STATE OF WISCONSIN
CIRCUIT COURT: BRANCH 43
MILWAUKEE POLICE ASSOCIATION
LOCAL #21, IUPA, AFL-CIO,
Case No. 99-CV-000284
[Decision No. 29270-C]
[NOTE: This document was re-keyed by WERC. Original pagination has been
DECISION AND ORDER
In 1994, the Milwaukee Police Department denied the petitioner, Michael Durfee
promotion to Lieutenant of Detectives. He and his union, the Milwaukee Police Association
appealed the decision to the Board of Milwaukee Fire and Police Commissioners (MFPC)
that, contrary to section 111.70(3) Stats., 1, the Milwaukee Police
Department discriminated again
Durfee because, in the past, he filed grievances through the MPA. On March 7, 1996,
appeared at a special session of the MFPC, convened to consider the possibility of promoting
On April 4, 1996, the MFPC voted to sustain the denial of Durfee's promotion. On March
MPA filed a complaint with the Wisconsin
1 Under Section 111.70(2), municipal employees have the right to
become members and participate in
unions. It is a violation of section 111.70(3)(a)(3) to, "encourage or discourage a
membership in any labor
organization by discrimination in regard to hiring, tenure, or other terms or conditions of
employment . . ."
Employment Relations Commission ("WERC"), on Durfee's behalf, alleging that the
in prohibited practices when it decided to sustain the denial of Durfee's promotion. On
1998, WERC affirmed the denial of Durfee's promotion. The MPA and Durfee now appear
circuit court seeking review of WERC's decision.
Petitioner mailed notice of the appeal on January 14, 1999, through ordinary,
On March 9, 1999, WERC filed a motion to dismiss, asserting that Petitioners failed to
WERC of the appeal because they did not send notice of the petition through certified mail,
by section 227.53(1)(a) stats. Petitioners contend that because WERC does not dispute either
timeliness of service, or having actual notice of the appeal, sending notice of the petition
ordinary, first-class mail complied with the notice provisions of section 227.53(1)(a) Stats.,
therefore, this matter should not be dismissed.
In 519 Corp.v. Dept of Transportation, 92 Wis. 2d 276, 284 N.W.2d
643 (1979), the Supreme
Court addressed the issue of whether ordinary mail may be substituted for the requirement
certified mail be used to serve an opposing party with notice of an appeal's commencement.
that notice provisions are to be followed strictly; therefore, use of ordinary mail is not
the statute requires use of certified mail.
Although the Court recognized that the respondents had actual notice of the appeal,
not harmed by the appellant's use of ordinary first-class mail, it held that use of ordinary
mail did not
satisfy the notice requirements. 519 Corp. v. Dept. of Transportation, 92 Wis.
2d 276, 288, 284
N.W.2d 643 (1979). Strict compliance with procedural statutes such as section 227.53(1)(c)
necessary, "because the key purpose of procedural provisions . . . is to maintain a simple
uniform way of conducting legal business in our courts. Uniformity,
consistency, and compliance with procedural rules are important aspects of the
justice. If the statutory proscriptions are to be meaningful, they must be unbending."
As noted by Petitioner, the Supreme Court was not interpreting section 227.53 Stats.,
instead examine the service requirements for proceeding with an appeal from a condemnation
Id at 284-285, 284 N.W.2d 643. However, the methods of service permitted by
the statutes were the
same; service had to be given personally or through certified mail2.
Further, the facts of 519 Corp. are similar to the facts currently before
the court. Like the
petitioners in the case at hand, the appellants in 519 Corp. served the
respondents in a timely fashion,
but used ordinary, first-class mail, instead of certified mail. The appellants in 519
Corp. also made a
similar argument to that of the Petitioners', by forwarding the position that use of ordinary,
mail was sufficient where actual delivery could be proved. Thus, given the factual
similarities and the
identity of the legal issues, the Court's holding in 519 Corp. is applicable to the
case at hand.
2 Section 32.05(10)(a) Stats. 1975 reads in relevant part:
(10) APPEAL FROM COMMISION'S AWARD TO CIRCUIT COURT. (a)
Within 60 days after
the date of filing of the commission's award, any party to the proceeding before the
appeal to the circuit court of the county wherein the property is located. Notice of such
be given to the clerk of the circuit court and to all persons other than the appeallant who
to the proceeding before the commissioners. Notice of appeal may be given by
certified mail or by
personal service . . .
Section 227.53(1)(a) reads in relevant part:
Except as otherwise specifically provided by law, any person aggrieved by a
decision specified in s.
227.52 shall be entitled to judicial review thereof, as provided in this
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 the circuit
the county where the judicial review proceedings are to be held. (emphasis added).
It is Petitioners' contention that interpretation of section 227.53(1)(c) stats., should be
so that every appellant has an opportunity to be heard. Petitioners argue that the purpose
section 227.53(1)(c) Stats., is to ensure notice to an adverse party that an appeal has been
even though Petitioners did not serve WERC personally or through certified mail, their
ordinary mail fulfilled the purpose of section 227.53(1)(c) Stats., because WERC admits to
receipt of the petition.
In support of these propositions, Petitioners cite Patterson v. Board of
Regents, 103 Wis. 2d
358, 309 N.W.2d 3 (Ct. App. 1981). However, Petitioners misinterpret the holding in
While the court in Patterson did imply that some flexibility in the service
requirements of chapter 227
was permissible, it did not state that regular mail was an appropriate method of service.
360, 309 N.W.2d 3.
The purpose of requiring the use of certified mail is, "to ensure delivery and to easily
the date of delivery." Id. The Patterson court deemed the use of
registered mail an acceptable
deviation from the notice provisions of section 227.53(1)(c) Stats., reasoning that registered
fulfills the purpose of requiring certified mail to an even greater degree because registered
requires a receipt of delivery, which is optional when certified mail is used. Id.
The Peterson court reconciled its holding with that of the Supreme
Court's decision in
519 Corp. v. Dept. of Transportation, 92 Wis. 2d 276, 284 N.W.2d 643
(1979), by distinguishing
ordinary mail from registered mail, noting that ordinary mail, unlike registered mail, does
not provide a
return receipt. Id. Therefore, ordinary mail, unlike registered mail, does not
fulfill the purpose behind
requiring the use of certified mail. Consequently, Patterson lends no support to
Petitioners' claim that
its service by ordinary mail satisfied the notice requirements of section 227.53 Stats.
"Dismissal may be a harsh penalty for failure to comply with statutory service
but uniformity, consistency and compliance with procedural rules are necessary to maintain a
orderly and uniform system of conducting business in courts." Weisensel v.
DHSS, 179 Wis. 2d 637,
647, 508 N.W.2d 33 (Ct. App. 1993).
The language of section 227.53(1)(c) Stats., clearly states that service must be made
or through certified mail. "Strict compliance with the service requirements of sec.
is essential to the circuit court's subject matter jurisdiction." County of Milwaukee v.
LIRC, 142 Wis.
2d 307, 312, 418 N.W.2d 35 (Ct. App. 1987). Service via ordinary, first-class mail does
not meet the
requirements of section 227.53(1)(c) Stats. Id.
Because petitioners did not send notice of the appeal through certified mail, this court
subject matter jurisdiction over this case.
THEREFORE, it is hereby ordered that this action is DISMISSED.
Dated in Milwaukee Wisconsin this 25th day of May, 1999.
Circuit Court Judge