Wisconsin's Environmental Decade, Inc. v. Public Service Commission

• Decision Date: 30 June 1978
• Docket Number: No. 76-768,76-768
• Citation: 267 N.W.2d 609,84 Wis.2d 504
• Parties: WISCONSIN'S ENVIRONMENTAL DECADE, INC., et al., Petitioners-Appellants, v. PUBLIC SERVICE COMMISSION of Wisconsin, Respondent, Madison Gas and Electric Company, Intervenor-Respondent.
• Court: Wisconsin Supreme Court

Page 609

267 N.W.2d 609

84 Wis.2d 504

WISCONSIN'S ENVIRONMENTAL DECADE, INC., et al., Petitioners-Appellants, v. PUBLIC SERVICE COMMISSION of Wisconsin, Respondent Madison Gas and Electric Company, Intervenor-Respondent.

No. 76-768.

Supreme Court of Wisconsin.

Argued March 6, 1978.

Decided June 30, 1978.

This is an appeal from a judgment dismissing a Chapter 227 review proceeding. The circuit court determined that it lacked subject matter jurisdiction because the appellant had not served all parties as required by section 227.16(1)(c), Stats.

Kathleen M. Falk, Madison, for petitioners-appellants.

Steven Levine, Asst. Chief Counsel (argued), with whom on the brief were Steven M. Schur, Chief Counsel, and Bronson C. La Follette, Atty. Gen., for respondent Public Service Com'n.

John A. Hansen, Madison (argued), Richard K. Nordeng, Susan Steingass, and Stafford, Rosenbaum, Rieser & Hansen, Madison, on the brief for respondent Madison Gas & Elec. Co., and oral argument by John A. Hansen, Madison.

HANSEN, Justice.

On November 9, 1976, the Public Service Commission of Wisconsin (hereinafter PSC) entered an order granting rate increases to Madison Gas & Electric Company (hereinafter MG&E) for electric and natural gas service and authorizing modifications in electric rate design.

The order followed a series of hearings during which testimony and exhibits were presented by witnesses on behalf of MG&E, the PSC, and intervenors, Wisconsin's Environmental Decade, Inc. (hereinafter WED), the appellant on this appeal; Friends of the Earth (FOE); the city of Madison; and People United for Responsible Energy (PURE). In addition, several persons testified in an individual capacity, generally in opposition to the rate increase. Appearances were entered by some forty-three persons, apparently by entering their names on sign-up sheets.

In addition, MG&E had previously, on June 16, 1975, been granted an interim rate increase pending a final determination of its application. More than one hundred persons had entered appearances in the proceedings for the interim increase, which were conducted under the same PSC docket number as were the subsequent proceedings which culminated in the order of November 9, 1976.

On November 9, 1976, the day the order was entered, WED and Peter Anderson (collectively referred to as WED), petitioned the circuit court for Dane county for review of the order, pursuant to sec. 227.16, Stats., on the ground that it did not comply with the Wisconsin Environmental Protection Act, sec. 1.11.

For the purposes of this opinion, we assume copies of the appellants' petition for review were served on the PSC, MG&E, FOE, the city of Madison and PURE within thirty days after the petition was filed. ¹

The PSC filed a notice of appearance in the circuit court, and MG&E filed a notice of appearance and a second petition for review of the PSC order, on different grounds. Following a hearing on the appellants' motion for a temporary injunction, ² the PSC on December 20, 1976, moved for dismissal of the petition for review on the ground that it had been served upon the PSC before the order of the PSC had itself been served upon the appellants, in alleged contravention of sec. 227.16(1)(a), Stats.

On January 14, 1977, the PSC again moved for dismissal, on the previously-stated ground and on the further ground that the appellants had not served their petition for review on all persons who had appeared in the proceedings, as allegedly required by sec. 227.16(1)(c), Stats.

The motion to dismiss was granted, judgment was entered accordingly, and WED appeals. The following issues are presented:

1. Must the notice requirements of sec. 227.16(1)(c), Stats., be complied with to invoke the subject matter jurisdiction of a reviewing court?

2. Has the PSC waived, or is it estopped from raising, any jurisdictional defect?

3. Did the trial court err in dismissing the petition?

4. Was service of the petition for review fatally premature?

5. Must a petition for review of an agency decision, under sec. 227.16, Stats., be served upon all persons entering an appearance in the agency's proceedings?

SUBJECT MATTER JURISDICTION.

Section 227.16(1), Stats., provides in relevant part:

"227.16 Parties and proceedings for review. (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 therefor personally or by registered mail upon the agency or one of its officials, and by filing such petition in the office of the clerk of the circuit court for the county where the trial shall be held pursuant to ch. 261 (ss. 801.50 to 801.62) except s. 261.01(9) (s. 801.50(9)) (unless a different place of review is expressly provided by law), all within 30 days after the service of the decision of the agency upon all parties as provided in s. 227.11 or, in cases where a rehearing is requested, within 30 days after service of the order finally disposing of the application for such rehearing, or within 30 days after the final disposition by operation of law of any such application for rehearing.

". . .ion

"(c) Copies of the petition shall be served, personally or by certified mail, or, when service is timely admitted in writing, by first class mail, not later than 30 days after the institution of the proceeding, upon all parties who appeared before the agency in the proceeding in which the order sought to be reviewed was made. For the purpose of such service the agency upon request shall certify to the petitioner the names and addresses of all such parties as disclosed by its records, which certification shall be conclusive." ³

Sec. 227.16(1)(c), Stats., requires that copies of a petition for judicial review be served, not more than thirty days after institution of the proceeding, upon all parties who appeared before the agency in the proceeding in which the order was made.

WED argues that strict compliance with this language is not essential for the circuit court to take subject matter jurisdiction of the case, and that a failure to serve a non-agency party merely deprives the trial court of personal jurisdiction over that party.

WED contends that there are only two prerequisites to subject matter jurisdiction: (1) Timely service upon the agency making the order which is contested, and (2) timely filing of the petition with the circuit court, both under sec. 227.16(1)(a), Stats.

This contention was conclusively rejected by this court in Cudahy v. Department of Revenue, 66 Wis.2d 253, 224 N.W.2d 570 (1974). That case involved a taxpayer's petition for review of a decision of the Wisconsin tax appeals commission affirming tax assessments imposed by the department of revenue. The tax appeals commission, as the agency making the decision, was timely served with a copy of the petition for review. The department of revenue, which is entirely separate and distinct from the commission, was in the position of a party appearing before the commission, and had not been served with a copy of the petition for review within thirty days after institution of the proceedings. This court held that failure to comply with the service requirements of sec. 227.16(1)(c), Stats., left the circuit court without jurisdiction.

We quoted Monahan v. Department of Taxation, 22 Wis.2d 164, 167, 125 N.W.2d 331, 332 (1963), another case in which the department of revenue, as a party appearing before the board of tax appeals, had not been served:

" 'The department had appeared in the proceeding before the board in which the board had entered its decision and order of May 3, 1962, and with respect to which the taxpayer sought circuit court review. Therefore, unless the department was served with a copy of the petition for review within the required 30 day period, the circuit court would be without jurisdiction to conduct the review proceeding.' "

Applying this principle in Cudahy, supra, 66 Wis.2d at 258, 224 N.W.2d at 572, this court held that "the department must be served as a party who appeared before the agency," and that: ". . . In the instant case there was no attempt to serve the department until well after the thirty (30) day statutory period had expired.

". . . Under Monahan, the first petition was properly dismissed because of failure of the appellants to timely serve a copy of the petition upon the department after commencement of the proceedings. . . .

"We now hold that unless there is compliance with the mandatory requirements of sec. 227.16(1), Stats., the taxpayer cannot effectively invoke the subject matter jurisdiction of the circuit court." Cudahy v. Department of Revenue, supra, at 261, 262, 224 N.W.2d at 574.

Despite the plain holding of Cudahy, WED asserts that service upon the parties under sec. 227.16(1)(c), Stats., is not a condition precedent to the invocation of the circuit court's subject matter jurisdiction because such service is to be made ". . . after the institution of the proceeding, . . ." and because proceedings for review are "instituted," under sec. 227.16(1)(a), when the petition is served upon the agency and filed with the circuit court.

This sequence of procedure does not make compliance with the statutory service requirements any less essential to the court's jurisdiction, however. Ralph M. Hoyt, one of the principal authors of ch. 227, Stats. (see Hamilton v. ILHR Department, 56 Wis.2d 673, 687, 203 N.W.2d 7 (1973)), explained the rationale of the drafters:

". . . The appeal is taken by serving on the administrative agency and filing with the clerk of the circuit court, within thirty days after service of the agency's decision, a notice stating the nature of appelant's (sic) interest and the grounds of his appeal. The appellant must be a person aggrieved by the decision and directly affected thereby. Service of the notice...