Sunnyview Village Inc. v. State Dept. of Administration

• Decision Date: 03 November 1981
• Docket Number: No. 80-433,80-433
• Citation: 104 Wis.2d 396,311 N.W.2d 632
• Parties: SUNNYVIEW VILLAGE, INC., and Donald and Myra Guisleman, Petitioners-Appellants- Petitioners, v. STATE DEPARTMENT OF ADMINISTRATION, and Kenneth E. Lindner, and State Department of Health and Social Services and Donald E. Percy, Respondents.
• Court: Wisconsin Supreme Court

Page 632

311 N.W.2d 632

104 Wis.2d 396

SUNNYVIEW VILLAGE, INC., and Donald and Myra Guisleman Petitioners-Appellants- Petitioners, v. STATE DEPARTMENT OF ADMINISTRATION, and Kenneth E. Lindner and State Department of Health and Social Services and Donald E. Percy, Respondents.

No. 80-433.

Supreme Court of Wisconsin.

Argued Sept. 8, 1981.

Decided Nov. 3, 1981.

Frederick H. Miller, Madison (argued), for petitioners; Stephen E. Gavin, Kathryn Merriman Collins and Gavin, Miller & Collins, Madison, on brief.

F. Thomas Creeron, III, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondents.

ABRAHAMSON, Justice.

This is a review of a decision of the court of appeals affirming the judgment of the circuit court for Green Lake county, David C. Willis, circuit judge. ¹ The circuit court held that the petitioners had failed to name and serve the Division of Nursing Home Forfeiture Appeals (DNHFA) or its administrator as respondent as required by ch. 227, Stats. 1979-80, and dismissed the proceedings for judicial review. We reverse the decision of the court of appeals and hold that the petitioners have complied with the applicable statutory service requirements.

The facts are set forth in full in the decision of the court of appeals and will be briefly summarized here.

The Bureau of Quality Compliance of the Department of Health and Social Services determined that Sunnyview Village, Inc., a corporation which owns and operates a nursing home, was in violation of a provision of the Wisconsin Administrative Code. Sunnyview appealed this determination to the Division of Nursing Home Forfeiture Appeals (DNHFA) of the Department of Administration. On August 23, 1979, by order signed by the administrator of the DNHFA, the DNHFA concluded that Sunnyview was in violation of the Code and assessed a forfeiture. On September 6, 1979, pursuant to sec. 227.15, Stats. 1979-80, ² Sunnyview and its two majority shareholders (sometimes referred to as the petitioners) filed a petition in the circuit court for Green Lake county seeking judicial review of the DNHFA decision. In its petition for review Sunnyview named and served the Department of Administration and its secretary Kenneth E. Lindner and the Department of Health and Social Services and its secretary Donald E. Percy as respondents. The respondents moved for dismissal of the petition on the ground that Sunnyview failed to name and serve the DNHFA as respondent as required by the applicable provisions of chapter 227.

Under chapter 227, Stats. 1979-80, a person seeking judicial review of an administrative decision must institute proceedings for review by serving a petition for review "upon the agency or one of its officials" and the petition must be entitled in the name of the person serving it as petitioner and in "the name of the agency whose decision is sought to be reviewed as respondent." Section 227.16(1)(a) and (b), Stats. 1979-80, sets forth these requirements as follows:

"(a) Proceedings for review shall be instituted by serving a petition therefor personally or by certified mail upon the agency or one of its officials ....

"(b) ... The petition shall be entitled in the name of the person serving it as petitioner and the name of the agency whose decision is sought to be reviewed as respondent ...." (Emphasis added). ³

The word "agency" which is used in paragraphs (a) and (b) of sec. 227.16(1), Stats. 1979-80, quoted above, is defined in sec. 227.01, Stats. 1979-80, as follows:

"227.01 Definitions. In this chapter:

"(1) 'Agency' means any board, commission, committee, department or officer in the state government, except the governor or any military or judicial officer of this state."

Both Sunnyview and the respondents recognize that failure to serve the agency within the time period set forth in sec. 227.16 deprives the circuit court of jurisdiction. See Ryan v. Department of Revenue, 68 Wis.2d 467, 472, 228 N.W.2d 357, 359 (1975); Cudahy v. Department of Revenue, 66 Wis.2d 253, 259, 224 N.W.2d 570 (1974); Brachtl v. Department of Revenue, 48 Wis.2d 184, 187, 179 N.W.2d 921 (1970); Monahan v. Department of Taxation, 22 Wis.2d 164, 167, 125 N.W.2d 331 (1963).

Compliance with sec. 227.16, Stats., has, in the past, proved troublesome for a number of litigants because sec. 227.16 is not easy to understand. This court has characterized an earlier version of sec. 227.16(1) as "complex and if read in a cursory fashion ... confusing." Brachtl v. Department of Revenue, 48 Wis.2d 184, 186, 179 N.W.2d 921 (1970). Despite revision, sec. 227.16 remains complex and becomes confusing not only when read in a cursory fashion but also when read in conjunction with sec. 227.01(1) which defines agency. The definition of agency in sec. 227.01(1) applies to every use of the word agency in ch. 227, and the word agency appears in many provisions. Because the definition of agency determines which administrative tribunals are included within the operation of chapter 227 the word agency may be viewed as encompassing "all administrative tribunals of a state-wide character." Hoyt, The Wisconsin Administrative Procedure Act, 1944 Wis.L.Rev. 214, 216-217; Committee Note to sec. 227.01, 26 West Wis. Stats. Ann., p. 455; 1 Cooper, State Administrative Law 98-99 (1965). Cf. 1 Davis, Administrative Law Treatise sec. 1.2 (2d ed. 1978) (federal statute). This all-encompassing definition which may be suitable for determining whether an administrative tribunal falls within chapter 227 may or may not be suitable for determining which governmental entity must be named and served as respondent in proceedings for review. Moreover, even though the definition of "agency" set forth in sec. 227.01(1), Stats. 1979-80, may have been intended to refer to all "administrative tribunals of a state-wide character" (except those specifically excepted) the language of sec. 227.01 does not expressly list "all administrative tribunals of a state-wide character." Section 227.01(1) predates the 1967 enactment of chapter 15 of the statutes entitled Structure of the Executive Branch, which established a new, uniform nomenclature for the governmental entities comprising the executive branch of state government. ⁴ Sec. 227.01(1) has not been amended to conform to the terminology of chapter 15, and thus sec. 227.01(1) does not expressly list all presently existing "administrative tribunals of a state-wide character."

In light of these complexities, it is not surprising that the parties are in disagreement as to which governmental entity must be named and served as the respondent in the proceedings for judicial review. Sunnyview maintains that the Department of Administration is the agency to be named and served as respondent under ch. 227, and the respondents maintain that "the Division of Nursing Home Forfeiture Appeals and/or its administrator" is the agency which must be named and served as the respondent. ⁵ The sole issue before us is whether Sunnyview's naming and serving the Department of Administration as respondent complies with the service requirements of secs. 227.01 and 227.16, Stats. 1979-80. We need not consider whether service on the DNHFA alone would have been sufficient. We need consider only whether service on the Department of Administration alone is sufficient to meet the statutory requirements.

The issue before this court, and previously before the court of appeals and the circuit court, involves the interpretation of sec. 227.16(1) and sec. 227.01. Statutory interpretation is generally characterized as a question of law. The effect of such a characterization is that on review this court need not defer to the determination of the circuit court or of the court of appeals; the trial court and the court of appeals are in no better position to interpret the statute than this court.

Secs. 227.01(1), 227.16(1)(a), and sec. 227.16(1)(b), when read together, require, although the statutes do not explicitly so state, that a petitioner name and serve as respondent that governmental entity which has made the decision of which review is sought, see sec. 227.16(1)(b), and which is an agency as that word is defined in sec. 227.01(1), see sec. 227.16(1)(a), (b). Cf. Brachtl v. Department of Revenue, 48 Wis.2d 184, 187, 179 N.W.2d 921 (1970) (relating to Tax Appeals Commission and Department of Revenue). Under this reading of the statutes (which the parties and the court of appeals implicitly adopted), in order to determine whether the Department of Administration is the proper respondent, we must address first the question whether the Department of Administration is the governmental entity whose decision is sought to be reviewed in the case at bar and then the question whether the Department of Administration is an agency as that word is defined in sec. 227.01(1).

When we look at which governmental entity has decision-making powers with regard to nursing home forfeitures, we find that sec. 50.04(5)(e), Stats. 1979-80, vests decision-making powers with respect to nursing home forfeitures in the Division of Nursing Home Forfeiture Appeals (DNHFA) and its administrator. Sec. 50.04(5)(e), Stats. provides as follows:

"(e) Forfeiture appeal hearing. A nursing home may contest an assessment of forfeiture, by sending a written request for hearing under s. 227.07 to the division of nursing home forfeiture appeals created under s. 15.101(9). The administrator may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.09. The decision of the administrator shall be the final administrative decision. The division shall commence the hearing within 30 days of receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing." (Emphasis added.)

The DNHFA is created in sec. 15.103, Stats. 1979-80, as a division "which is attached to the Department of Administra...