Richards v. Young

Citation441 N.W.2d 742,150 Wis.2d 549
Decision Date28 June 1989
Docket NumberNo. 87-1874,87-1874
PartiesHarlan RICHARDS, Plaintiff-Appellant, v. Warren YOUNG and Dave King, Defendants-Respondents-Petitioners.
CourtUnited States State Supreme Court of Wisconsin

Donald J. Hanaway, Atty. Gen., and Frank D. Remington, Asst. Atty. Gen., on the brief, for defendants-respondents-petitioners.

Harlan Richards, pro se.

John R. Plewa, Senate Co-Chair, and John M. Antaramian, Assembly Co-Chair, of the Joint Committee for Review of Administrative Rules, amicus curiae.

STEINMETZ, Justice.

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...

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    ...to a supervisory writ if a motion to dismiss for lack of subject matter jurisdiction was erroneously denied? See Richards v. Young, 150 Wis. 2d 549, 557, 441 N.W.2d 742 (1989) ("This court has previously held that if the statutory requirements for obtaining judicial review are not fully com......
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