State of Wisconsin Department of Transportation v. Keith J. Peterson
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SUPREME COURT OF WISCONSIN Case No.: 97-2718 Complete Title of Case: State of Wisconsin Department of Transportation, Petitioner-Appellant-Petitioner, v. Keith J. Peterson, Chairman, Douglas County Condemnation Commission, Respondent-Respondent, Harbor Mall Properties Limited Partnership, Henry Cohen and Edith Cohen, Intervening-Respondents. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 218 Wis. 2d 473, 581 N.W.2d 539 (Ct. App. 1998, Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 8, 1999 March 3, 1999 Circuit Douglas Thomas J. Gallagher JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the petitioner-appellant-petitioner the cause was argued by Kathleen M. Ptacek,, assistant attorney generals, with whom on the briefs was Charles R. Larsen, assistant attorney general and James E. Doyle, attorney general. For the respondent-respondent and interveningrespondents there was a brief by Robert R. Kanuit and Weiby, Maki, Durst, Ledin, Bick & Lehr, S.C.; Keith J. Peterson, all of Superior, of counsel, Don Bye, Duluth, MN and oral argument by Robert R. Kanuit. No. 97-2718 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-2718 STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin Department of Transportation, JUN 8, 1999 Petitioner-Appellant-Petitioner, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Keith J. Peterson, Chairman, Douglas County Condemnation Commission, Respondent-Respondent, Harbor Mall Properties Limited Partnership, Henry Cohen and Edith Cohen, Intervening-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, Transportation (DOT) seeks J. review The Wisconsin of a Affirmed. Department published court of of appeals decision that affirmed the circuit court s denial of the DOT s petition for writ of prohibition.1 since the property owners incorrectly The DOT asserts that served the State of Wisconsin rather than the DOT with their notice of application for appeal, the circuit court was without authority to assign that appeal to the county condemnation commission. 1 Because we DOT v. Peterson, 218 Wis. 2d 473, 581 N.W.2d 539 (Ct. App. 1998) (affirming order of Circuit Court for Douglas County, Thomas J. Gallagher, Judge). 1 No. 97-2718 conclude that Wis. Stat. § 32.05(9) (1995-96)2 can reasonably be interpreted as permitting the property owner to serve the State of Wisconsin and that the circuit court had authority to assign the appeal, we affirm the court of appeals. ¶2 In 1994, the DOT condemned property belonging to Henry and Edith Cohen and to Harbor Mall Properties (collectively, the Cohens ) and recorded the award of damages with the Douglas County Register of Deeds. Nearly two years later the Cohens sought to challenge the amount of the damage award by initiating an appeal under Wis. Stat. § 32.05(9). Rather than serving the DOT directly, the Cohens served the attorney general who is the designated service agent for the State of Wisconsin. Stat. § 801.11(3). Though the application for See Wis. appeal was 2 32.05 Condemnation for sewers and transportation facilities . . . (9) APPEAL FROM AWARD BY OWNER OR OTHER PARTY IN INTEREST. (a) Any party having an interest in the property condemned may, within 2 years after the date of taking, appeal from the award . . . by applying to the judge of the circuit court for the county wherein the property is located for assignment to a commission of county condemnation commissioners . . . . This application shall contain a description of the property condemned and the names and lastknown addresses of all parties in interest but shall not disclose the amount of the jurisdictional offer nor the amount of the basic award. Violation of this prohibition shall nullify the application. Notice of the application shall be given to the clerk of the court and to all other persons other than the applicant who were parties to the award. The notice may be given by certified mail or personal service. Upon proof of the service the judge shall forthwith make assignment. All further references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated. 2 No. 97-2718 addressed to and served upon the attorney general, the Cohens named the DOT as the condemnor in the application for appeal. ¶3 In December of 1996 the circuit court acted on the application and assigned the appeal to Keith Peterson, Chairman of the Douglas County Condemnation Commission. the Three months later, the DOT filed a petition for supervisory writ of prohibition in the circuit court enjoining commission from hearing the Cohens appeal. the condemnation The DOT contended that the Cohens had not properly appealed their award of damages because they failed to serve the condemnor, the DOT, as required by Wis. Stat. § 32.05(9). ¶4 The determining circuit that Wis. court Stat. denied the § 32.05(9) DOT s could petition, reasonably be interpreted to allow a property owner to obtain jurisdiction over the DOT by serving the attorney general. The DOT appealed and the court of appeals affirmed. ¶5 The court of appeals agreed that the service provisions of Wis. Stat. § 32.05(9) did not clearly indicate whether service of the notice of the appeal should be made on the state agency privy to the award or the State as an entity. DOT v. Peterson, 218 Wis. 2d 473, 484, 581 N.W.2d 539 (Ct. App. 1998). As a result, citing Kyncl v. Kenosha County, 37 Wis. 2d 547, 155 N.W.2d 583 (1968), the court of appeals concluded that any reasonable or strict construction of § 32.05(9) suffice to appeal the DOT s award of damages. Wis. 2d at 484. 3 would Peterson, 218 No. ¶6 The application resolution of the of this statute to case depends undisputed 97-2718 upon facts. the The interpretation of statutes presents a question of law that we review independently of the legal determinations rendered by the circuit court and court of appeals. Deutsches Land, Inc. v. City of Glendale, No. 96-2489 (S. Ct. Apr. 16, 1999). ¶7 Stat. We are asked to decide a discrete issue: § 32.05(9) can reasonably be whether Wis. interpreted to allow jurisdiction over the DOT to be effectuated with service on the State of Wisconsin. State of Wisconsin The issue in this case is not whether the as an entity may condemn property chapter 32 and therefore has consented to be sued.3 under That issue involving the question of sovereign immunity was answered in the negative years ago. Konrad v. State, 4 Wis. 2d 532, 538-39, 91 N.W.2d 203 (1958).4 ¶8 Property owners who have had their property condemned under chapter 32 may appeal from the award of damages given by the condemning entity. the complete and To do so, the property owner must follow exclusive procedures set forth in that 3 However, the Cohens apparently raised that issue in the courts below. See Peterson, 218 Wis. 2d at 481 n.8. 4 As we have often stated, the constitutional guarantee of sovereign immunity bars the State of Wisconsin as an entity from being sued unless it so consents. Fiala v. Voight, 93 Wis. 2d 337, 341-42, 286 N.W.2d 824 (1980); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40-41, 115 N.W.2d 618 (1962). See also Wis. Const. art. IV, § 27. Similarly, once the State consents to being sued, one may only do so in the manner and under the procedure by which it has consented to be sued. Konrad v. State, 4 Wis. 2d 532, 538, 91 N.W.2d 203 (1958). 4 No. chapter. 97-2718 City of Madison v. Tiedeman, 1 Wis. 2d 136, 143, 83 N.W.2d 694 (1957). ¶9 Within two years after the taking occurs, the property owner must file an application for appeal in the circuit court for the county in which the property is located.5 § 32.05(9)(a). in the assigns commission. 42, court, the circuit court does not hear the Instead the circuit court, acting in its administrative capacity, 32, Though the property owner applies for the appeal circuit appeal. Wis. Stat. 148 the appeal to that county s condemnation Schroedel Corp. v. State Highway Comm., 34 Wis. 2d N.W.2d 691 (1967); Wis. Stat. § 32.05(9)(a). However, for the circuit court to have authority to assign the appeal to the county condemnation commission, a property owner must serve all other persons other than the applicant who were parties to the award with notice of the appeal. Wis. Stat. § 32.05(9); State ex rel. Milwaukee County Expressway Commission v. Spenner, 51 Wis. 2d 138, 142-43, 186 N.W.2d 298 (1971); City of La Crosse v. Shiftar Bros., 162 Wis. 2d 556, 560-61, 469 N.W.2d 915 (Ct. App. 1991). ¶10 The service provision in Wis. Stat. § 32.05(9)(a) provides: 5 This general procedure is slightly modified where the condemning entity is a housing authority (Wis. Stat. § 66.4066.404), redevelopment authority (§ 66.431), or community development authority (§ 66.4325). Wis. Stat. § 32.05(9)(a). The special procedures in those instances are not applicable to this case. 5 No. 97-2718 Notice of the application shall be given to the clerk of the court and to all other persons other than the applicant who were parties to the award. The notice may be given by certified mail or personal service. (emphasis added) The term person is defined in chapter 32 at § 32.01: the state, a county, town, village, city, . . . (emphasis added).6 The Cohens acknowledge that it is necessary to serve the DOT, as the condemnor, provision. with notice of the appeal under the service They argue only that the language of chapter 32 quoted above allows service on the DOT to be accomplished by serving the State of Wisconsin through the attorney general. ¶11 The DOT contends that this court in Konrad addressed this very issue and concluded that chapter 32 does not permit service on serving the a department State Wis. 2d at 527-38. of through the the State attorney to be accomplished general. Konrad, by 4 While we agree with the DOT s reading of Konrad, we note that portions of chapter 32 have since been 6 As the initial language of Wis. Stat. § 32.01 indicates, the enumerated definition of person applies unless the context clearly requires otherwise. Thus, for example, should a railroad corporation condemn property under § 32.02(3), the context of the condemnation would clearly require the term person be defined as something other than the terms listed in § 32.01. 6 No. modified in pertinent ways making that discussion 97-2718 in Konrad inapplicable to this case.7 ¶12 In Konrad, a landowner attempted inverse condemnation under chapter 32. to initiate an The landowner contended that the Wisconsin Conservation Commission inversely condemned his land by constructing a dike along a river, which caused his land to flood. Konrad, 4 Wis. 2d at 533-34. In initiating his inverse condemnation proceeding, the landowner served a copy of the petition on the attorney conservation commission. general rather than on the The State objected, arguing that the court had no jurisdiction because the proper state defendant had not been served. ¶13 Id. At the time Konrad was decided, the notice provision in Wis. Stat. § 32.05 (1955-56) required that [n]otice of [the] hearing shall be served upon all interested at least twenty days before said hearing . . . (emphasis added). This court concluded that service on the attorney general on behalf of the State of commission, Wisconsin rather interested party. did than not the satisfy State of § 32.05 because Wisconsin, Konrad, 4 Wis. 2d at 537-38. was the the As a result, this court concluded that the court did not have jurisdiction 7 Konrad addressed two issues arising under chapter 32: (1) whether serving the State of Wisconsin through the attorney general effectuated service upon a subdivision of the State, Konrad, 4 Wis. 2d at 537-38; and (2) whether chapter 32 empowered the State of Wisconsin, as a separate entity, to condemn property and therefore allowed it to be sued directly, id. at 538-39. We are only addressing the first issue in this case. 7 No. over the commission and held that against the commission was void. ¶14 Stat. the chapter 32 97-2718 proceeding Id. In the four decades since Konrad was decided, Wis. § 32.05 has changed in an important way. Instead of requiring that notice be given to all interested as was the case when Konrad was decided, the statute now requires that notice be given to all persons which by definition includes the state. seemingly We believe that this change in phraseology, though minor, reasonably permits the interpretation that service on the State of Wisconsin confers jurisdiction over one of the State s departments.8 ¶15 We have already under slightly different circumstances concluded that the notice provision in Wis. Stat. § 32.05(9) is not a paragon of clarity. Kyncl, 37 Wis. 2d at 555-56. In Kyncl, a county highway committee under the orders of the state highway commission condemned property for expanded highways under Wis. Stat. § 84.09(3) (1965-66). state The relevant part of that statute allowed the county highway commission to condemn the property under chapter 32 if it could not purchase the property expeditiously within the appraised price. ¶16 The county highway commission did condemn Id. property under chapter 32 and the landowner appealed the amount of the 8 We also note that among the entities specifically enumerated as persons in Wis. Stat. § 32.01, no mention is made of state departments, only the state. 8 No. award of damages.9 of initiating his Kyncl, 37 Wis. 2d at 551-52. appeal, the landowner 97-2718 In the process served the county involved in the condemnation but did not serve either the county highway committee or the state highway commission. Id. at 549. The county argued that service upon it was improper, contending that the county highway committee as the actual condemnor under chapter 32 was the proper entity for service. ¶17 Id. at 553. This court disagreed, noting that the statutes did not specifically articulate the identity of the condemnor. 554-55. Id. at Additionally, the court observed that while the county highway committee was involved in the condemnation, the county ultimately controlled the committee and had the title of the condemned property placed in its name. Id. The court concluded that in light of the statutory indefiniteness the landowner s service on the county was a logical selection that had the legal effect of authorizing the court to hear the appeal. ¶18 We think that the same rule applies in Id. at 555. this case. Here, unlike in Kyncl, the Cohens were reasonably sure of the condemning authority s identity, although the award of damages 9 Unlike this case, the property owners in Kyncl exercised their right to appeal directly to the circuit court rather than having their appeal first heard by the county condemnation commission. Kyncl v. Kenosha County, 37 Wis. 2d 547, 552, 155 N.W.2d 583 (1968); Wis. Stat. § 32.05(11) (1967-68). 9 No. document may However, have the caused Cohens some confusion uncertainty in regard.10 that emanates 97-2718 from the interpretation of Wis. Stats. § 32.05(9) and § 32.01. ¶19 On the one hand, the Cohens believed that the DOT was responsible for condemning their property. would seem intuitively correct. Service on the DOT See Zinn v. State, 112 Wis. 2d 417, 434, 334 N.W.2d 67 (1983) ( the aggrieved landowner must sue the state agency which has taken the property ). However, on the other hand the term person in § 32.05(9) is defined in § 32.01 as the state and not as any department of the state. As a result, a literal reading of § 32.05(9) indicates that the state, rather than any department like the DOT, should be the entity served. ¶20 We compliance have with long adhered procedural to statutes the is rule that necessary strict to obtain jurisdiction to review administrative agency decisions. Trojan 10 The Cohens had been negotiating with the DOT for some time prior to the actual condemnation, so they quite reasonably concluded that the DOT was the authority that finally condemned their property. However, the award of damages document presented to the Cohens could be interpreted as casting some doubt on that conclusion. Although the award of damages document was signed by an official of the DOT and indicated at various points that the State of Wisconsin, Department of Transportation was condemning the property, the document also contained numerous references to the State of Wisconsin. For example, the document was entitled Award of Damages, State of Wisconsin and stated that the State of Wisconsin has determined it necessary to acquire [the property]. The language of the award of damages document appears to exacerbate the uncertainty created by Wis. Stats. § 32.05(9) and § 32.01. 10 No. v. Board of Regents, 104 Wis. 2d 277, 283, 311 97-2718 N.W.2d 586 (1981); see also 519 Corp. v. DOT, 92 Wis. 2d 276, 286-88, 284 N.W.2d 643 (1979); Brachtl v. Department of Revenue, 48 Wis. 2d 184, 187, 179 N.W.2d 921 (1970). that the statutes requirements Wis. 2d at must necessary 284; see However, a companion rule is clearly to also forth such pursue set review. Brachtl, 48 the procedural Trojan, Wis. 2d at 104 186-87 (concluding that the statute was unambiguous). ¶21 lacks As we have previously said, where a procedural statute specific direction clearly indicating served with notice, an ambiguity exists. 555; Trojan, ambiguity 104 exists Wis. 2d at 283. [p]rocedural who is be Kyncl, 37 Wis. 2d at Additionally, statutes to are to be where an liberally construed so as to permit a determination upon the merits of the controversy if such construction is possible. Kyncl, 37 Wis. 2d at 555-56; State v. Rosen, 72 Wis. 2d 200, 204-05, 240 N.W.2d 168 (1976). ¶22 The upshot of these maxims is that where a procedural statute does not provide specific direction for compliance, the ambiguity is to be resolved in favor of the person appealing the condemning entity s award of damages. 56. We are satisfied that in Kyncl, 37 Wis. 2d at 555this instance Wis. Stat. § 32.05(9) lacks specific direction, resulting in an ambiguity. Faced with this ambiguity, the Cohens action of naming the DOT as the condemnor reasonable and but serving logical the course 11 State of of Wisconsin action under was a the No. circumstances.11 97-2718 See id. at 555; see also Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 411-12, 311 N.W.2d 632 (1981). To cut off [the Cohens ] right to a review of the [DOT s] decision when [they] complied with the literal language of the service requirement in extraordinarily harsh. [Wis. Stat. § 32.05(9)] Trojan, 104 Wis. 2d at 284. would be We decline to do so. ¶23 The § 32.05(9) to legislature clarify the can, of course, procedures a amend property Wis. Stat. owner must follow when applying for an appeal of an award of damages. Even without legislative action, a condemning entity can take steps to eliminate any confusion. notification of an It is a better practice to have the agency s decision accompanied by an explanation of the procedures that must be followed in order to appeal that decision. See, e.g., Weisensel v. DHSS, 179 Wis. 2d 637, 645 n.4, 508 N.W.2d 33 (Ct. App. 1993) (quoting notice from Department of Health and Social Services final order); Gomez v. LIRC, 153 Wis. 2d 686, 695, 451 N.W.2d 11 475 (Ct. App. 1989) We recognize that the we have on a prior occasion concluded that service on the State of Wisconsin cannot confer jurisdiction over an unknown, unnamed state employee. Miller v. Smith, 100 Wis. 2d 609, 620, 302 N.W.2d 468 (1981). That rule retains its vitality but must be distinguished in this case. Miller was a decision that interpreted Wis. Stat. § 801.11 rather than § 32.05(9). Since it is the language of § 32.05(9), as defined by § 32.01, that created the Cohens reasonable confusion, the general rule enunciated in Miller is not applicable. Cf. Weisensel v. DHSS, 179 Wis. 2d 637, 644-45, 508 N.W.2d 33 (Ct. App. 1993) (statute requiring service on the agency or one of its officials would not allow service to be accomplished by serving agency s legal counsel). 12 No. (Sundby, J., concurring). 97-2718 Such notice provided by a condemning entity would remove any confusion that might exist in perfecting a Wis. Stat. § 32.05(9) application for appeal of an award of damages. ¶24 This is not the first time this court has offered such a suggestion in connection with an appeal of an agency decision. Sunnyview Village, 104 Environmental Decade, Inc. N.W.2d 609 (1978). Wis. 2d v. PSC, at 84 412-13; Wis. 2d Wisconsin s 504, 534, 267 In interpreting a different chapter s notice requirement, we said in Sunnyview Village, 104 Wis. 2d at 412: We acknowledge . . . that it is important that citizens not be defeated in their redress of grievances by the maze of governmental entities. A person aggrieved by an administrative decision should not have to guess which governmental entity to name and serve as the respondent in proceedings for judicial review. Apparently, the DOT has not taken our advice to heart. Had it done so, perhaps the present issue would not have arisen and this case would not have appeared before this court. In any event, we strongly encourage a condemning entity to include with its award of damages a notification of the process a property owner must undertake for appeal. ¶25 ambiguous In sum, we determine that Wis. Stat. § 32.05(9) is and can reasonably be interpreted as permitting a property owner to serve the State of Wisconsin rather than the DOT. As a result, when the Cohens served the attorney general with notice of their application for appeal, the circuit court had authority to assign the appeal to the county condemnation 13 No. 97-2718 commission and properly denied the DOT s writ of prohibition. Accordingly, we affirm the court of appeals. By the Court. The decision affirmed. 14 of the court of appeals is 1
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