Watson v. Labor and Industry Review Com'n

• Decision Date: 22 August 1991
• Docket Number: No. 90-0590,90-0590
• Citation: 476 N.W.2d 25,164 Wis.2d 432
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. William WATSON, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.
• Court: Wisconsin Court of Appeals

Page 25

476 N.W.2d 25

164 Wis.2d 432

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

William WATSON, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.

No. 90-0590.

Court of Appeals of Wisconsin.

Aug. 22, 1991.

Appeal from an order of the circuit court for Dane county: Jack F. Aulik, Judge.

Circuit Court, Dane County.

AFFIRMED.

Before WILLIAM EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

PER CURIAM.

William Watson appeals from an order dismissing his petition for review of a decision by the Labor and Industry Review Commission (LIRC). The issue is whether the petition seeking ch. 227, Stats., review was timely filed and served. We conclude that the trial court lacked competency because of Watson's failure to file and serve the petition by the close of business on the thirtieth day after LIRC's decision. We therefore affirm.

On September 6, 1989, LIRC mailed copies of its final decision dismissing Watson's discrimination complaint, under the Wisconsin Fair Employment Act, secs. 111.31 through 111.395, Stats., to all counsel of record. After the close of business on October 6, 1989, Watson arrived at the Dane County Clerk of Circuit Court's office to file his petition for review. ¹ Because the clerk's office was closed, his counsel telephoned the clerk of circuit court who time-stamped the petition 6:43 p.m. October 6, 1989, after the close of business. On October 9, 1989, a copy of the petition was found in LIRC's offices which was date-stamped October 6, 1989. However, LIRC was not served before the close of business on October 6, 1989.

Section 227.53(1)(a)2., Stats., provides that petitions for review "shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48." The thirty-day period commences from the date the decision is mailed to all parties, not the various dates of receipt. In re Proposed Incorporation of Pewaukee, 72 Wis.2d 593, 596, 241 N.W.2d 603, 605 (1976); see sec. 227.48, Stats. It is undisputed that October 6, 1989, was the thirtieth day after mailing the decision.

Watson argues that because the decision was mailed to the parties, he is entitled to three additional days under sec. 801.15(5), Stats. This argument was rejected in Johnsonville Sausage, Inc. v. Dep't of Revenue, 113 Wis.2d 7, 9 n. 3, 334 N.W.2d 269, 271 n. 3 (Ct.App.1983), where the court held that "[s]ec. 801.15(5), Stats., allowing an extra three days where service is by mail, does not apply to appeals from administrative proceedings to the circuit court." ² Thus, Watson is bound by the thirty-day rule. He is not entitled to three additional days.

We "follow a 'bright-line' rule holding that ... if any documents or petitions are delivered or received in the clerk's office after 5 p.m., they will be treated as having been filed as of the following day." St. John's Home v. Continental Casualty Co., 150 Wis.2d 37, 44, 441 N.W.2d 219, 222 (1989). Since the Dane County Circuit Court Clerk's office closes at 4:30 p.m., rather than 5:00 p.m., we construe the St. John's holding to apply to the close of business, rather than a given time of day. Id. Accordingly, Watson's petition, filed after the close of business, will be treated as having been filed the following day. On reconsideration, Watson's counsel alleged that the clerk's office opens and closes several minutes early. The trial court did not enter findings of fact on this issue. We need not address it.

Section 227.53(1)(a)1., Stats., establishes that, to effectuate service, the petition must be personally served upon the agency or one of its officials, or delivered by certified mail. Watson's leaving the petition in a conspicuous place in LIRC's offices after hours does not constitute personal service on the agency or its officials. It is undisputed that the petition was not served by certified mail. We conclude that timely service was not accomplished. Section 227.53(1)(a)1.; Cudahy v. Dep't of Revenue, 66 Wis.2d 253, 261-62, 224 N.W.2d 570, 574 (1974).

We conclude that Watson did not comply with the statutory deadline requiring filing and service of a petition for review within thirty days of LIRC's decision. Each failure deprived...