(dissenting). I do not join the majority opinion because it does not comport with the plain language or legislative purpose of the statutes.
Sections 227.40(5) and 806.04(11) provide that the Joint Committee for Review of Administrative Rules (JCRAR) must be served in specified declaratory judgment actions. JCRAR apparently was served in this case. The statutes are silent regarding the time of service. Both statutes explicitly provide that JCRAR does not become a party to the action until after the approval of the Joint Committee on Legislative Organization (JCLO).1 Thus the statutes do not require JCRAR to be *559a party or to appear.
The majority reasons that because the JCLO might decide that JCRAR should become a party defendant, JCRAR should be treated as a party defendant at the commencement of the action for purposes of the service rules. The majority then refers to sec. 893.02, Stats. 1987-88, which provides that a civil action in which personal judgment is sought must be commenced against a defendant by service within 60 days after filing the complaint.2 The majority concludes that because JCRAR was not served within the 60-day period, the circuit court cannot proceed and the case must be dismissed. I disagree with the court's interpretation of the statutes. Furthermore, I believe that the majority has *560unnecessarily set a procedural trap for lawyers and litigants.
HH
I conclude that the majority errs first in applying the 60-day rule for serving a party defendant to the JCRAR and then holding that the appropriate penalty for late service is automatic dismissal of the case.
The 60-day statute for serving a party defendant does not apply here because sec. 806.04(11) and sec. 227.40(5) clearly provide that JCRAR is not a party defendant at the commencement of the action. Sec. 801.03(1) defines defendant as a person named as defendant in a civil action. In cases under sec. 806.04(11) and sec. 227.40(5), JCRAR should not be named as a defendant because the statutes expressly provide that JCRAR does not become a party defendant until the JCLO determines that JCRAR should be a party. Accordingly, the 60-day service statute that applies to named defendants does not, by its plain language, apply to JCRAR. The majority therefore errs in labeling or treating JCRAR as a party defendant at the commencement of the action.
Even accepting, for the sake of argument, the majority's position that JCRAR is a party defendant from the commencement of the action, the statutes do not support the majority's conclusion that the plaintiffs case should be dismissed because JCRAR was not served within the 60-day period. Sec. 803.03(3), Stats. 1987-88, provides that if a person has not been joined as a party, the circuit court "shall order that the person be made a party." Section 803.03 provides that cases involving a failure to serve are to be dismissed only under limited circumstances, none of which applies here. Because *561JCRAR was served and there is no proof of prejudice caused by late service, the case should not be dismissed.3
II.
If I am correct that the 60-day service rule does not apply, the question remains: when is the last day that timely service may be made on JCRAR? The answer is found by looking at the legislative purpose for requiring service on JCRAR under sec. 806.05(11) and sec. 227.40(5). The purpose for service is, as the majority explains, to give JCRAR notice of the action in adequate time for JCLO to determine whether it wants JCRAR to participate as a party and in adequate time for JCRAR to participate as a party in a meaningful way.
To serve the legislative purpose, I would first hold, as did the court of appeals in Harris v. Reivitz, 142 Wis. 2d 82, 90-93, 417 N.W.2d 50 (Ct. App. 1987), that if JCRAR is never served in an action in which service is *562required by statute, the action must be dismissed. In this case, however, no one claims that JCRAR was not served. The only claim is that JCRAR was not served within the 60-day time period.
Because the statutes do not require that JCRAR be made a party or that JCRAR appear in this case and because the statutes do not prescribe a time in which service is to be made on JCRAR, I would further hold that service is timely unless JCRAR asserts that the service was made beyond the 60-day period and proves that service beyond the 60-day period prejudiced the joint committee's opportunity to consider whether JCRAR should become a party and prejudiced JCRAR's presentation of an argument on the merits of the issue.
The statutory interpretation I set forth is, I conclude, consistent with the statutory language and the legislative purpose described above. Moreover it comports with cases interpreting an analogous provision requiring that the attorney general be served in certain declaratory judgment cases. In Town of Walworth v. Fontana-on-Geneva Lake, 85 Wis. 2d 432, 270 N.W.2d 442 (Ct. App. 1978), the court of appeals held that because the statute does not require the attorney general to be named a party, the 60-day service requirement of sec. 801.02(1) does not apply. The court of appeals concluded that "the only requirement that need be satisfied is that the attorney general be served in time to be heard prior to any determination on the merits of the constitutional claim." Id. at 437.
For the reasons set forth, I dissent. I would affirm the decision of the court of appeals.
Section 806.04(11) provides, inter alia:
In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard. If a statute ... is alleged to be unconstitutional, the attorney general shall also be served with a copy . . . and shall be entitled to be heard. In any proceeding under this section in which the constitutionality, construction or application of any provision of ch. 227 ... is placed in issue by the parties, the *559joint committee for review of administrative rules shall be served with a copy of the petition and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.
Section 227.40(5), which governs declaratory judgment actions for judicial review of the validity of rules, provides:
The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.
Section 13.56(2) provides, inter alia:
The cochairpersons of the joint committee for review of administrative rules or their designated agents shall accept service made under ss. 227.40(5) and 806.04(11). If the committee determines that the legislature should be represented in the proceeding, it shall request the joint committee on legislative organization to designate the legislature's representative for the proceeding . . ..
The majority does not'refer to sec. 801.02, the general statute in the Rules of Civil Procedure relating to commencement of action, but refers instead to sec. 893.02, which appears in the chapter on statute of limitations. The reference to sec. 893.02 suffices because sec. 893.02 is the same as 801.02(1).
The majority states the issue at p. 550 as "whether the circuit court lacked competency to proceed" because of the failure to serve JCRAR within the 60-day period. The parties presented the issue as one involving subject matter jurisdiction. The difference, if any, between these two concepts, is, as I have written previously, unclear; the important thing is the consequences that flow from the classification of the error. See Shopper Advertiser v. Dept. Rev., 117 Wis. 2d 223, 236, 344 N.W.2d 115 (1984) (Abrahamson, J. concurring in part and dissenting in part). Failure to serve a party defendant does not affect jurisdiction of the subject matter. Section 801.04 provides that "[t]he power of the court to hear the kind of action brought is called 'jurisdiction of the subject matter'. Jurisdiction of the subject matter is conferred by the constitution and statutes of this state and by statutes of the United States; it cannot be conferred by the consent of the parties. Nothing in chs. 801 to 847 affects the subject matter jurisdiction of any court of this state."