All Star Rent a Car, Inc. v. Wisconsin Department of Transportation

PATIENCE DRAKE ROGGENSACK, J.

¶ 62. (idissenting). The majority opinion concludes that Wis. Stat. § 227.53(l)(c) (2003-04)1 is ambiguous with regard to whether the Department of Transportation (DOT) was a proper party to serve in a license revocation review proceeding. Majority op., ¶ 27. The majority also concludes that if All Star would have had only the statutes for guidance, its failure to serve the Division of Hearings and Appeals (DHA) might have been understandable. Majority op., ¶ 31. However, the majority then concludes that the DHA's notice to All Star created circumstances in which it was unreasonable for All Star to have served only the DOT. Majority op., ¶ 52.

¶ 63. I agree that Wis. Stat. § 227.53(1)(c) is ambiguous. However, the DHA's notice did not direct All Star to serve the DHA and therefore, it did not clarify the statute's ambiguity. We have previously decided to liberally construe ambiguous procedural statutes in favor of the party seeking review of an agency decision. DOT v. Peterson, 226 Wis. 2d 623, 633, 594 N.W.2d 765 (1999). Therefore, I conclude All Star's serving only the DOT was reasonable under the circumstances. Accordingly, I would not deny judicial review and because I would affirm the court of appeals, I respectfully dissent.

*643I. DISCUSSION

A. Standard of Review

¶ 64. This case requires us to construe a procedural statute relating to judicial review of agency decisions and to determine whether All Star acted reasonably in attempting to follow the statute. Statutory construction involves a question of law that we review de novo. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). Reasonableness is a question of law based on factual findings. Lohr v. Viney, 174 Wis. 2d 468, 477-78, 497 N.W.2d 730 (Ct. App. 1993). When the facts are known, we independently review reasonableness as a question of law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 277, 392 N.W.2d 453 (Ct. App. 1986).

B. Adherence to Procedural Statutes

¶ 65. We precede our discussion of Wis. Stat. § 227.53(1)(c) and the reasonableness of All Star's actions with a review of the rules we use to resolve a dispute over whether a party has adhered to the procedures necessary to afford judicial review of an agency decision.

¶ 66. As we stated in Peterson, "[w]e have long adhered to the rule that 'strict compliance with procedural statutes is necessary to obtain jurisdiction to review administrative agency decisions.'" Peterson, 226 Wis. 2d at 633 (citing Trojan v. Board of Regents, 104 Wis. 2d 277, 283, 311 N.W.2d 586 (1981); 519 Corp. v. DOT, 92 Wis. 2d 276, 286-88, 284 N.W.2d 643 (1979); Brachtl v. DOR, 48 Wis. 2d 184, 187, 179 N.W.2d 921 (1970)). However, as we also pointed out in Peterson, a "companion rule" to this proposition is that strict corn-*644pliance depends upon the statutes clearly setting forth the procedural requirements to obtain review. Peterson, 226 Wis. 2d at 633 (citing Trojan, 104 Wis. 2d at 284; Brachtl, 48 Wis. 2d at 186-87).

¶ 67. Therefore, when a procedural statute lacks specific direction indicating whom is to be served with notice, there exists an ambiguity that warrants a liberal construction in favor of the party attempting to follow the procedural directive to obtain judicial review of an agency decision. Peterson, 226 Wis. 2d at 633. Under those circumstances, if a construction is reasonable that would afford the appealing party review and a determination on the merits, the procedural statute's ambiguity is to be resolved in favor of that construction. Kyncl v. Kenosha County, 37 Wis. 2d 547, 555-56, 155 N.W.2d 583 (1968); see also Peterson, 226 Wis. 2d at 633; McDonough v. DWD, 227 Wis. 2d 271, 282, 595 N.W.2d 686 (1999).

¶ 68. The rule to liberally construe in favor of the party seeking review of an agency decision comports with our recognition of the unfairness that can arise where ambiguities in procedural statutes create confusion about the proper method of service. We have said that where the petitioner has complied with the language of a procedural statute, even where it can be reasonably interpreted in more than one way, it would be "extraordinarily harsh to cut off [the] petitioner's] right to a review." McDonough, 227 Wis. 2d at 282 (citing Trojan, 104 Wis. 2d at 284). "Once [a party] has exhausted his administrative remedies, having followed ... administrative review procedures ... he should not have to guess whom to serve to initiate the next step in the process and have his grievances heard in a court of law." State ex rel. Grzelak v. Bertrand, 2003 WI 102, ¶ 32, 263 Wis. 2d 678, 665 N.W.2d 244; see also Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 412, *645311 N.W.2d 632 (1981). Therefore, where a procedural statute is ambiguous because it lacks "specific direction[s] clearly indicating who[m] is to be served," service is sufficient for a court to acquire jurisdiction, if such service was reasonable under the circumstances. Grzelak, 263 Wis. 2d 678, ¶¶ 23, 31. In sum, we analyze the action a party takes under an ambiguous procedural statute for judicial review of an agency decision by asking the question: Was service reasonable under the circumstances? See Peterson, 226 Wis. 2d at 633-34.

¶ 69. On multiple occasions, we have applied this test to conclude that a party achieved sufficient service by acting reasonably under the circumstances, even when the party served was not necessarily "right." See Sunnyview Village, 104 Wis. 2d at 412 (holding that service of a petition on the Department of Administration (DOA) and not the Division of Nursing Home Forfeiture Appeals (DNHFA) was a reasonable approach according to one interpretation of ambiguous statutory language in Wis. Stat. § 227.16(l)(a) when read in conjunction with Wis. Stat. § 227.01(1) and therefore, the petitioner had fulfilled the procedural requirements of § 227.16 and was entitled to its day in court); McDonough, 227 Wis. 2d at 283 (concluding that where the interaction of statutes produced an ambiguity, a health care provider's service on the Labor and Industry Review Commission (LIRC) and not the Department of Workforce Development (DWD), accomplished the necessary service where the health care provider's decision to do so was reasonable under the language of the statutes); Peterson, 226 Wis. 2d at 635 (concluding that when property owners served the State of Wisconsin rather than the DOT in the course of condemnation proceedings, they had taken reasonable action under one interpretation of an ambiguous statute and therefore, the property owners had successfully *646completed the statutory requirements to obtain review by the circuit court); Grzelak, 263 Wis. 2d 678, ¶ 29 (concluding that where the procedural rules governing an inmate's service of a petition for writ of certiorari were ambiguous, the inmate's service of a petition on the warden rather than on the Secretary of the Department of Corrections (DOC) was reasonable, if incorrect, and successfully conferred jurisdiction on the circuit court to hear the petition).

¶ 70. With the existence of statutory ambiguities in mind, we have also previously recommended to agency decision-makers that they append specific and clear written notice to their final decisions, indicating the proper method of service necessary to obtain judicial review of the decision. McDonough, 227 Wis. 2d at 283; Peterson, 226 Wis. 2d at 634-35; Sunnyview Village, 104 Wis. 2d at 412. The purpose of such notice is to offer clarity where the statutes have created confusion. See Peterson, 226 Wis. 2d at 634-35.

¶ 71. An agency's notice attached to its final decision can also play a role in our analysis of whether a party's course of action in attempting to fulfill procedural requirements was reasonable "under the circumstances." However, the mere existence of such a notice does not necessarily mean that the notice offered sufficient clarity to determine a single, reasonable course of action. For example, in McDonough, we held that where the DWD, in its final order, simply referred the petitioner to one of the ambiguous procedural statutes at issue, the petitioner could not be faulted for serving the LIRC as opposed to the DWD because that course of action comported with one reasonable view of the statute. McDonough, 227 Wis. 2d at 283-84. In sum, the effect of such a notice on the reasonableness determination will depend on the clarity of the notice.

*647C. Statutory Construction

¶ 72. To properly analyze All Star's actions with regard to the applicable procedural rules, we must begin with the relevant language of Wis. Stat. § 227.53(1), which states:

Parties and proceedings for review. (1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review of the decision as provided in this chapter and subject to all of the following procedural requirements:
(a) 1. Proceedings for review shall be instituted by serving a petition therefor personally or by certified mail upon the agency or one of its officials, and filing the petition in the office of the clerk of circuit court for the county where the judicial review proceedings are to be held. ...
2. Unless a rehearing is requested under s. 227.49, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48. If a rehearing is requested under s. 227.49, any party desiring judicial review shall serve and file a petition for review within 30 days after service of the order finally disposing of the application for rehearing, or within 30 days after the final disposition by operation of law of any such application for rehearing. The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency.
(b) The petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds ... upon which petitioner contends that the decision *648should be reversed or modified. The petition may be amended, by leave of court, though the time for serving the same has expired. 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....
(c) A copy 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 each party who appeared before the agency in the proceeding in which the decision sought to be reviewed was made or upon the party's attorney of record. (Emphasis added.)

¶ 73. When we interpret a statute, we rely on the criteria set out in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we explained that:

[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Id., ¶ 44. Context is also important when determining the plain meaning of a statute, as is the purpose of the statute and its scope, if those qualities can be ascertained from the language of the statute itself. Id., ¶¶ 46-48. These are all intrinsic sources for statutory interpretation. Id. However, if statutory language is ambiguous, we often consult extrinsic sources such as legislative history. Id., ¶ 48.

¶ 74. As both the court of appeals and the majority opinion conclude, the statute is ambiguous. See All Star Rent A Car, Inc. v. DOT, 2004 WI App 198, ¶¶ 11-12, 276 Wis. 2d 793, 688 N.W.2d 681; majority op., ¶ 27. First, the term "agency" is ambiguous due to the interaction of Wis. Stat. § 227.53(1) with various other statutes, including Wis. Stat. § 227.01(1), Wis. *649Stat. § 227.46(2m), Wis. Stat. § 227.47(1), and Wis. Stat. § 227.48(2).

¶ 75. When Wis. Stat. § 227.53(l)(b) provides that the petition shall name the "agency whose decision is sought to be reviewed as respondent," and that language is considered in conjunction with the definition of agency as provided in Wis. Stat. § 227.01(1), it appears that the term "agency" would refer to the DOT, as the majority itself notes. See majority op., ¶¶ 30-31. "Agency" is defined therein as follows:

"Agency" means the Wisconsin land council or a board, commission, committee, department or officer in the state government, except the governor, a district attorney or a military or judicial officer.

Wisconsin Stat. § 227.01(1).

¶ 76. This definition of "agency" readily applies to the DOT, which is a department in the state government, but it does not apply to the DHA, which is a division of the DOA.

¶ 77. However, Wis. Stat. § 227.46(2m) provides, in pertinent part:

In any hearing or review assigned to a hearing examiner under s. 227.43(l)0bg), the hearing examiner presiding at the hearing shall prepare a proposed decision, including findings of fact, conclusions of law, order and opinion .... The decision of the administrator of the division of hearings and appeals is a final decision of the agency subject to judicial review under s. 227.52. The department of transportation may petition for judicial review.

¶ 78. When the language of Wis. Stat. § 227.53(1), specifically, "decision of the agency," is read in conjunction with Wis. Stat. § 227.46(2m), it appears that the DHA, as the final adjudicator under these facts, could be designated as the party to serve.

*650¶ 79. To further complicate matters, three other closely related statutes, Wis. Stat. § 227.46(5), Wis. Stat. § 227.47(1) and Wis. Stat. § 227.48(2) provide the following:

227.46(5) In any class 2 proceeding, if the decision to file a complaint or otherwise commence a proceeding to impose a sanction or penalty is made by one or more of the officials of the agency, the hearing examiner shall not be an official of the agency.
227.47(1) Except as provided in sub. (2), every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include ....
227.48(2) Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period ... for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to rim until the agency has complied with this subsection. (Emphasis added.)

¶ 80. In sum, it is difficult to derive from Wis. Stat. § 227.53(1) and this statutory scheme a satisfactory conclusion with regard to which "agency" to serve, or whose "final decision" it is that triggers the need for judicial review. Absent a single answer that would consistently harmonize the seemingly conflicting implications of the aforementioned statutes, both the inter*651pretation of All Star, that it is the DOT, and the interpretation of the DOT, that it is the DHA, are reasonable.

¶ 81. In Sunnyview Village, we previously recognized the ambiguity produced by the term "agency" in this very statute. The legislature has not changed the definition discussed in Sunnyview Village, and as the majority notes, the term "still serves as something of a snare." Majority op., ¶ 31.

¶ 82. Furthermore, the ambiguity in the statutory scheme, particularly with regard to the relationship between the DHA and various line agencies, is illuminated by an entire line of cases in which proper service for judicial review of a DHA decision was not at issue, hut in which a line agency was named as the respondent even though the final agency decision under review was that of the DHA. See Buettner v. DHFS, 2003 WI App 90, 264 Wis. 2d 700, 663 N.W.2d 282 (Ct. App. 2003); Bidstrup v. DHFS, 2001 WI App 171, 247 Wis. 2d 27, 632 N.W.2d 866; Artac v. DHFS, 2000 WI App 88, 234 Wis. 2d 480, 610 N.W.2d 115 (Ct. App 2000); Borsellino v. DNR, 232 Wis. 2d 430, 606 N.W.2d 255 (Ct. App. 1999); Froebel v. DNR, 217 Wis. 2d 652, 579 N.W.2d 774 (Ct. App. 1998); Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 588 N.W.2d 667 (Ct. App. 1998).

¶ 83. This confusion comes from the gradual shift of the adjudicative function traditionally performed by line agencies themselves, or their individual adjudicative bodies, to the DHA. This occurred as a result of the legislature's creation of Wis. Stat. § 227.43 in 1977, which granted to the DHA authority to assign hearing examiners in contested cases previously adjudicated within various line agencies of the state. The DHA now performs hearings over matters for the Department of *652Natural Resources, the DOT, the Department of Commerce, the DOC, the Department of Justice, the Department of Public Instruction, the Department of Employee Trust Funds, the DOA, and the Department of Health and Family Services.

¶ 84. I recently discussed the shift of adjudicative functions to the DHA in Racine Harley-Davidson, Inc. v. Division of Hearings & Appeals, 2006 WI 86, ¶ 110, 292 Wis. 2d 549, 717 N.W.2d 184 (Roggensack, J., concurring) (citing DOT v. Office of the Comm'r of Transp., 159 Wis. 2d 271, 277-78, 463 N.W.2d 870 (Ct. App. 1990)); see also 1995 Wis. Act 370, § 14. The language of the procedural statutes has not been fully adjusted to account for this evolving adjudicative reality. The resultant situation is one similar to that recognized in Sunnyview Village, where the controlling procedural statute had not been adjusted for executive restructuring that created "divisions" as the principal subunit of a department. As we explained, this created confusion as to whether the DOA, or a subunit therein, the DNHFA, was the appropriate entity to serve. Sunnyview Village, 104 Wis. 2d at 399-01; see also majority op., ¶ 30.

¶ 85. Contrary to the majority opinion, I conclude that the case at bar is analogous to Sunnyview Village. The majority's attempt to distinguish Sunnyview Village is unconvincing. The distinction the majority makes is based on the relationship between the DNHFA and the DOA, concluding that because DNHFA was within the DOA, Sunnyview Village's erroneous service on the DOA was reasonable where a statutory ambiguity made the correct procedure difficult to ascertain. However, in this case, as in Sunnyview Village, there is confusing statutory language that could refer to either the DHA or the DOT, and All Star's service on the DOT *653was based on that confusion. When the central issue in a review of the method of service is statutory language that could implicate more than one entity as the correct one to serve, the majority's distinction is not relevant. That is, it makes no difference whether the DOT is or is not a part of the DHA; what matters is that according to the statutory scheme, it was reasonable for All Star to serve the DOT.

D. Reasonableness Under the Circumstances

¶ 86. In seeking review from the DHA decision, All Star petitioned the Dane County Circuit Court, naming the DOT as respondent; All Star also served the petition on the DOT and the Attorney General. All Star explains that course of action by noting the interaction of Wis. Stat. § 227.53(1) with Wis. Stat. § 227.01(1), Wis. Stat. § 227.46(2m), and Wis. Stat. § 227.48(2), saying that the "agency" referred to in § 227.53(1) is the DOT. The majority concludes that this is one reasonable interpretation of the statutory scheme, in part because § 227.01(1) can be interpreted reasonably to exclude a division, thereby eliminating the DHA as the appropriate party on which to serve notice. Majority op., ¶ 31. The majority concludes that All Star's failure to name and serve the DHA as the respondent "might be understandable" if All Star were following only the statutes. Id. However, in the spirit of our rule that we will liberally construe ambiguous procedural statutes in favor of the petitioner seeking review, Peterson, 226 Wis. 2d at 633, I conclude that if All Star had only the statute for guidance, its actions were reasonable.

¶ 87. However, also important to consider is the effect of the notice appended to the final decision of the DHA. If the notice clearly specified the proper party or person to serve so as to eliminate the ambiguity in the *654statutory directive, then All Star's actions may not have been reasonable under the circumstances. However, the DHA did not name whom to serve.

¶ 88. The majority contends, however, that "there can be no doubt that the Notice required All Star to serve DHA." Majority op., ¶ 50,1 disagree. The relevant portion of the Notice said:

Any person aggrieved by the attached decision which adversely affects the substantial interests of such person by action or inaction, affirmative or negative in form is entitled to judicial review by filing a petition therefore in accordance with the provisions of Wis. Stat. §§ 227.52 and 227.53. Said petition must be filed within thirty (30) days after service of the agency decision sought to be reviewed. If a rehearing is requested as noted in paragraph (1) above, any party seeking judicial review shall serve and file a petition for review within thirty (30) days after service of the order disposing of the rehearing application or within thirty (30) days after final disposition by operation of law. Any petition for judicial review shall name the Division of Hearings and Appeals as the respondent. Persons desiring to file for judicial review are advised to closely examine all provisions of Wis. Stat. §§ 227.52 and 227.53 to insure strict compliance with all its requirements.

¶ 89. The majority's conclusion that the nature of the Notice and its directive is "direct and clear" depends on the majority opinion's competent, but very complicated, analysis of the Notice. Majority op., ¶ 51. While an experienced attorney may come to the conclusion that the DHA should be served, a person unfamiliar with legal processes may not come to the same conclusion because the Notice is silent with regard to directions about whom to serve. Additionally, the conclusion of the majority fails to recognize the influence of the *655statutes, also referred to in the Notice, which suggest that the DOT is the "agency" to be served.

¶ 90. In addition, the Notice's provision stating that "any party seeking judicial review shall serve and file a petition for review" does not make it obvious to serve the DHA because of the Notice's subsequent instruction, to "name the Division of Hearings and Appeals as the respondent." See majority op., ¶¶ 50-51. The combination of those phrases does not clearly state that the DHA is the "agency" to be served pursuant to Wis. Stat. § 227.53(1). I conclude that the Notice is far from "direct and clear," and that it failed to clarify the statutory ambiguity or offer All Star a clear directive as to proper service. Therefore, under all of the circumstances of the case, including the Notice, I conclude that All Star acted reasonably when it served only the DOT and therefore, All Star did preserve its opportunity for substantive judicial review.

II. CONCLUSION

¶ 91. I agree that Wis. Stat. § 227.53(l)(c) is ambiguous. However, the DHA's notice did not direct All Star to serve the DHA and therefore, it did not clarify the statute's ambiguity. We have previously decided to liberally construe ambiguous procedural statutes in favor of the party seeking review. Peterson, 226 Wis. 2d at 633. Therefore, I conclude All Star's service of only the DOT was reasonable under the circumstances. Accordingly, I would not deny judicial review and because I would affirm the court of appeals, I respectfully dissent.

¶ 92. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this dissent.

All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.