All Star Rent A Car v. Department of Transp., 03-2668.
| Decision Date | 23 September 2004 |
| Docket Number | No. 03-2668.,03-2668. |
| Citation | 688 N.W.2d 681,2004 WI App 198,276 Wis.2d 793 |
| Parties | ALL STAR RENT A CAR, INC., Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION and Wisconsin Division of Hearings and Appeals, Respondents-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the petitioner-appellant, the cause was submitted on the briefs of Richard J. Ward, of RJW Legal Services Group, S.C., Madison.
On behalf of the respondents-respondents, the cause was submitted on the brief of F. Thomas Creeron III, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before Deininger, P.J., Dykman and Vergeront, JJ.
¶ 1.
All Star Rent A Car, Inc., appeals an order dismissing its petition for judicial review of an administrative decision and order that revoked All Star's motor vehicle dealer license and affirmed the denial of its application for license renewal. The circuit court dismissed All Star's petition because All Star had not served the Division of Hearings and Appeals (DHA), which issued the challenged administrative decision and order, within the time period required by WIS. STAT. § 227.53(1) (2001-02).2 We conclude that the statutes prescribing which administrative entity All Star was required to serve in order to comply with § 227.53(1) are ambiguous, and, therefore, that All Star's service of its petition on the Wisconsin Department of Transportation (DOT) was sufficient to permit the circuit court to consider the merits of All Star's petition. Accordingly, we remand to the circuit court for a determination on the merits of All Star's challenge to the administrative decision and order.
¶ 2. An entity that "sells, leases, exchanges, buys, offers or attempts to negotiate a sale, consumer lease or exchange of an interest in motor vehicles" must obtain a "motor vehicle dealer" license from the Wisconsin Department of Transportation. WIS. STAT. §§ 218.0101(23); 218.0114(1). If the DOT denies an application for a license, the applicant may petition the Division of Hearings and Appeals, which is a "division ... in the department of administration," WIS. STAT. § 227.43(1), for "a hearing to review the denial." WIS. STAT. § 218.0116(2). Similarly, if the DOT seeks to revoke or suspend a license it previously granted to a motor vehicle dealer, it may do so only by persuading the DHA, after a hearing upon notice to the licensee, that there are proper grounds to do so. See § 218.0116(4). Any person aggrieved by a DHA decision regarding the denial or revocation of a motor vehicle dealer license may obtain judicial review "as provided in [WIS. STAT.] ch. 227." Section 218.0116(9).
¶ 3. All Star Rent A Car, Inc., held a motor vehicle dealer license issued by the DOT that permitted All Star to sell motor vehicles to retail buyers. The DOT instituted an administrative proceeding before the DHA to revoke All Star's dealer license because of its alleged violations of statutes and regulations applicable to motor vehicle dealers. While awaiting a hearing on the revocation, All Star sought to renew its dealer license, which the DOT denied. All Star petitioned DHA for review of the nonrenewal decision, and the two matters were consolidated in a single administrative proceeding. In a written order dated May 15, 2003, the administrator of the DHA ordered All Star's motor vehicle dealer license revoked and affirmed the DOT's refusal to renew All Star's license.
¶ 4. All Star filed a petition for judicial review of the administrative decision and order in the Dane County Circuit Court on May 27, 2003. The petition named the DOT as respondent. All Star caused its petition and an accompanying summons to be served on both the DOT and the attorney general's office on May 28th. All Star neither named DHA as a party nor served it with notice of the court action. The DOT moved to dismiss All Star's petition on the grounds that the circuit court lacked both personal jurisdiction over it and subject matter jurisdiction over the petition because All Star had failed to name or serve the DHA within thirty days of DHA's decision and order as required by WIS. STAT. § 227.53(1).
¶ 5. In response, All Star filed an amended summons and petition for judicial review on July 22, 2003, naming both the DOT and the DHA as respondents, and it served the DHA with copies of both its original and amended summons and petition on July 25th. The circuit court concluded that, because All Star had failed to serve the DHA within the thirty days mandated by statute, the court lacked jurisdiction to consider All Star's petition for review. Accordingly, the court ordered All Star's petition dismissed and subsequently denied All Star's motion for reconsideration. All Star appeals.
[1]
¶ 6. The issue before us involves the interpretation of Wisconsin statutes governing the requirements for service of petitions for judicial review of administrative decisions under WIS. STAT. ch. 227. Thus, the appeal presents a question of law that we decide de novo without deference to the circuit court's conclusions. See Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 402, 311 N.W.2d 632 (1981).
¶ 7. The basic filing and service requirements seem, at first blush, quite straightforward:
WIS. STAT. § 227.53(1)(a). The "agency" which must be served is "the agency whose decision is sought to be reviewed," and that agency must be named as the "respondent" in the caption of the petition. Section 227.53(1)(b); Sunnyview, 104 Wis. 2d at 402-03 ().3
[2, 3]
¶ 8. The failure to serve the agency that made the decision for which review is sought within the statutory thirty-day period "deprives the circuit court of jurisdiction." Id. at 399.4 Because DHA was the agency that made the decision for which All Star seeks review, and because All Star did not serve DHA with its petition until well after the thirty-day period, the circuit court concluded, somewhat reluctantly, that it had no choice but to dismiss the petition.5 All Star maintains, however, that its service on the DOT was sufficient because the statutory service requirements are ambiguous when applied to the present facts, and thus, we must permit All Star's petition to be considered on its merits because it could reasonably conclude that the DOT was the proper agency to be served. We agree.
[4-6]
¶ 9. Parties who wish to have administrative decisions reviewed in circuit court are required to strictly comply with statutory requirements for service of process, and a failure to strictly comply may produce harsh consequences. See Dietrich v. Elliott, 190 Wis. 2d 816, 827, 528 N.W.2d 17 (Ct. App. 1995)
. Wisconsin case law also establishes, however, that "[w]hen an ambiguity exists regarding the specific party to be served, procedural statutes must be construed liberally" to allow for determination of the controversy on its merits. McDonough v. DWD, 227 Wis. 2d 271, ¶ 22, 595 N.W.2d 686 (1999). Put another way, when statutes governing procedure are ambiguous because they lack "specific direction clearly indicating who is to be served," service "is sufficient for a court to acquire jurisdiction, if such service was reasonable under the circumstances." State ex rel. Grzelak v. Bertrand, 2003 WI 102, 23, 25, 263 Wis. 2d 678, 665 N.W.2d 244. We conclude that to be the case here.
[7, 8]
¶ 10. A statute is ambiguous State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 47, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted).
¶ 11. Here, an ambiguity first arises from the definition of "agency" in WIS. STAT. § 227.01(1), which defines "agency" for purposes of WIS. STAT. ch. 227 as "the Wisconsin land council or board, commission, committee, department or officer in the state government, except the governor, a district attorney or a military or judicial officer." The DHA, however, is not a state "board, commission, committee, department or officer." Rather, it is a "division ... which is attached to the department of administration under s. 15.03." WIS. STAT. § 15.103(1). A "division" does not appear in the § 227.01(1) definition of "agency." Thus, a reasonable person reading WIS. STAT. § 227.53(1), in conjunction with § 227.01(1) and § 15.103(1), could reasonably conclude that the DHA is not an agency, and thus cannot be the entity which must be served in order to satisfy § 227.53(1). And, because it was the DOT that decided to seek revocation of All Star's motor vehicle dealer license and to deny its renewal, All Star could reasonably conclude that the DOT, a "department" and thus an "agency," was the proper entity to name as respondent and serve under § 227.53(1).
¶ 12. Adding to the ambiguity of WIS. STAT. § 227.53(1) are WIS....
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All Star Rent a Car v. Wi Dept. of Transp.
...of appeals concluded that Wis. Stat. § 227.53 is ambiguous in prescribing "which administrative entity All Star was required to serve . . . ." All Star Rent A Car v. Wis. Dep't of Transp., 2004 WI App 198, ¶ 1, 276 Wis.2d 793, 688 N.W.2d ¶ 10 The court of appeals found two sources of ambigu......