Wisconsin Supreme Court Provides Little Guidance with Hyper-textual Ruling on Service of Process
Before filing suit against the state for the actions of a state employee, a plaintiff must notify the attorney general. Specifically, notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.” Wis. Stat. §893.82(5). Because the attorney general’s office in the capitol does not accept mail deliveries, literal compliance with this requirement is impossible. So, would-be plaintiffs must make a choice: either serve notice at the attorney general’s “office in the capitol” or do so “by certified mail.” According to Sorenson v. Batchelder, 2016 WI 34, one approach is legally sufficient while the other locks the plaintiff out of court.
Cheryl Sorenson suffered injuries when her car was rear-ended. The car that hit hers had been rear-ended by another car, driven by Richard Batchelder, a state employee who was driving as part of his job. Three months after the accident, Sorenson served notice of her claim on the attorney general at his office in the capitol. She arranged for personal service—that is, delivery by a process server, who obtains a signature confirming receipt by the recipient. No one disputes that the claim was served upon and processed by the attorney general’s office. But when Sorenson filed suit, the state sought to dismiss her action because she had not served notice “by certified mail.” After the circuit court denied the state’s motion, the court of appeals reversed, holding that Sorenson could not bring suit because she had not provided proper notice. The supreme court affirmed the court of appeals decision.
The majority opinion presents this as a straightforward application of Wis. Stat. §893.82’s plain language. Subsection (2m) forbids a lawsuit against a state employee “unless the claimant complies strictly with the requirements of this section.” Subsection (3) details the necessary contents of and timeframe for the written notice. And, as noted, subsection (5) requires service of the notice “upon the attorney general at his or her office in the capitol by certified mail.” The majority cites case law holding that the “requirements of §893.82 are not general guidelines” and that “a claimant ‘must adhere to each and every requirement in the statute.’” Sorenson, 2016 WI 34, ¶22 (quoting Kellner v. Christian, 197 Wis. 2d 183, 195 (1995)). Because “personal service is simply not service by certified mail,” the majority holds, “Sorenson did not strictly comply with §893.82(5)” and her case was properly dismissed. Id., ¶24.
The majority rejects several arguments Sorenson offered in her defense. First, Sorenson urged that personal service complied with the express purposes of the notice requirement, as set forth in Wis. Stat. §893.82(1)(a)-(b). Though Sorenson argues that those purposes—to provide the attorney general adequate time to investigate claims and an opportunity to settle claims prior to litigation—were fulfilled here, the majority is “not persuaded.” Id., ¶26. The majority does not rebut, and even concedes, that the attorney general received actual notice of Sorenson’s claim, but insists that “if [the court] were to allow substantial compliance rather than enforcing strict compliance as mandated by Wis. Stat. §893.82(2m), the certainty created by the requirement of certified mail would be undercut by costly case-by-case determinations.” Id., ¶31.
Second, Sorenson argued that personal service is even more effective than certified mail for ensuring notice and providing proof of receipt. As a result, Sorenson maintained, she should not be penalized for “stricter compliance” with the statutory requirements. In support of her position, Sorenson cited Patterson v. Board of Regents of the University of Wisconsin System, 103 Wis. 2d 358, 360-61 (Ct. App. 1981), which accepted registered mail as “stricter compliance” with a statute requiring certified mail. She also cited a federal case that interpreted Patterson as authorizing personal service as a form of “stricter compliance” with §893.82. See Weis v. Bd. of Regents of Univ. of Wis. Sys., 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011). But the majority opinion dismisses both of those cases as insufficient “to override the statute’s plain language when the legislature has so clearly chosen the mode of service necessary to satisfy Wis. Stat. §893.82(5).” Sorenson, 2016 WI 34, ¶38.
Third, Sorenson submitted that “dismissing her otherwise viable claim would constitute an absurd result since she fulfilled the purpose of Wis. Stat. §893.82 by effecting notice on the attorney general.” Id., ¶40. But the majority rejects this argument as well: “Simply because another mode of service seemingly would fulfill the[ statute’s] stated purposes does not give rise to an absurd result.” Id., ¶43. According to the majority, Sorenson should look to the legislature, not the courts, for relief. See id., ¶45.
What about the internal inconsistency of the statute, which directs would-be claimants to provide notice both to the attorney general’s “office in the capitol” and to do so “by certified mail,” when both conditions cannot be met? The majority does not address that problem. Only in the dissenting opinion does one learn that “[t]he attorney general no longer receives certified mail in his office in the Capitol” and that the court of appeals determined in an earlier case that “‘service by certified mail to the attorney general’s capitol office never occurs, and cannot occur, regardless of how claimant addresses a notice, or what physical location the claimant has in mind as to its destination.’” Id., ¶48 & n.3 (Abrahamson, J., dissenting) (quoting Hines v. Resnick, 2011 WI App 163, ¶14). Although the majority cites the Hines decision several times, see id., ¶¶24, 36, 40, 44, it does not address that literal compliance with the statute, as recognized in Hines, is impossible.
Because strict compliance with “each and every requirement,” Kellner, 197 Wis. 2d at 195, of §983.82(5) is impossible, the dissent argues that Sorenson should be allowed to litigate. In the dissent’s view, barring Sorenson’s claim for failure to use certified mail “would lead to the absurd result of dismissing an otherwise viable claim for a ‘harmless procedural bobble.’” Sorenson, 2016 WI 34, ¶54 (Abrahamson, J., dissenting) (quoting Reserve Hotels PTY Ltd. v. Mavrakis, 790 F.3d 738, 745 (7th Cir. 2015) (Posner, J., dissenting)).
Ultimately, however, Sorenson provides minimal guidance to the public or the bar. The majority does not acknowledge the impossibility of complying with every word of §893.92(5). The dissent offers no analysis of how, when facing a statute with which literal compliance is impossible, lawyers and litigants should proceed. Had the majority acknowledged the full range of facts or the dissent offered a broader legal analysis, Sorenson could have had an effect beyond the narrow confines of §893.82(5). As it is, Sorenson will simply increase the use of certified mail.