Shopper Advertiser, Inc. v. Wisconsin Dept. of Revenue

• Decision Date: 22 March 1983
• Docket Number: No. 81-1409,81-1409
• Citation: 332 N.W.2d 841,112 Wis.2d 354
• Parties: SHOPPER ADVERTISER, INC., d/b/a Shopper Advertiser-Walworth County, and Shopping News, Inc., d/b/a Greater Beloit Shopping News, Petitioners-Appellants and Cross-Respondents, v. WISCONSIN DEPARTMENT OF REVENUE, Respondent and Cross-Appellant. *
• Court: Wisconsin Court of Appeals

Page 841

332 N.W.2d 841

112 Wis.2d 354

SHOPPER ADVERTISER, INC., d/b/a Shopper Advertiser-Walworth County, and Shopping News, Inc., d/b/a Greater Beloit Shopping NewsPetitioners-Appellants and Cross-Respondents, v.WISCONSIN DEPARTMENT OF REVENUE, Respondent and Cross-Appellant. ^*

No. 81-1409.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 19, 1982.

Opinion Released March 22, 1983.

Opinion Filed March 22, 1983.

Thomas J. Basting and Brennan, Steil, Ryan, Basting and MacDougall, S.C., Janesville, for petitioners-appellants and cross-respondents.

Bronson C. La Follette, Atty. Gen., and John J. Glinski, Asst. Atty. Gen., for respondent and cross-appellant.

Before GARTZKE, P.J., DYKMAN, J., and W.L. JACKMAN, Reserve Judge.W.L. JACKMAN, Reserve Judge.¹

Shopper Advertiser and Shopping News, Wisconsin corporations, appeal from the judgment of the circuit court for Dane County affirming a determination of the Wisconsin Tax Appeals Commission(commission).²The Department of Revenue(department) appeals from an order of the circuit court for Rock County which denied the department's motion to dismiss for lack of subject matter jurisdiction and certified the case to the circuit court for Dane County under sec. 807.07(2), Stats.The certification was made more than thirty days after the commission's decision was served on the parties.

The dispositive issues on appeal are (1) whether the proper venue of a ch. 227, Stats., review of a decision of the commission is in the county where the petitioner-taxpayer resides as specified in sec. 227.16(1), or in Dane County as specified by sec. 77.59(6)(b), Stats.; and (2), if the latter, whether this action was properly certified to the Dane County Circuit Court pursuant to sec. 807.07(2), Stats.We conclude that tax commission reviews must be brought in Dane County, and that sec. 807.07(2) does not permit a ch. 227review petition filed in the wrong county to be certified to the proper county after the expiration of the statutory time within which the review petition must be filed.We therefore reverse the Rock County Court's order and vacate the judgment of the Dane County Court.

The facts are undisputed.On September 14, 1979, the commission served its decision on the parties denying appellants' joint application for the abatement of sales and use taxes assessed against them between 1969 and 1974.On October 12, 1979, appellants timely filed a petition for review, under sec. 227.16(1)(a), Stats., in the circuit court for Rock County, the principal place of business of Shopper Advertiser, Inc.³The department moved to dismiss the petition on the ground that the Rock County Court lacked jurisdiction over the subject matter of the case.On July 14, 1980, that court issued a memorandum decision concluding that it lacked subject matter jurisdiction.It denied the department's motion to dismiss, however, and ordered the case certified to Dane County Circuit Court.Subsequently, the Dane County Circuit Court heard the appeal and entered a judgment affirming the commission's determination on the merits.

Section 227.16, Stats.(1977), which governs judicial review of administrative agency decisions, including those of the commission, ⁴ provides in pertinent part:

(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.15 shall be entitled to judicial review thereof as provided in this chapter.

(a) Proceedings for review shall be instituted by serving a petition ... upon the agency ... and by filing the petition in the office of the clerk of the circuit court for the county where the trial is to be held within 30 days after the service of the decision of the agency upon all parties as provided in s. 227.11....The proceedings shall be in the circuit court of the county where the petitioner resides, ....[Emphasis supplied.]

Chapter 77, Stats., which deals in part with sales and use taxes, provides in sec. 77.59(6)(b) that "all appeals from decisions of the tax appeals commission ... shall be appealed to the circuit court for Dane County."[Emphasis supplied.]Chapter 77 was amended in 1969 to include the italicized language, ⁵ which has remained unchanged since that time.Meanwhile, ch. 227, Stats., has been amended with respect to the requirement for judicial review of agency determinations several times.Its original requirement in sec. 227.16(1943), that all appeals under this chapter be filed in Dane County was amended in 1975 to allow an appeal to be filed in "the county where the trial shall be held,"⁶ and in 1977 to allow a filing in "the county where the petitioner resides."⁷Appellant filed its petition for review in the circuit court for Rock County in reliance on this latter language.

The reliance was misplaced.Section 227.16, Stats., expressly provides that where "otherwise specifically provided by law,"ch. 227 provisions do not govern.Section 77.59(6)(b), Stats., is a specific statute requiring that judicial review of tax commission decisions be brought in Dane County.In Wisconsin Valley Imp. Co. v. Public Serv. Comm., 7 Wis.2d 120, 125, 95 N.W.2d 767, 770(1959), the supreme court held that previous sec. 227.16, which required that ch. 227 reviews be filed in Dane Countycourt"unless otherwise provided by law," did not supersede a specific statute requiring review of certain decisions of the Public Service Commission to be filed in the county where the affected property was located.Applying the same reasoning in this case, sec. 77.59(6) controls the proper venue of this proceeding.Because section 77.59(6)(b) is mandatory, Dane County is the only county in which this proceeding could be brought.Therefore, the Rock County Circuit Court correctly determined that it was without jurisdiction over the proceeding.

The appellants contend that the department waived its right to object to a lack of jurisdiction by filing a notice of appearance and statement of position in the Rock Countycourt before moving to dismiss.Appellants rely on sec. 807.07(1), Stats., which provides:

When an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceeding in said appellate court.If it appears upon the hearing of such motion that such appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.[Emphasis supplied.]

This subsection is not applicable to the situation at hand.It applies only to defects in personal jurisdiction, ⁸ which may be waived.Subject matter jurisdiction may not be waived, and may not be conferred by stipulation.As the supreme court stated in Jaster v. Miller, 269 Wis. 223, 234, 69 N.W.2d 265, 270(1955), overruled on other grounds, Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609(1969), construing the predecessor of this subsection in another context:

We do not question that the appeal was attempted in good faith and this court is always ready, upon proper application, to allow defects or omissions in appeal papers to be supplied.But the language "the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction of the appellate court " cannot be construed to mean that jurisdiction which the court does not otherwise have may be conferred by such waiver....

....

Neither the waiver nor consent of a respondent, nor the willingness of this court to consider a matter in the interests of justice, gives us authority to take jurisdiction where none is conferred by law.[Emphasis in original.]

Venue is not normally a matter of subject matter jurisdiction.⁹Moreover, the supreme court has held that "[n]o circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever" because such jurisdiction is vested in the courts of this state by its constitution.Mueller v. Brunn, 105 Wis.2d 171, 176, 313 N.W.2d 790, 792(1982).In making this determination, however, the supreme court said:

We recognize ... that the legislature has the authority to abolish heretofore recognized common law actions (e.g., breach of promise suits) and may set standards for exhaustion of administrative remedies or for primary jurisdiction prior to the proper invocation of the court system's subject matter jurisdiction.

Id.The question presented by this case is whether proper venue is a condition precedent for the "proper invocation of the court system's subject matter jurisdiction" under sec. 227.16(1), Stats.We conclude that it is.

Mueller held that sec. 801.51, Stats., which provides that actions in rem can be commenced only in the county in which the real estate is located, did not deprive other county circuit courts of subject matter jurisdiction over such actions because sec. 801.04(1) provides that "[n]othing in chs. 801 to 847 affects the subject matter jurisdiction of any court of this state."105 Wis.2d at 176, 313 N.W.2d at 792.That holding does not control the result in this case for several reasons.

There is no provision similar to sec. 801.04(1), Stats., which pertains to civil actions generally, in ch. 227, Stats., which governs administrative reviews.The supreme court has repeatedly held that the right of review provided by ch. 227 is strictly statutory and that the requirements of sec. 227.16 must be strictly complied with in order to invoke the court's jurisdiction.Kegonsa Jt. Sanit. Dist. v. City of Stoughton, 87 Wis.2d 131, 145, 274 N.W.2d 598, 604(1979), cited with approval inFiala v....