2016 WI 34
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1213
COMPLETE TITLE: Cheryl M. Sorenson,
Plaintiff-Respondent-Petitioner,
v.
Richard A. Batchelder,
Defendant-Appellant,
United Healthcare Insurance Company,
Defendant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cites)
OPINION FILED: May 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 20, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Michael Guolee
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J.
NOT PARTICIPATING:
ATTORNEYS:
For the For the plaintiff-respondent-petitioner there were
briefs by Timothy W. Schelwat, Jason F. Abraham and Hupy and
Abraham, S.C., Milwaukee. Oral argument by Jason F. Abraham.
For the defendant-appellant, the cause was argued by
Jennifer L. Vandermeuse, assistant attorney general, with whom
on the brief was Brad D. Schimel, attorney general.
2016 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1213
(L.C. No. 2013CV5012)
STATE OF WISCONSIN : IN SUPREME COURT
Cheryl M. Sorenson,
Plaintiff-Respondent-Petitioner,
FILED
v.
MAY 12, 2016
Richard A. Batchelder,
Diane M. Fremgen
Defendant-Appellant, Clerk of Supreme Court
United Healthcare Insurance Company,
Defendant.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an
unpublished decision of the court of appeals,1 which reversed an
order of the Milwaukee County Circuit Court2 denying defendant
Richard A. Batchelder's (Batchelder) motion to dismiss for
improper service of notice of claim.
1
Sorenson v. Batchelder, No. 2014AP1213, unpublished slip
op. (Wis. Ct. App. Apr. 7, 2015).
2
The Honorable Michael D. Guolee of Milwaukee County
presided.
No. 2014AP1213
¶2 After sustaining property damage and personal injury
in a car accident occasioned by State employee Batchelder,
Cheryl M. Sorenson (Sorenson) delivered notice of claim to the
attorney general by personal service and subsequently instituted
a negligence action against Batchelder. Batchelder moved to
dismiss, arguing that Sorenson did not strictly comply with Wis.
Stat. § 893.82 (2013-14),3 which requires service of notice of
claim on the attorney general by certified mail.
¶3 The central issue before us is whether Sorenson's
personal service of notice of claim satisfies Wis. Stat.
§ 893.82 such that her claim against Batchelder may be
continued. We conclude that personal service does not comply
with the plain language of § 893.82(5) because it requires
service of notice of claim on the attorney general by certified
mail. As § 893.82(2m) mandates strict compliance with
requirements of § 893.82 in order to institute an action against
a state employee, and Sorenson's service failed to so comply, we
affirm the dismissal of Sorenson's claim against Batchelder.
Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
¶4 On October 28, 2010, Batchelder was operating a motor
vehicle in his capacity as an employee of the Wisconsin
3
All further references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2014AP1213
Department of Administration (DOA).4 Batchelder's vehicle rear-
ended the vehicle of a third party, causing that vehicle to
rear-end Sorenson's vehicle. Sorenson alleges property damage,
as well as personal injury, resulting from the accident.
¶5 On January 18, 2011, Sorenson served notice of claim
on the attorney general by personal service at the attorney
general's office in the capitol in Madison, Wisconsin. Personal
service was accepted by a state employee, who acknowledged its
receipt at the time of delivery. The notice of claim was then
forwarded to the attorney general's Main Street office in
Madison where it was processed and endorsed by another state
employee on January 19, 2011; thereafter, it was returned to
Sorenson's attorney's office.
¶6 On February 28, 2011, after investigating Sorenson's
claim, the Bureau of State Risk Management issued a check to
Sorenson in the amount of $241.45 as payment in full for the
damage sustained by her vehicle as a result of the accident.5
The Bureau of State Risk Management also issued a letter to
Sorenson, stating that "[t]his payment does not represent an
admission of any liability on the part of the state, or any of
4
The record shows that Batchelder is an employee of the
Wisconsin Department of Health Services. For purposes of the
motion to dismiss, however, we assume Sorenson's facts to be
true as alleged. State ex rel. Shroble v. Prusener, 185 Wis. 2d
102, 108, 517 N.W.2d 169 (1994).
5
Sorenson had previously submitted a property damage
estimate reflecting this amount to the State of Wisconsin's
insurer.
3
No. 2014AP1213
its employees or agents, and is not a waiver of any defenses the
state, or any of its employees or agents, may have."6
¶7 On May 28, 2013, Sorenson instituted a negligence
action against Batchelder,7 who filed a motion to dismiss due to
improper service of notice of claim. Specifically, Batchelder
argued that Sorenson did not satisfy Wis. Stat. § 893.82, which
requires service by certified mail and, because Sorenson
employed personal service, she did not strictly comply with the
statute. The circuit court denied Batchelder's motion to
dismiss, concluding that service was proper because the attorney
general received notice of claim and, therefore, received all
that was required.
¶8 The court of appeals reversed, concluding that the
plain meaning of Wis. Stat. § 893.82(5) requires service by
certified mail and that Sorenson failed to strictly comply with
the statute by personally serving notice of claim.
¶9 We granted Sorenson's petition for review.
6
In her brief, Sorenson fleetingly raises a waiver argument
with no supporting law. Waiver was not mentioned in Sorenson's
petition for review. Accordingly, we do not address it. Jankee
v. Clark Cnty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297
("Generally, a petitioner cannot raise or argue issues not set
forth in the petition for review unless this court orders
otherwise.")
7
Sorenson's suit also joined the Department of
Administration (DOA) and Secretary of the DOA as defendants;
however, the circuit court dismissed both of these additional
defendants, and Sorenson has not appealed their dismissal.
4
No. 2014AP1213
II. DISCUSSION
A. Standard of Review
¶10 Batchelder's motion to dismiss requires us to
interpret and apply Wis. Stat. § 893.82. Interpretation and
application of a statute present questions of law that we review
independently, while benefitting from the analyses of the
circuit court and court of appeals. Pool v. City of Sheboygan,
2007 WI 38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415.
B. General Principles of Statutory Interpretation
¶11 "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 612 N.W.2d 659). Plain meaning may be ascertained
not only from the words employed in the statute, but also from
the context.8 Id., ¶46. We interpret statutory language in the
context in which those words are used; "not in isolation but as
part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or
unreasonable results." Id. Statutory history aids in a plain
8
"[S]cope, context, and purpose are perfectly relevant to a
plain-meaning interpretation of an unambiguous statute as long
as the scope, context, and purpose are ascertainable from the
text and structure of the statute itself." State ex rel. Kalal
v. Circuit Court for Dane Cnty., 2004 WI 58, ¶48, 271 Wis. 2d
633, 681 N.W.2d 110.
5
No. 2014AP1213
meaning analysis. Adams v. Northland Equip. Co., 2014 WI 79,
¶30, 356 Wis. 2d 529, 850 N.W.2d 272.
¶12 "If the words chosen for the statute exhibit a 'plain,
clear statutory meaning,' without ambiguity, the statute is
applied according to the plain meaning of the statutory terms."
State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d
769 (quoting Kalal, 271 Wis. 2d 633, ¶46). However, where the
statute is "capable of being understood by reasonably well-
informed persons in two or more senses[,]" then the statute is
ambiguous. Kalal, 271 Wis. 2d 633, ¶47. Where the language is
ambiguous, we may then consult extrinsic sources, such as
legislative history. Id., ¶50. "While extrinsic sources are
usually not consulted if the statutory language bears a plain
meaning, we nevertheless may consult extrinsic sources 'to
confirm or verify a plain-meaning interpretation.'" Grunke, 311
Wis. 2d 439, ¶22 (quoting Kalal, 271 Wis. 2d 633, ¶51).
¶13 Ultimately, we bear in mind that "[s]tatutory
interpretation involves the ascertainment of meaning, not a
search for ambiguity." Kalal, 271 Wis. 2d 633, ¶47 (internal
quotation marks omitted) (quoting Bruno v. Milwaukee Cnty., 2003
WI 28, ¶25, 260 Wis. 2d 633, 660 N.W.2d 656). With these
general principles in mind, we turn to our review of Wis. Stat.
§ 893.82.
C. Wis. Stat. § 893.82
¶14 Wisconsin Stat. §893.82 applies to claims brought
against state employees. Section 893.82(2m) provides that "[n]o
claimant may bring an action against a state officer, employee
6
No. 2014AP1213
or agent unless the claimant complies strictly with the
requirements of this section."
¶15 With regard to notice, Wis. Stat. § 893.82(3)
provides, in relevant part, that:
[N]o civil action or civil proceeding may be brought
against any state officer, employee or agent for or on
account of any act growing out of or committed in the
course of the discharge of the officer's, employee's
or agent's duties . . . unless within 120 days of the
event causing the injury, damage or death giving rise
to the civil action or civil proceeding, the claimant
in the action or proceeding serves upon the attorney
general written notice of a claim stating the time,
date, location and the circumstances of the event
giving rise to the claim . . . .
¶16 With regard to service of notice of claim, Wis. Stat.
§ 893.82(5) requires that "[t]he notice under sub. (3) shall be
sworn to by the claimant and shall be served upon the attorney
general at his or her office in the capitol by certified mail.
Notice shall be considered to be given upon mailing for the
purpose of computing the time of giving notice."
¶17 Finally, Wis. Stat. § 893.82(1) provides that the
purposes of the section are to:
(a) Provide the attorney general with adequate
time to investigate claims which might result in
judgments to be paid by the state.
(b) Provide the attorney general with an
opportunity to effect a compromise without a civil
action or civil proceeding.
(c) Place a limit on the amounts recoverable in
civil actions or civil proceedings against any state
officer, employee or agent.
7
No. 2014AP1213
¶18 Having set forth the text of the statutory provisions
at issue, we now turn to the parties' arguments with respect to
Wis. Stat. § 893.82.
D. Parties' Positions
¶19 The parties do not dispute that the plain language of
Wis. Stat. § 893.82(5) requires that notice of claim be served
by certified mail. There is likewise no dispute that the plain
language of § 893.82(2m) requires strict compliance with the
statute in order to bring a subsequent action against a state
employee.
¶20 The dispute between the parties arises out of their
disagreement about what constitutes strict compliance with the
certified mail requirement. Batchelder argues that strict
compliance with Wis. Stat. § 893.82 cannot be accomplished
without serving notice of claim by certified mail as the words
of § 893.82(5) provide. According to Batchelder, Sorenson's
personal service is not service by certified mail and, as such,
she failed to strictly comply with § 893.82(5), which required
dismissal of her claim.
¶21 Sorenson argues that, although the words of the
statute direct strict compliance, literal compliance with the
words of the statute is not required. Rather, according to
Sorenson, her delivery of the notice of claim to the attorney
general by personal service fulfilled the purpose of Wis. Stat.
§ 893.82 and provided the attorney general with actual notice of
her claim more effectively than delivery by certified mail.
Sorenson also argues that her personal service should be held to
8
No. 2014AP1213
satisfy the statute because to hold otherwise would lead to an
absurd result; namely, the dismissal of her otherwise viable
claim in spite of her fulfillment of the statutory purpose. We
will address these arguments in turn.
E. Interpretation and Application of Wis. Stat. § 893.82
1. Literal compliance
¶22 As set forth above, the plain language of Wis. Stat.
§ 893.82(5) requires service of notice of claim on the attorney
general by certified mail, and § 893.82(2m) requires strict
compliance with provisions of § 893.82. Contrary to Sorenson's
argument that strict compliance does not require literally
complying with the words of the statute, it has been repeatedly
stated that requirements of § 893.82 are not general guidelines
but, rather, a claimant must strictly comply with the words in
the statute in order to proceed with his or her claim. Kellner
v. Christian, 197 Wis. 2d 183, 195, 539 N.W.2d 685 (1995)
(concluding that a claimant "must adhere to each and every
requirement in the statute"); Modica v. Verhulst, 195 Wis. 2d
633, 641-42, 536 N.W.2d 466 (Ct. App. 1995) (explaining that
strict compliance with § 893.82 is required; substantial
compliance is insufficient).
¶23 Moreover, Wisconsin courts have equated strict
compliance with literal adherence to the words used in the
statute. Force v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶14,
356 Wis. 2d 582, 850 N.W.2d 866 (comparing a "strict literal
interpretation" with statutory interpretation that furthers
legislative purposes); Kalal, 271 Wis. 2d 633, ¶56 (equating
9
No. 2014AP1213
"strict" with "literal" statutory interpretation); Bar Code Res.
v. Ameritech Info. Sys., Inc., 229 Wis. 2d 287, 291, 294, 599
N.W.2d 872 (Ct. App. 1999) (explaining that Wisconsin service
statutes are "literally read and strictly applied"); see also
Barbara J. Van Arsdale, Certificate of Acknowledgement, 1 Am.
Jur. 2d Acknowledgments § 29 (database updated Feb. 2016)
(equating strict compliance with literal compliance and
distinguishing substantial compliance).
¶24 Therefore, we enforce literal compliance with the
plain language of Wis. Stat. § 893.82(5) unless such enforcement
would lead to an absurd result. Hines v. Resnick, 2011 WI App
163, ¶16, 338 Wis. 2d 190, 807 N.W.2d 687. It necessarily
follows that, in order to strictly comply as § 893.82(2m)
requires, a claimant must literally follow the words of the
statute. This requires a claimant to serve notice of claim on
the attorney general by certified mail pursuant to the plain
language of § 893.82(5). Kelly v. Reyes, 168 Wis. 2d 743, 747,
484 N.W.2d 388 (Ct. App. 1992) (holding that service by regular
mail did not strictly comply with the certified mail requirement
even though the attorney general received actual notice).
Sorenson's choice of personal service is simply not service by
10
No. 2014AP1213
certified mail.9 Consequently, we conclude that Sorenson did not
strictly comply with § 893.82(5).
2. Fulfilling statutory purposes (substantial compliance)
¶25 Sorenson next contends that, without serving notice of
claim by certified mail, she strictly complied with the statute
because she fulfilled its stated purposes, and the attorney
general received actual notice of her claim. Sorenson contends
that she met the purposes set forth in Wis. Stat. § 893.82(1),
which are to "[p]rovide the attorney general with adequate time
to investigate claims . . .[,] [p]rovide the attorney general
with an opportunity to effect a compromise without a civil
action . . .[,] [and] [p]lace a limit on the amounts recoverable
in civil actions."
¶26 Sorenson emphasizes that, through personal service,
notice of claim was processed by the attorney general's office
in the same manner in which it would have been processed if
notice of claim had been delivered by certified mail. Namely,
although notice of claim was personally served at the attorney
general's capitol office, it ultimately was received at the
attorney general's Main Street office, acknowledged, and
returned to counsel, indicating that notice of claim had been
9
Black's Law Dictionary defines certified mail as "[m]ail
for which the sender requests proof of delivery in the form of a
receipt signed by the addressee. The receipt . . . must be
signed before the mail will be delivered." Black's Law
Dictionary, 1038 (9th ed. 2009). Personal service, on the other
hand, is defined as "[a]ctual delivery of the notice or process
to the person to whom it is directed." Id. at 1259.
11
No. 2014AP1213
received by the attorney general. Therefore, according to
Sorenson, the statute's purposes were fulfilled by personal
service of notice of claim because the attorney general received
the required notice and took action with respect to her claim.
We are not persuaded.
¶27 Sorenson appears to argue that she strictly complied
with Wis. Stat. § 893.82 by substantially complying with it. As
set forth above, strict compliance requires exactly following
the words of the statute. Kellner, 197 Wis. 2d at 194-95.
Substantial compliance, on the other hand, provides that
statutory directives may be met where the purpose underlying the
statute has been fulfilled notwithstanding the words chosen by
the legislature. Andrews Constr., Inc. v. Town of Levis, 2006
WI App 180, ¶11, 296 Wis. 2d 89, 722 N.W.2d 389 (explaining that
"substantial compliance contemplates actual compliance in
respect to the substance essential to every reasonable objective
of the statute." (internal quotation marks omitted) (quoting
Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 200, 405
N.W.2d 732 (Ct. App. 1987))). Stated otherwise, in the context
of a notice statute such as Wis. Stat. § 893.82, where the
underlying purpose is to effect notice, a claimant may be able
to substantially comply by effecting actual notice to the
respondent. See Kellner, 197 Wis. 2d at 195-96 (examining the
distinction between substantial compliance and strict compliance
by comparing § 893.80 and § 893.82 (citing Figgs v. City of
Milwaukee, 121 Wis. 2d 44, 53, 357 N.W.2d 548 (1984))).
12
No. 2014AP1213
¶28 While we do not dispute that the attorney general
received actual notice through Sorenson's personal service, it
is well established that Wis. Stat. § 893.82 is not simply an
actual notice statute. Id. It is not enough to substantially
comply with the statute by effecting actual notice, thereby
fulfilling the underlying purposes of § 893.82(1). Simply
stated, Sorenson cannot strictly comply with the plain language
of § 893.82(5) by substantially fulfilling the purposes of
§ 893.82 because the legislature has chosen not to permit
substantial compliance by requiring strict compliance with the
terms of the statute. Wis. Stat. § 893.82(2m).
¶29 To aid in our plain meaning analysis, we briefly
examine statutory history. A prior version of Wis. Stat.
§ 893.82 provided "[t]he provisions of this section shall be
liberally construed to effectuate [its] intent." § 893.82(1)(b)
(1989-90).10 Because the intent of the notice of claim statute
is to give notice to the attorney general, and the legislature
mandated liberal construction, substantial compliance with
§ 893.82 previously was sufficient to institute a claim against
a state employee. Daily v. Univ. of Wis., Whitewater, 145
Wis. 2d 756, 761, 429 Wis. 2d 83 (Ct. App. 1988), superseded by
statute as stated in Modica, 195 Wis. 2d at 641.
¶30 However, Wis. Stat. § 893.82 subsequently was amended
to its current form that directs strict compliance with the
10
1983 Wis. Act. 27, § 1782.
13
No. 2014AP1213
terms of the statute.11 Wis. Stat. § 893.82(2m). In Modica, the
court of appeals concluded that with this amendment, the
legislature intended to "negat[e] [the] ruling in Daily that
substantial compliance with § 893.82(3) was sufficient."
Modica, 195 Wis. 2d at 641-42. Accordingly, strict compliance
through certified mail is required, as § 893.82(2m) plainly
states. See id. at 642.
¶31 Moreover, we note that strict adherence to the
certified mail requirement promotes a "simple, orderly, and
uniform way of conducting legal business." Kellner, 197 Wis. 2d
at 195 (citing Kelly, 168 Wis. 2d at 747). Furthermore, if we
were to allow substantial compliance rather than enforcing
strict compliance as mandated by Wis. Stat. § 893.82(2m), the
certainty created by the requirement of certified mail would be
undercut by costly case-by-case determinations of whether notice
of claim was timely sent and received and whether the lack of
procedural compliance affected the purposes of the notice
statute. Kelly, 168 Wis. 2d at 747.
¶32 Although the attorney general received actual notice
here, such a determination may not be so easily made in the next
case. Condoning a deviation from the certified mail requirement
could therefore encourage "[a] new level of litigation [to] be
added to suits against state employees." Id. In light of this
reality, Wis. Stat. § 893.82(5) must be strictly enforced even
11
1991 Wis. Act 39, § 3579.
14
No. 2014AP1213
though enforcement produces harsh consequences that are of
concern to us. J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114
Wis. 2d 69, 83, 336 N.W.2d 679 (Ct. App. 1983).
3. Stricter compliance
¶33 Sorenson also argues that she satisfied the strict
compliance requirement of Wis. Stat. § 893.82(2m) because
personal service constitutes "stricter compliance," or more
effective service, than certified mail. Sorenson relies on
Patterson v. Bd. of Regents of the Univ. of Wis. Sys., 103
Wis. 2d 358, 360-61, 309 N.W.2d 3 (Ct. App. 1981), for the
proposition that "stricter compliance than the statute demands
is not necessarily a failure to strictly comply."
¶34 In Patterson, the court of appeals examined an
entirely different statutory scheme, Wis. Stat. § 227.16(1)(a)
(1979-80), which at that time required that service be
accomplished either by personal service or certified mail.12 Id.
at 359. Rather than complying with the statute, the claimant
served by registered mail. Id. Although the court of appeals
noted that strict compliance with ch. 227 procedures is
required, it held that registered mail constituted a "form of
certified mail" as the only difference between the two is that
registered mail requires a receipt of delivery, whereas
certified mail gives the option of a delivery receipt to the
sender. Id. at 360-61. Because service by registered mail and
12
Wisconsin Stat. § 227.16(1)(a) (1979-80) was renumbered
to Wis. Stat. § 227.53(1)(a). 1985 Wis. Act 182.
15
No. 2014AP1213
certified mail are identical as far as the recipient is
concerned, the court of appeals held that registered mail may be
substituted for certified mail under § 227.16(1)(a) (1979-80).
Id. at 361.
¶35 A federal court extended the Patterson decision to
hold that personal service constitutes "stricter compliance"
with the requirements of Wis. Stat. § 893.82 than does service
by certified mail. Weis v. Bd. of Regents of the Univ. of Wis.
Sys., 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011). Relying on
Patterson, the federal court stated that the "use of personal
service fulfills the purpose behind the certified mail
requirement in the notice of claim statute, and the [defendants]
have failed to explain how the service effected in this case
differs, other than in name, from the form of service specified
in the statute." Id. We are not persuaded by the federal court
decision; its reliance on Patterson is misplaced.
¶36 In addition to the stated purposes under Wis. Stat.
§ 893.82(1), we note that there is a "more specific purpose of
the certified mailing requirement in Wis. Stat. § 893.82(5)[,
which] is to 'allow[] the attorney general's office to easily
identify mail whose contents are legal in nature and require
immediate attention.'" Hines, 338 Wis. 2d 190, ¶26 (second
alteration in original) (quoting Kelly, 168 Wis. 2d at 748).
¶37 Of course, Sorenson's chosen method of service did not
permit use of the procedure for receiving notices of claim
developed by the attorney general because the notice of claim
did not arrive by mail at all. See id., ¶9 (explaining attorney
16
No. 2014AP1213
general's procedure for receiving notices of claim by certified
mail at Post Office Box, which are then forwarded to the Main
Street office). Rather, Sorenson's notice of claim arrived at
the capitol office by personal service and had to be forwarded
to the Main Street office. Therefore, unlike the situation in
Patterson, personal service on the attorney general is not
identical to service by certified mail to the attorney general
and did not fulfill the foregoing objective of the statute.
Moreover, unlike registered mail, personal service is not simply
a "stricter form of certified mail" because it is an entirely
different mode of service. Patterson, 103 Wis. 2d at 360.
¶38 Furthermore, holding that personal service constitutes
"stricter compliance" than service by certified mail would
require us to override the statute's plain language when the
legislature has so clearly chosen the mode of service necessary
to satisfy Wis. Stat. § 893.82(5). We decline to do so. As the
court of appeals properly noted, there are numerous statutes
under which the legislature has chosen to include both certified
mail and personal service as acceptable modes of service.
Sorenson v. Batchelder, No. 2014AP1213 at 4, unpublished slip
op. (Wis. Ct. App. Apr. 7, 2015). See, e.g., Wis. Stat.
§ 32.05(4); Wis. Stat. § 48.978(2)(c)2.; Wis. Stat.
§ 66.0217(4)(b); Wis. Stat. § 109.09(2)(b)2.; Wis. Stat.
§ 196.135(3); Wis. Stat. § 707.38(4)(b); Wis. Stat.
§ 766.588(4)(b); and Wis. Stat. § 895.07(1)(j).
¶39 Furthermore, where the legislature decides personal
service is sufficient, the legislature is clearly capable of
17
No. 2014AP1213
enacting a statute to reflect that choice. State v. Hemp, 2014
WI 129, ¶31, 359 Wis. 2d 320, 856 N.W.2d 811 (explaining that we
do not read language into the statute that the legislature
omitted). Consequently, we decline to override the plain
meaning of the statute and the choice of the legislature by
declaring that personal service is more effective than service
by certified mail. Braverman v. Columbia Hosp., Inc., 2001 WI
App 106, ¶24, 244 Wis. 2d 98, 629 N.W.2d 66 ("[O]ur role is not
to justify the legislative action or to substitute our judgment
for that of the legislature."). Accordingly, we conclude that
Sorenson's personal service does not constitute service pursuant
to the plain meaning of Wis. Stat. § 893.82(5).
4. Absurd result
¶40 Finally, Sorenson argues that dismissing her otherwise
viable claim would constitute an absurd result since she
fulfilled the purposes of Wis. Stat. § 893.82 by effecting
notice on the attorney general. As set forth above, the plain
language of § 893.82(2m) requires claimants to strictly comply
with the certified mail requirement of § 893.82(5), and Sorenson
failed to so comply. We must require strict compliance. Hines,
338 Wis. 2d 190, ¶16 (enforcing strict compliance unless strict
compliance is impossible). Strict compliance was not impossible
for Sorenson to accomplish.
¶41 However, we recognize that "[o]ne of the few
exceptions to this sound principle is that [we] will seek to
avoid a truly absurd or unreasonable result." State v.
Hamilton, 2003 WI 50, ¶39, 261 Wis. 2d 458, 661 N.W.2d 832. We
18
No. 2014AP1213
previously have recognized that an absurd result may arise where
"an interpretation would render the relevant statute
contextually inconsistent or would be contrary to the clearly
stated purpose of the statute." Grunke, 311 Wis. 2d 439, ¶31
(footnotes omitted).
¶42 Requiring notice of claim to be served by certified
mail as plainly stated in Wis. Stat. § 893.82(5) does not bring
about an absurd result. First, Sorenson points to no internal
inconsistencies created by the plain meaning of the statute, and
we perceive none. Moreover, enforcing the plain language of
§ 893.82(5) is not contrary to its stated purposes. Rather,
service by certified mail is wholly consistent with the purposes
of the statute; namely, to effect service and to "[p]rovide the
attorney general with adequate time to investigate claims
. . .[,] [p]rovide the attorney general with an opportunity to
effect a compromise without a civil action . . .[,] [and]
[p]lace a limit on the amounts recoverable in civil actions."
Wis. Stat. § 893.82(1).
¶43 Simply because another mode of service seemingly would
fulfill these stated purposes does not give rise to an absurd
result. The legislature specifically chose the acceptable mode
of service, Wis. Stat. § 893.82(5), and we may not second guess
its choice. State ex rel. Associated Indem. Corp. v. Mortensen,
224 Wis. 398, 401, 272 N.W. 457 (1937) (explaining that we are
not justified in rewriting the statute to "substitut[e] the
judgment of the court for that of the legislature as to what is
sound or absurd"); see also Hallstrom v. Tillamook Cnty. 493
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No. 2014AP1213
U.S. 20, 27 (1989) (explaining that federal service statutes
require strict, literal compliance, and the Court is "not at
liberty to create an exception where Congress has declined to do
so").
¶44 Sorenson easily could have served notice of claim on
the attorney general by certified mail. See Hines, 338 Wis. 2d
190, ¶16 (holding that enforcing strict compliance where strict
compliance is impossible would lead to an absurd result).
Accordingly, we must enforce the statute as written, which
dictates the dismissal of Sorenson's claim. Hamilton, 261
Wis. 2d 458, ¶45 ("We exceed our authority when we ignore the
clear language of a statute and attempt to surgically
reconstruct the statute to accommodate alternative public
policies.").
¶45 Although the result in this case is harsh, and we are
sympathetic to Sorenson's unfortunate situation, her remedy
simply does not lie with us. See Mannino v. Davenport, 99
Wis. 2d 602, 615, 299 N.W.2d 823 (1981) (enforcing strict
compliance because we are not free to ignore the import of a
statute's plain meaning even where we do not "enthusiastically
endorse the result" that enforcement causes); see also
Hallstrom, 493 U.S. at 21 (acknowledging harsh result, but
refusing to excuse failure to strictly comply with federal
statutory service requirements on unfairness grounds because
lawsuits are conducted by trained lawyers). Rather, Sorenson's
remedy lies with the legislature. See Hamilton, 261 Wis. 2d
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No. 2014AP1213
458, ¶49 (calling on legislature to adjust statutory scheme if
so desired); Mannino, 99 Wis. 2d at 615-16 (same).
III. CONCLUSION
¶46 In light of the foregoing, we conclude that delivering
notice by personal service does not comply with the plain
language of Wis. Stat. § 893.82(5), which requires service of
notice of claim on the attorney general by certified mail. As
§ 893.82(2m) mandates strict compliance with requirements of
§ 893.82 in order to institute an action against a state
employee, and Sorenson's service failed to so comply, we affirm
the dismissal of Sorenson's claim against Batchelder.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2014AP1213.ssa
¶47 SHIRLEY S. ABRAHAMSON, J. (dissenting). Wisconsin
Stat. § 893.82 requires an individual, prior to filing suit
against a "state officer, employee or agent," to serve a "notice
of claim"1 on the attorney general in his office in the Capitol
by certified mail. See Wis. Stat. §§ 893.82(2m), (3), (5)
(2013-14).2
¶48 No one can literally (or "strictly," see Wis. Stat.
§ 893.82(2m)) comply with the statute. The attorney general no
longer receives certified mail in his office in the Capitol.3
The majority is not perturbed. See majority op., ¶37. The
majority does not require strict compliance with this aspect of
the statute. Rather the majority adjusts its reading of the
statute to fit the facts and to make practical sense.
¶49 The majority does not, however, adjust its reading of
the statute to allow notice of a claim to be delivered by a
person in a sheriff's uniform or other process server's uniform
rather than by a person in a United States postal uniform. The
majority opinion implicitly concludes that the uniform of the
1
An example of a notice of claim is available on the
Department of Justice's website at
https://www.doj.state.wi.us/sites/default/files/dls/notice-of-
injury-and-claim-form.pdf.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
Hines v. Resnick, 2011 WI App 163, ¶14, 338 Wis. 2d 190,
807 N.W.2d 687 ("[T]he undisputed facts in this case establish
that service by certified mail to the attorney general's capitol
office never occurs, and cannot occur, regardless of how a
claimant addresses a notice, or what physical location the
claimant has in mind as its destination.").
1
No. 2014AP1213.ssa
person delivering a notice of claim is key to whether the notice
was validly served. If a notice of claim is not sent by
certified mail, and thus delivered by someone in a U.S. postal
uniform, the majority opinion concludes the notice was
improperly served, and the claimant's case should be dismissed.
¶50 The record demonstrates that Sorenson's notice of
claim, although served by a process server, was processed at the
attorney general's office by the same individuals in the same
manner as notices of claim served by certified mail.
¶51 I agree with the concerns of Judge Posner, who
recently decried dismissal of a litigant's viable claim based on
counsel's harmless procedural gaffe. The concerns he expressed
are pragmatic, but rest on the principles of fairness and
justice upon which our legal system is based. These concerns
should guide the court in the present case. Judge Posner wrote:
I find myself increasingly uncomfortable with basing
dismissals with prejudice on harmless procedural
bobbles. The only argument in favor of such summary
justice that I can imagine is that by punishing
parties for their lawyers' mistake we improve the
quality of the bar; the lawyers who disserve their
clients attract fewer new clients and eventually
perhaps are forced to leave the practice——an example
of the positive effect of competition on the quality
of goods and service that a market provides. But
while this is plausible in theory, I have to say that
in more than 33 years as a federal court of appeals
judge I have not noted any improvement in the average
quality of the lawyers who appear before us. I find
it difficult to believe that punishing [the plaintiff]
and his lawyer by in effect a "fine" of $925,000 will
2
No. 2014AP1213.ssa
promote the quality of legal representation in the
courts of this circuit.4
¶52 I disagree with the majority's conclusion that
personal service in the instant case does not comply with the
statutory service requirement and that only service by certified
U.S. mail counts.
¶53 I write separately to make two points:
(1) A court scrutinizes the text of a statute in view
of the purposes of the statute. "Words are given
meaning to avoid absurd, unreasonable, or
implausible results and results that are clearly
at odds with the legislature's purpose." Force
ex rel. Welcenbach v. Am. Family Mut. Ins. Co.,
2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 866.
Personal service fulfills the express purposes of
the notice of claim requirement.
(2) Personal service is a stricter form of service
than certified mail, and "stricter compliance
than the statute demands is not necessarily a
failure to strictly comply." See Patterson v.
Bd. of Regents, 103 Wis. 2d 358, 361, 309
N.W.2d 3 (Ct. App. 1981); Weis v. Bd. of Regents,
837 F. Supp. 2d 971, 979 (E.D. Wis. 2011).
¶54 Because, in my opinion, personal service fulfills the
purposes of Wis. Stat. § 893.82 and is a stricter form of
4
See Reserve Hotels PTY Ltd. v. Mavrakis, 790 F.3d 738, 745
(7th Cir. 2015) (Posner, J., dissenting).
3
No. 2014AP1213.ssa
service than certified mail, interpreting Wis. Stat.
§ 893.82(2m) to bar an action against a state officer, employee,
or agent simply because the notice of claim was served
personally by a process server rather than by a U.S. postal
worker delivering certified mail would lead to the absurd result
of dismissing an otherwise viable claim for a "harmless
procedural bobble[]."5
¶55 As a result, I dissent and write separately.
I
¶56 I begin with the text of Wis. Stat. § 893.82, which
states (in relevant part and with emphasis added) the purposes
of the section and the requirements the legislature has set
forth:
(1) The purposes of this section are to:
(a) Provide the attorney general with adequate
time to investigate claims which might
result in judgments to be paid by the state.
(b) Provide the attorney general with an
opportunity to effect a compromise without a
civil action or civil proceeding.
. . . .
(2m) No claimant may bring an action against a state
officer, employee or agent unless the claimant
complies strictly with the requirements of this
section.
(3) Except as provided in sub. (5m), no civil action
or civil proceeding may be brought against any
state officer, employee or agent for or on
5
See Reserve Hotels, 790 F.3d at 745 (Posner, J.,
dissenting).
4
No. 2014AP1213.ssa
account of any act growing out of or committed in
the course of the discharge of the officer's,
employee's or agent's duties, . . . unless within
120 days of the event causing the injury, damage
or death giving rise to the civil action or civil
proceeding, the claimant in the action or
proceeding serves upon the attorney general
written notice of a claim stating the time, date,
location and the circumstances of the event
giving rise to the claim for the injury, damage
or death and the names of persons involved,
including the name of the state officer, employee
or agent involved. . . .
. . . .
(5) The notice under sub. (3) shall be sworn to by
the claimant and shall be served upon the
attorney general at his or her office in the
capitol by certified mail. Notice shall be
considered to be given upon mailing for the
purpose of computing the time of giving notice.
¶57 As Wis. Stat. § 893.82(1) explains, the purpose of
requiring a claimant to serve a notice of claim on the attorney
general is twofold: (1) to provide the attorney general with
notice of claims against the state and time to investigate; and
(2) to provide the attorney general time to reach a settlement
prior to litigation.
¶58 In Wis. Stat. § 893.82(5), the legislature specified a
method of service for notices of claim: certified mail.
Certified mail is "[m]ail for which the sender requests proof of
delivery in the form of a receipt signed by the addressee."
Black's Law Dictionary 1096 (10th ed. 2014).
¶59 The court of appeals has articulated a twofold purpose
for requiring service on the attorney general by certified mail:
(1) to "allow[] the attorney general's office to easily identify
mail whose contents are legal in nature and require immediate
5
No. 2014AP1213.ssa
attention"; and (2) to ensure that delivery of the notice of
claim can be verified. See Kelly v. Reyes, 168 Wis. 2d 743,
747-48, 484 N.W.2d 388 (Ct. App. 1992); Patterson v. Bd. of
Regents, 103 Wis. 2d 358, 360, 309 N.W.2d 3 (Ct. App. 1981).
¶60 Personal service (by a process server) of a notice of
claim serves both the express statutory purposes for notice of
claim contained in Wis. Stat. § 893.82(1) and the purposes of
requiring notices of claim be served on the attorney general by
certified mail identified in the case law.
¶61 A personally served notice of claim, like a notice of
claim served by certified mail, informs the attorney general of
claims against the state and gives him or her an opportunity to
reach a settlement prior to litigation. Moreover, personal
service (by a process server) of a notice of claim, even more
than service by a U.S. postal worker by certified mail, clearly
identifies the notice as legal in nature and provides an easily
verifiable means of confirming that the notice was actually
served and when it was served.
¶62 In sum, there is no reason "why signing a receipt for
an envelope delivered by a U.S. Postal employee is different
from signing an acknowledgement of receipt on a copy of a notice
of claim delivered by a deputy sheriff or other process server."
Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis.
2011).6
6
The Weis court wrote that the State defendant argued
that 'the certified mail requirement facilitates the
identification of that particular type of legal
(continued)
6
No. 2014AP1213.ssa
¶63 The dismissal of an otherwise viable claim should not
depend on whether notice of that claim was delivered by someone
in a sheriff's uniform rather than a U.S. postal uniform. To
hold otherwise, as the majority opinion does, is to elevate form
over substance and countenance an absurd result——dismissal of a
viable claim based on a harmless procedural gaffe. See Hamilton
v. Hamilton, 2003 WI 50, ¶39, 261 Wis. 2d 458, 661 N.W.2d 832
("[A] court will seek to avoid a truly absurd or unreasonable
result.") (citations omitted).
II
¶64 The absurdity of dismissing Sorenson's otherwise
viable claims based on personal service of the notice of claim
by a process server rather than service by a U.S. postal worker
by certified mail is underscored by the fact that personal
service is, in fact, a stricter form of service than certified
mail.
¶65 In dismissing Sorenson's otherwise viable claims, the
majority opinion relies on the requirement in Wis. Stat.
§ 893.82(2m) that a claimant "compl[y] strictly with the
requirements of [Wis. Stat. § 893.82]." See majority op., ¶24.
filing' . . . but offer no explanation why signing a
receipt for an envelope delivered by a U.S. Postal
employee is different from signing an acknowledgment
of receipt on a copy of a notice of claim delivered by
a deputy sheriff or other process server. Seeing no
difference between the two, I conclude that Plaintiffs
strictly complied with the notice of claim statute.
Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis.
2011).
7
No. 2014AP1213.ssa
¶66 In an analogous context——the statute required service
by registered mail and service was by certified mail——the court
of appeals noted that "[a]lthough we agree that strict
compliance . . . is required . . . we conclude that a stricter
compliance than the statute demands [here, by certified mail] is
not necessarily a failure to strictly comply. Such a reading
would lead to an absurd and unjust result, and we reject such a
construction." Patterson, 103 Wis. 2d at 360-61.
¶67 Relying on Patterson's observation that stricter
compliance is not necessarily a failure to strictly comply, the
federal district court in Weis v. Board of Regents, 837
F. Supp. 2d 971 (E.D. Wis. 2011), rejected the same argument the
State makes in the instant case.
¶68 In Weis, the plaintiffs personally served notice of
claim on the attorney general. Weis, 837 F. Supp. 2d at 979.
The defendants in Weis argued that because notice of claim was
not served by certified mail, the plaintiffs' claims should be
dismissed. Weis, 837 F. Supp. 2d at 979.
¶69 Noting that the plaintiffs' notice of claim was
received and acknowledged by the attorney general, the Weis
court concluded there was no meaningful difference between
service by certified mail and service by process server. Weis,
837 F. Supp. 2d at 979. As a result, the federal district court
held that the plaintiffs strictly complied with Wis. Stat.
§ 893.82. Weis, 837 F. Supp. 2d at 979-80.
¶70 The reasoning in Patterson and Weis is, in my opinion,
more persuasive than that of the majority opinion. Service of
8
No. 2014AP1213.ssa
process by a sheriff or process server is reliable, verifiable,
and almost universally accepted. "Certainly, the gold standard
of notice is service of process by the sheriff or other process
server . . . ." Schlereth v. Hardy, 280 S.W.3d 47, 52 n.4 (Mo.
2009) (en banc). For this reason, Wis. Stat. § 801.11(3)
requires personal service on the State to be made by delivering
a copy of the summons and complaint to the attorney general or
leaving them at the attorney general's office in the Capitol
with an assistant or clerk.
¶71 If service of a notice of claim by certified mail
strictly complies with Wis. Stat. § 893.82, then the "gold
standard" of service——personal service by a sheriff or process
server——complies even more strictly.
¶72 In sum, because personal service fulfills the purposes
of Wis. Stat. § 893.82 and is a stricter form of service than
certified mail, interpreting Wis. Stat. § 893.82(2m) to bar an
action against a state officer, employee, or agent simply
because notice of claim was served by a process server rather
than by a U.S. postal worker via certified mail would lead to an
absurd result: dismissing an otherwise viable claim for a
"harmless procedural bobble[]." Reserve Hotels, 790 F.3d at 745
(Posner, J., dissenting).
¶73 For the reasons set forth, I dissent and write
separately.
¶74 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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No. 2014AP1213.ssa
1