.40(5) and 806.04(11), Stats., and both require that JCRAR be served in a manner which allows it enough time to become a party.

The statutes are clear and unambiguous and therefore this court does not resort to judicial rules of construction. State v. Gilbert, 115 Wis. 2d 371, 377, 340 N.W.2d 511 (1983). The obvious and ordinary meaning of the statutes is that the summons and complaint must be served upon the JCRAR within sixty days after filing. The JCRAR is entitled to service within sixty days after filing of the declaratory judgment complaint as required by sec. 893.02, Stats., and if not complied with, the circuit court could not proceed.

By the Court. — The decision of the court of appeals is reversed.

Footnotes

1

Section 893.02, Stats., provides as follows:

Action, when commenced. An action is commenced, within the meaning of any provision of law which limits the time for the commencement of an action, as to each defendant, when the summons naming the defendant and the complaint are filed with the court, but no action shall be deemed commenced as to any defendant upon whom service of authenticated copies of the summons and complaint has not been made within 60 days after filing.

Harlan Richards, in his pro se brief, raises the issue that the petitioners filed their petition with this court 32 days after the court of appeals decision was filed, and, therefore, alleges this court does not have jurisdiction. The court of appeals decision was filed on May 26,1988. Section 809.62(1), Stats., states that a petition for review must be filed within 30 days of the filing of the court of appeals decision. Section 801.15(1) (b) states, in relevant part: "[I]n computing any period of time prescribed or allowed by chs. 801 to 847, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a holiday."

Because May 26 is not counted, the 30-day time period expired on Saturday, June 25. However, the statute provides that if the last day for filing falls on a Saturday, the petition must be filed on the following Monday. Therefore, the petition for review was timely filed on June 27, 1988.

2

Section 801.11(3), Stats., provides:

801.11 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:

(3) STATE. Upon the state, by delivering a copy of the summons and of the complaint to the attorney general or leaving them at the attorney general's office in the capitol with an assistant or clerk.