March 14, 2024 – Dismissal of a petition for judicial review is warranted where a party failed to physically place the petition in the hands of an agency employee authorized to accept service before the filing deadline ran, the Wisconsin Court of Appeals (District IV) has held in Laughing Cow, LP v. Wisconsin Department of Revenue, 2023AP583 (Feb. 29, 2024).
In August 2022, Laughing Cow, LP (Laughing Cow) appealed tax assessments, made by the state Department of Revenue (the Department), to the Wisconsin Tax Appeals Commission (Commission).
The Commission rejected the appeals in a written decision. That decision listed the filing requirements for seeking judicial review, including the requirement that Laughing Cow make timely service of a petition for judicial review on the following:
The deadline for filing a petition for judicial review was Aug. 24, 2022.
Three Envelopes
On Aug. 22, 2022, Laughing Cow filed a petition for judicial review with the clerk of the Dane County Circuit Court. On Aug. 23, 2022, Laughing Cow filed the petition with the Commission.
Laughing Cow attempted to file the petition with the Department on Aug. 23, 2022.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
On that day, a paralegal at the law firm hired to represent Laughing Cow gave the firm’s office manager three envelopes, each containing a copy of the petition.
One envelope was addressed to the secretary of the Department; the other two were each addressed to an attorney in the Department’s general counsel office.
Drops Documents Off
The law firm’s office manager arrived at the Department’s offices about 4 p.m. on Aug. 23, 2022, and stopped at the security desk.
The office manager said she had documents for the persons named on the envelopes.
The officer manager later testified that she didn’t remember telling the security officer that she was there to serve papers, and the security officer later testified that he was sure the office manager did not use the term “service of process” or say that she was there to “serve” the documents.
The security officer led the office manager to the customer service desk, which was staffed by a tax specialist.
The tax specialist took the envelopes. She thought the documents presented by the officer manager were property tax assessment appeals – documents she was authorized to accept.
The office manager never asked the tax specialist whether she was authorized to accept service for the Department or the secretary.
The tax specialist never told the office manager that she was authorized to accept service for the Department or the secretary.
Petition Dismissed
The tax specialist opened the envelopes and realized the documents weren’t property tax assessment appeals.
She stamped the documents as received on Aug. 23, 2022, and sent an email to Kathy Traxler, an employee in the Department’s general counsel office who was authorized to accept service.
Traxler collected the documents on the morning of Aug. 24, 2022, and placed each envelope in the mailbox of the person to whom it was addressed.
In the circuit court, the Department moved to dismiss Laughing Cow’s petition.
The Department argued that Laughing Cow hadn’t served the petition as required by Wis. Stat. section 227.53(1)(a)1. That statute requires that service “personally or by certified mail upon the agency or one of its officials.”
The court granted the Department’s petition. Laughing Cow appealed.
Strict Compliance Required
A party seeking judicial review of an agency action under ch. 227 must strictly comply with section 227.53(1)(a)1, noted Judge Rachel Graham for a three-judge panel.
Laughing Cow argued that Traxler, who was authorized to accept service for the Department, had the petition in hand on the morning of the last day of the period in which it could be filed for judicial review.
But Graham explained that, under Court of Appeals case law, to timely serve the petition on the Department, the office manager needed to physically give the documents to Traxler.
That didn’t happen, Judge Graham pointed out. She also noted that the officer manager didn’t tell Traxler or any other Department employee that she was serving a petition for judicial review.
“Instead, the office manager placed the petition in the hands of a tax specialist who was not an ‘official’ of the Department, was not authorized to accept service of papers on the Department’s behalf, and never represented herself to be authorized to accept service on the Department’s behalf,” Graham wrote.
A Harsh Penalty
Laughing Cow argued that it qualified for a recognized exception to the requirements of section 227.53(1)(a)1. and cited three cases decided by the Wisconsin Supreme Court.
But Judge Graham reasoned those cases were distinguishable, for the following reasons:
Laughing Cow’s attempt at service was not premature, as in Wisconsin’s Env’t Decade v. PSC, 84 Wis. 2d 504, 267 N.W.2d 609 (1978);
Laughing Cow’s petition did not include a mistake in the caption, as in Evans v. Department of Local Affairs and Dev., 62 Wis. 2d 622, 215 N.W.2d 408 (1974); and;
a clerk did not unreasonably fail to file a petition served by a pro se party, as in Hamilton v. DILHR, 56 Wis. 2d 673, 203 N.W.2d (1973).
Graham acknowledged that the pro se party in Hamilton had, like the law firm office manager, failed to personally serve the petition on an agency official or the official’s express designee.
However, Judge Graham pointed out that the pro se party in Hamilton was not represented by counsel and was misled by the agency as to whether the official whom the party served was authorized to accept service for the agency.
“Dismissal may be a harsh penalty for Laughing Cow’s failure to comply with the statutory service requirements, but our cases have stated that ‘uniformity, consistency, and compliance with procedural rules are necessary to maintain a simple orderly, and uniform system of conducting business in the courts,’” Graham wrote.
