SHOPPER ADVERTISER, INC., d/b/a Shopper Advertiser-Walworth County, and Shopping News, Inc., d/b/a Greater Beloit Shopping News, Petitioners-Appellants and Cross-Respondents-Petitioners, v. Wisconsin DEPARTMENT OF REVENUE, Respondent and Cross-Appellant.
No. 81-1409
Supreme Court of Wisconsin
Argued January 31, 1984. — Decided February 28, 1984.
344 N.W.2d 115
I am authorized to state that JUSTICE LOUIS J. CECI joins in this concurring opinion.
(Also reported in 344 N.W.2d 115.)
For the respondent and cross-appellant the cause was argued by John J. Glinski, assistant attorney general, with whom on the briefs in court of appeals was Bronson C. La Follette, attorney general.
WILLIAM G. CALLOW, J. This is a review of a published decision1 of the court of appeals reversing a
The issues presented on appeal are whether the proper venue for judicial review of a decision of the Tax Appeals Commission is in the county where the petitioner-taxpayer resides, as specified in
This case originated in 1975 when the Wisconsin Department of Revenue (Department) assessed a sales tax against Shopper Advertiser, Inc. (taxpayer) for the sale of a publication known as the Greater Beloit Shopping News and a use tax assessment against both Shopper Advertiser, Inc., and Shopping News, Inc., (taxpayer) for materials purchased and used in publishing the Greater Beloit Shopping News and the Walworth County Shopper Advertiser. The taxpayers asserted that their publications qualified as newspapers or periodicals under
It was stipulated for purposes of appeal that both taxpayers were residents of Rock county. On October 12, 1979, the taxpayers filed a petition for review, pursuant to
The circuit court for Rock county on July 14, 1980, ruled that it lacked subject matter jurisdiction over the action because proper venue was with the circuit court for Dane county, as specified by
The court of appeals upheld the Rock county circuit court‘s determination that it did not have subject matter
“(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.15 shall be entitled to judicial review thereof as provided in this chapter.
“(a) Proceedings for review shall be instituted by serving a petition . . . upon the agency . . . and by filing the petition in the office of the clerk of the circuit court for the county where the trial is to be held within 30 days after the service of the decision of the agency upon all parties as provided in s. 227.11. . . . The pro-
ceedings shall be in the circuit court of the county where the petitioner resides. . . .” (Emphasis added.)2
In Wisconsin Valley Improvement Co. v. Public Service Comm., 7 Wis. 2d 120, 95 N.W.2d 767 (1959), we considered the jurisdictional effect of
Applying our decision in Wisconsin Valley to the statutory provisions at issue in this case, we conclude that the method of review of the Tax Appeals Commission‘s decision is governed by
Chapter 227 grants subject matter jurisdiction to all circuit courts to review administrative decisions of the type specified in that chapter. See
However,
The next issue is whether the Rock county circuit court properly transferred the case to the Dane county circuit court, pursuant to
“. . . the language of this statute [sec. 269.51(1), Stats., 1973, now sec. 807.07(1)] is all-encompassing and is applicable whenever an aggrieved party seeks to review an order of ‘any court, tribunal, officer or board.’ While, from a technical viewpoint, there may be an insubstantial difference between an ‘appeal’ and an ‘action to review,’ we see, in respect to this case, no reasonable distinction under the clear policy of the statutes which seeks to permit the correction of irregularities and to avoid dismissals on technical grounds.”
Similarly, we conclude that the language of
In Dring v. Mainwaring, 165 Wis. 356, 162 N.W. 169 (1917), a case was tried in the county court for Iowa county. On appeal, this court determined that the Iowa county court did not have the power to try the action, except to the extent of transferring the case to a court of proper jurisdiction. Applying
In order to effectuate this legislative purpose, we interpret “jurisdiction” within the meaning of
Having determined that
“Compliance with
sec. 227.16, Stats. , has, in the past, proved troublesome because sec. 227.16 is not easy to understand. This court has characterized an earlier version of sec. 227.16 (1) as ‘complex and if read in a cursory fashion . . . confusing.’ Brachtl v. Department of Revenue, 48 Wis. 2d 184, 186, 179 N.W.2d 921 (1970). Despite revision, sec. 227.16 remains complex . . . .”
In the same manner, secs.
We have recognized “that it is important that citizens not be defeated in their redress of grievances by the maze of governmental entities.” Sunnyview Village, 104 Wis. 2d at 412. Likewise, taxpayers should not be defeated from seeking appellate review by a maze of conflicting statutory venue provisions. The record shows that the taxpayers were under the understandable misapprehension that their action for review was governed by
We have previously concluded that proper venue for the action is in the circuit court for Dane county. Thus, it was appropriate for the Rock county circuit court, pursuant to
The court of appeals held that the certification was improper as untimely because it was made more than thirty days after the Tax Appeals Commission had issued its decision. The court cited our prior cases where we have held that strict compliance with procedural requirements is necessary to maintain an action for review. Ryan v. Department of Revenue, 68 Wis. 2d 467, 472, 228 N.W.2d 357 (1975); see, e.g., 519 Corp. v. Department of Transportation, 92 Wis. 2d 276, 287-88, 284 N.W.2d 643 (1979). Thus, the court of appeals concluded that the Dane county circuit court had no jurisdiction because the time limit for seeking review had expired before the case was properly filed in the appropriate court. This conclusion was incorrect.
In Mueller v. Brunn, 105 Wis. 2d at 189, in discussing whether a particular court had jurisdiction to hear the case, we stated:
“. . . We would conclude that the jurisdiction of the court system was properly invoked and it would then be within the authority of the circuit court to transfer the cause to the county in which the real property lies. Upon transfer we would deem the action properly ‘commenced,’ although the running of the statute of limitations would be tolled at the time personal jurisdiction is acquired and the complaint filed in any court which had subject
matter jurisdiction although that venue was improper under the statute.”
The running of the thirty-day time limit for appeal in this case was tolled when the action was filed in the Rock county circuit court, which had subject matter jurisdiction over the matter. This filing was made on October 12, 1979, which was within the thirty-day period after the Tax Appeals Commission‘s decision was issued. Once the matter was before a court with subject matter jurisdiction, the action for review was timely filed. The subsequent transfer to Dane county—the court of proper venue—was not affected by the statutory time limits for appeal under
Because the court of appeals decided the action was barred on jurisdictional grounds, it did not reach the merits of the appeal from the judgment of the Dane county circuit court. Accordingly, we remand the case to the court of appeals for consideration of all previously undecided issues.
By the Court.—The decision of the court of appeals is reversed and cause remanded for further proceedings consistent with this opinion.
SHIRLEY S. ABRAHAMSON, J. (concurring in part and dissenting in part). The taxpayer erred in filing its petition with the Rock county circuit court rather than with the Dane county circuit court. I agree with the majority opinion that there is sufficient leeway in the statutes to enable the court to save the taxpayer from
I do not join the majority opinion because I have difficulty following its discussion of “subject matter jurisdiction“, “competency of the court,” and “venue.”
The terms subject matter jurisdiction and competency are not self-defined. Although the majority opinion offers no clarification as to the meanings of both terms, the majority opinion apparently distinguishes between subject matter jurisdiction and competency. This distinction is traced to Mueller v. Brunn, 105 Wis. 2d 171, 313 N.W.2d 790 (1982), in which the court relied on sec. 7 of the First Restatement of Judgments (1942). A careful reading of sec. 7 and the comments shows, however, that the Restatement uses the terms subject matter jurisdiction and competency “more or less interchangeably“. Field and Kaplan, Civil Procedure 603 (2d ed. 1968). The Second Restatement of Judgments (vol. 1, p. 28) (1982) explains that it uses the term subject matter jurisdiction, rather than competency and rather than the two terms interchangeably, “simply because it [subject matter jurisdiction] is much more commonly used in American legal parlance than ‘competence’ or ‘competency.‘”1
I recognize that there appears to be a difference of opinion among the scholars as to the use of the terms competency, subject matter jurisdiction, and to add further to the confusion, territorial jurisdiction and state power.2 It is generally agreed, however, that it does
Notes
The majority opinion defines subject matter jurisdiction as relating “to the power of the court to entertain a particular type of action.” Supra, p. 230. Yet in Mueller, supra 105 Wis. 2d at 177, the court, adopting the terminology of the First Restatement of Judgments, says that if the state has not given a court the power to entertain the action, the court has no competency to render a valid judgment. Thus the majority opinion defines subject matter jurisdiction in the same way Mueller defined competency.
The majority opinion does not expressly define competency but appears to use the term competency interchangeably with venue. Supra, pp. 230, 233. The majority defines venue as relating “to which court of those having the power to entertain the action should render judgment in the matter“, supra, p. 230, and to “the [court‘s] competency to render a valid judgment.” Supra, p. 231.
Confusion arises because the First Restatement of Judgments, upon which Mueller and thus the majority opinion rely, does not generally classify a venue requirement as an issue of competency or subject matter jurisdiction.3 The First Restatement treats venue, ex-
The definitions of the terms competency, subject matter jurisdiction and venue are less important than a consideration of the differences in consequences that flow from the classification of the error. The black-letter Restatement law is that “a judgment is void if it is not rendered by a court with competency to render it.” Restatement of Judgments, sec. 7. See also 1 Restatement (Second) of Judgments, p. 28, and Mueller, supra 105 Wis. 2d at 177. A companion black-letter Restatement rule is that if venue is improper, the judgment is not void, but is invalid or erroneous and subject to reversal only on direct attack. Restatement of Judgments, sec. 7, Comment b, p. 43.
The majority opinion concludes that since venue is improper in this case, any judgment would be “invalid” (supra, p. 230) and the court lacks “the competency to render a valid judgment.” Supra, p. 231. Traditionally
I am also perplexed that the majority, after labeling the error one of venue, not jurisdiction, then turns to
In summary, although I find the analysis in the opinion of the court of appeals thoughtful and edifying, I agree with the result reached by the majority: The error in selecting the court in this case should be classified in such a way that the action need not be dismissed. But I believe that the discussion in the majority opinion relating to competency, subject matter jurisdiction and venue instead of clarifying the law adds further confusion to an already confusing area of the law.
I dissent from that part of the mandate that remands the remaining issues to the court of appeals for decision. As I have explained before, I believe that this court has the power to remand issues to the court of appeals, but in the interest of judicial economy, speedy resolution of appeals, reduced costs to the litigants, and finality of decisions, I would have this court decide the entire case on review. See Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26, 45-46, 330 N.W.2d 209 (1983).
ments sec. 7, Comments, pp. 41-44 (1942); Ehrenzweig and Louisell, Jurisdiction: Federal and State, р. 10-12, 162-64 (Nutshell Series 1973); Smit, The Terms Jurisdiction and Competence in Comparative Law, 10 Am. J. Comp. L. 164, 167 (1961).