Brandt v. Labor and Industry Review Com'n
| Decision Date | 29 October 1990 |
| Docket Number | No. 90-0221,90-0221 |
| Citation | 160 Wis.2d 353,466 N.W.2d 673 |
| Parties | Robert L. BRANDT, Plaintiff-Appellant, d v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent. . Oral Argument |
| Court | Wisconsin Court of Appeals |
Patrick B. Howell and Curtis A. Paulsen of Frisch Dudek, LTD., Milwaukee, with oral argument by Curtis A. Paulsen, for plaintiff-appellant.
Earl G. Buehler, LIRC, for defendant-respondent.
Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.
Robert Brandt appeals from an order dismissing his complaint seeking judicial review of a Labor and Industry Review Commission (LIRC) decision which upheld a hearing examiner's determination that Brandt must repay $22,716 to the Unemployment [Compensation] Reserve Fund. The circuit court concluded that it lacked subject matter jurisdiction to address Brandt's judicial review action because Brandt did not join his employer as an adverse party to the circuit court proceedings. The court therefore granted LIRC's motion to dismiss Brandt's action.
On appeal, Brandt raises two issues: (1) whether the circuit court properly accepted LIRC's brief in support of its motion to dismiss despite its citation to unpublished circuit court opinions; and (2) whether the circuit court properly ruled that Brandt's failure to name his employer as an adverse party deprived the court of subject matter jurisdiction.
We conclude that LIRC's citation of unpublished circuit court opinions was not improper. We also conclude that Brandt's failure to name his employer as an adverse party was fatal to his judicial review action, although we hold that the grounds for dismissal are more properly characterized as competency to proceed--not subject matter jurisdiction. Thus, we affirm the circuit court's dismissal of Brandt's action.
This action has its genesis in seven initial determinations issued by the Department of Industry, Labor and Human Relations (DILHR) in May of 1989. Pursuant to sec. 108.04(1)(g), Stats., DILHR found that Brandt had received overpayments of unemployment compensation benefits for various periods occurring over the course of seven years, beginning in 1982. Section 108.04 governs eligibility for unemployment benefits and sets forth the base wages used to calculate payments for various types of employees. Under sec. 108.04(1)(g)3, if a person claims unemployment benefits based on his or her employment by a corporation, and the person owns or controls a twenty-five percent or more ownership interest in the corporation during the period for which benefits are claimed, the person will receive a reduced level of benefits.
DILHR found that during the years at issue, Brandt and his brother Richard were co-owners and employees of an asphalt paving construction business, Brandt Contractors, Inc., and that Brandt's ownership share was greater than twenty-five percent.
Brandt appealed DILHR's determination that he repay the excess benefits received. At the hearing before the examiner, Brandt appeared in person with his attorney; no representative of Brandt Contractors, Inc. was present. The case caption identified the matter as Brandt--in his capacity as an individual benefit recipient--versus Brandt Contractors, Inc. At the hearing, Brandt maintained that he owned a fifteen percent interest in Brandt Contractors and hence had received only those benefits to which he was entitled and no more. The examiner disagreed and issued a decision in May of 1989, upholding the department's initial determinations.
Brandt petitioned LIRC for review of the examiner's decision. LIRC affirmed.
On August 29, 1989, Brandt filed a summons and complaint in the circuit court, seeking judicial review of the LIRC ruling. Brandt named only LIRC as the adverse party in the caption of the summons and complaint. In addition, Brandt served only LIRC with the summons and complaint. 1
Based upon Brandt's failure to name his employer as an adverse party, LIRC moved the circuit court to dismiss Brandt's judicial review action for lack of jurisdiction. LIRC's brief in support of its motion contained citations to unpublished circuit court opinions. Brandt countered with a motion to strike LIRC's brief, arguing that the citations violated Rule 809.23(3), Stats. The circuit court denied Brandt's motion to strike LIRC's brief and granted LIRC's motion to dismiss. Brandt appeals.
Brandt argues that LIRC improperly cited to unpublished circuit court opinions in its brief supporting its motion to dismiss Brandt's action. Brandt maintains that, despite assurances by the circuit court that it would not treat LIRC's citations as controlling authority, the court's reasoning on the jurisdiction issue nevertheless tracked the course taken in the unpublished authorities, and the result was the dismissal of Brandt's claim.
Brandt rests his argument on three grounds. First, he indicates that the language of Rule 809.23(3), Stats., prohibits citation to unpublished opinions. Second, he argues that were we to construe Rule 809.23(3) otherwise, absurd results would obtain. Third, he states that, in actual practice, citation to unpublished circuit court decisions gives some litigants an unfair advantage. We conclude that Rule 809.23(3) does not ban citations to unpublished circuit court opinions. While the wisdom of such a rule might be questioned, we do not conclude that its application is absurd. Nor are we satisfied that potential unfairness in permitting such a practice permits us, as a court of appeals, to bar what the statute permits.
Interpretation of a statute presents a question of law which we review de novo. See Delvaux v. Vanden Langenberg, 130 Wis.2d 464, 475, 387 N.W.2d 751, 756 (1986). 2 In construing a statute, we begin with the language of the statute itself, and if the language is clear on its face, we are precluded from referring to extrinsic sources to aid our interpretation. See Ford Motor Co. v. Lyons, 137 Wis.2d 397, 419, 405 N.W.2d 354, 363 (Ct.App.1987). Furthermore, the entire section of a statute and related sections are to be considered in its construction or interpretation: we do not read statutes out of context. See State v. Barnes, 127 Wis.2d 34, 37, 377 N.W.2d 624, 625 (Ct.App.1985).
Rule 809.23(3), Stats., provides:
An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
Brandt argues that the Rule governs circuit court opinions as well as unpublished court of appeals opinions. We disagree. Looking to chapter 809 generally and Rule 809.23, Stats., specifically, only one clear and unambiguous meaning emerges--Rule 809.23(3) does not address directly or by implication or inference circuit court opinions.
Rule 809.23(3), Stats., is contained in the statutory chapter entitled "Rules Of Appellate Procedure." Rule 809.23 deals with the criteria and method for publication of court of appeals decisions. Subsection (2) of the Rule authorizes a publication committee composed of judges of the court of appeals to determine whether a decision of the court of appeals should be published. Subsection (3), the provision at issue here, then provides that an unpublished opinion may not be cited for precedential value. We conclude that the statutory scenario of chapter 809 concerns appellate procedure generally and that Rule 809.23(3), read in context, concerns only court of appeals decisions. 3
Brandt argues, however, that such an interpretation is absurd because it permits citation to a circuit court decision but precludes citation to an unpublished court of appeals decision reversing such ruling. This argument has some facial appeal because it points out a vacuum in the law: while Rule 809.23(3), Stats., bars citation to unpublished court of appeals decisions, there is no equivalent rule or statute governing circuit court opinions. However, under closer scrutiny, we conclude that our construction of the Rule is not unreasonable or absurd.
First, we expect that competent counsel, intending to cite a circuit court case, would update the case to learn its status if appealed. If an appellate reversal has occurred, we additionally expect that professional counsel would recognize the potential ethical peril of reliance upon a discredited authority.
Second, we note that Rule 809.23(3), Stats., is not a total gag rule. What the Rule prohibits is the citation of an unpublished court of appeals decision as precedent or authority, with three exceptions--res judicata, collateral estoppel or law of the case. The Rule does not purport to bar the citation of unpublished court of appeals decisions for other informational purposes. Informing a court that an unpublished appellate decision reversed a cited circuit court decision does not elevate the appellate decision to precedential or authoritative status. Rather, it simply informs the court as to the ultimate outcome of the case on appeal. This, we conclude, is not barred by the Rule.
Brandt next argues that citation to unpublished circuit court opinions should not be permitted because the "average practitioner" would be economically and tactically burdened because such opinions are not published or otherwise readily available to such practitioners. The supreme court's recent opinion in In re Amendment of Section (Rule) 809.23(3), Stats., 155 Wis.2d 832, 456 N.W.2d 783 (1990), supports Brandt's argument. There, the supreme court noted the potential for inequality in knowledge of and access to unpublished opinions of the court of appeals. For that and other reasons, the supreme court denied a petition by the State Bar of Wisconsin to permit citation to unpublished court of appeals opinions for informational purposes only.
We acknowledge that the supreme...
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