Michael J. Vieth v. John Tate, II

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 13, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1525 Cir. Ct. No. 2018CV39

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. MICHAEL J. VIETH,

PETITIONER-APPELLANT,

V.

JOHN TATE II,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Monroe County:
MARK L. GOODMAN, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

¶1 KLOPPENBURG, J. Michael J. Vieth filed a petition in the circuit
court for writ of certiorari, along with a proposed writ, challenging action taken by
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Wisconsin Parole Chairperson Daniel J. Gabler.1 On the same date of Vieth’s
filing, the court electronically signed the proposed writ, and the clerk
electronically filed the signed writ (referred to in this opinion as the writ). The
court subsequently granted Gabler’s motion to quash the writ because Vieth failed
timely to personally serve Gabler with the writ. On appeal, Vieth argues that the
court erred for a number of reasons, all related to Gabler’s attorney filing a notice
of appearance and registering to use the circuit court electronic filing system
(referred to as “registering as a user” in this opinion consistent with the applicable
statute) after the writ had been filed. Briefly stated, Vieth argues that, when
Gabler’s attorney filed the notice of appearance and registered as a user, Gabler
consented to accept electronic service of the writ that had been filed, relieving
Vieth of the obligation to personally serve Gabler with the writ. Vieth also argues
that the electronic service was timely, thereby triggering Gabler’s obligation to
comply with the writ.

¶2 We reject Vieth’s arguments because he identifies no statutory
language providing that a respondent registering as a user relieves a petitioner
from complying with personal service requirements for the writ in the
circumstances present here. Given Vieth’s concession that, if Gabler’s attorney
had not registered as a user, the writ was required to be personally served, and
Vieth’s concession that he never personally served Gabler with the writ, we

1
More accurately,Vieth filed an amended petition to correct a misspelling in the caption
of the original petition. We follow the parties’ lead and refer to the amended petition as the
petition.

In the time since Vieth filed this action and appeal, Gabler is no longer the Wisconsin
Parole Commission Chairperson. The caption has been amended to reflect the current
Chairperson, John Tate II.

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conclude that the circuit court properly determined that Vieth failed to serve
Gabler with the writ. We also conclude that the court properly quashed the writ
for untimely service, based on Vieth’s additional concession that the ninety-day
service deadline relied on by the court applies. Accordingly, we affirm.

BACKGROUND

¶3 The following facts are not disputed on appeal. On February 13,
2018, Vieth, an individual incarcerated in a Wisconsin correctional institution,
filed a petition for writ of certiorari challenging action taken by Gabler regarding
Vieth’s parole. Vieth also filed a proposed writ of certiorari ordering Gabler to
return to the court within thirty days after service of the writ upon Gabler the
certified record relating to Vieth’s parole proceedings.

¶4 Also on February 13, Gabler was personally served with paper
copies of Vieth’s petition for writ of certiorari and Vieth’s proposed, unsigned,
order for writ of certiorari. Gabler was also served with a paper copy of an
“Electronic Filing Notice” electronically signed by the Monroe County Clerk of
Circuit Court, informing Gabler that “[c]ase number 2018CV000039 was
electronically filed,” that “[p]arties who register as [users] can file, receive and
view documents online through the court electronic filing website,” and that
Gabler may “register as [a user]” by following the instructions in the notice.

¶5 Still on February 13, the circuit court electronically signed the writ
ordering Gabler “to certify and return to the court within thirty (30) days after
service of this writ upon you a correct transcript of the record and proceedings in
the Parole Commission proceedings, together with all papers, documents, and
docket entries involved or considered by you in the proceedings.”

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¶6 Also on February 13, the writ was filed in the circuit court’s
electronic filing system.

¶7 On February 28, 2018, Gabler’s attorney signed and electronically
filed a notice of appearance in the case. The notice stated that the appearance was
“subject to and without waiving any objections to jurisdiction or to the Court’s
competency to proceed.” The notice also requested that “service of all pleadings
and other papers” be made upon Gabler’s attorney.

¶8 Also on February 28, 2018, after Gabler’s attorney electronically
filed the notice of appearance, Vieth’s attorney received an automatically
generated email from the circuit court electronic filing system. The email notified
Vieth’s attorney that Gabler’s attorney “has registered as an electronic notice party
and has agreed to file any documents and receive all communications from the
court for this case electronically. You will no longer need to provide traditional
paper documents to this party…. Print and save this page for your records.”2

¶9 On May 22, 2018, Vieth filed a proposed order to show cause for
contempt for Gabler’s failure to comply with the writ. On May 23, 2018, the
circuit court ordered Gabler to show cause why he should not be held in contempt
based on his failure to provide the certified record.

2
We note that the term “electronic notice party” does not appear in WIS. STAT. §801.18,
the statute that governs the electronic filing of documents in circuit court. See § 801.18(2)(a)
(2017-18). However, it appears that the email quoted above is the “notice of activity” referenced
in §801.18(6)(a), which provides that “[t]he electronic filing system shall generate a notice of
activity to the other users in the case when documents other than initiating documents are filed.”

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶10 On May 24, 2018, Gabler filed a motion to quash the writ of
certiorari because Vieth had failed to personally serve Gabler with the writ within
ninety days as required by WIS. STAT. § 801.02(1). The circuit court granted
Gabler’s motion because Vieth had failed to personally serve Gabler with the writ
within ninety days.

¶11 Vieth appeals.

DISCUSSION

¶12 The gravamen of Vieth’s argument is that he was not required to
personally serve Gabler with the writ because Gabler consented to accept
electronic service of the writ when Gabler’s attorney filed the notice of appearance
and registered as a user of the circuit court electronic filing system. We reject this
argument because it has no support in the plain language of the statutes, and Vieth
concedes that he was required to personally serve Gabler with the writ if Gabler’s
attorney had not registered as a user. Because we reject Vieth’s argument that
Gabler was electronically served with the writ, and given Vieth’s concession that
Gabler was never personally served with the writ, we conclude that the circuit
court correctly ruled that Vieth never served Gabler with the writ. Additionally,
because Vieth concedes that service was required within ninety days of the filing
of the writ, we conclude that the court also correctly quashed the petition for
Vieth’s failure to timely serve Gabler with the writ.

¶13 We first state the standard of review. We next explain why we
conclude that Vieth was still required to personally serve Gabler with the writ
even though Gabler’s attorney registered as a user of the electronic filing system,
and why we reject Vieth’s arguments to the contrary. Finally, we explain that,
given Vieth’s concessions that he never personally served Gabler with the writ and

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that service was required within ninety days of the writ’s filing, the circuit court
properly quashed the writ for failure to timely serve.

I. Standard of Review.

¶14 “A motion to quash a writ of certiorari is akin to a motion to dismiss.
Both … test the legal sufficiency of the facts alleged in the complaint. We review
such motions de novo.” State ex rel. Myers v. Swenson, 2004 WI App 224, ¶6,
277 Wis. 2d 749, 691 N.W.2d 357 (internal citations omitted). Vieth’s arguments
also raise questions of statutory interpretation, which we review de novo. State v.
Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188. We give
statutory language its common, ordinary, and accepted meaning. State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. We also interpret statutory language “in the context in which it is
used; not in isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46. Where multiple statutes are at issue, we seek to
harmonize the statutes “through a reasonable construction that gives effect to all
provisions.” State v. Reyes Fuerte, 2017 WI 104, ¶29, 378 Wis. 2d 504, 904
N.W.2d 773.

II. A Writ of Certiorari Filed Before the Respondent Registers as a User Must Be
Personally Served Unless the Respondent Consents in Writing to Electronic
Service of the Writ.

¶15 As stated, Vieth concedes that he was required to personally serve
the writ on Gabler if Gabler’s attorney had not registered as a user in this case.
Accordingly, the first question is whether that personal service requirement
remained in place when Gabler’s attorney registered as a user. Before we review

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the electronic filing statutes to answer that question, we first summarize the
statutory procedure for filing a certiorari action.

¶16 As this court has stated,

Section 801.02(5), Stats., specifies three procedures to
commence a certiorari action. First, the action “may be
commenced under sub. (1),” which permits use of a
summons and a complaint. Second, the action “may be
commenced … by service of an appropriate original writ
[on the defendant named in the writ].” Third, the action
“may be commenced … by filing a complaint …, if service
of … the complaint and of an order … is made upon the
defendant.”

Nickel River Invs. v. City of La Crosse Bd. of Review, 156 Wis. 2d 429, 431-432,
457 N.W.2d 333 (Ct. App. 1990) (internal footnote omitted; ellipses in original).
The parties do not dispute that Vieth was acting pursuant to the second procedure,
service of a writ that was required to be personally served on Gabler.

¶17 We now review the applicable subparts of the circuit court electronic
filing statute, set forth in WIS. STAT. § 801.18. “‘Electronic filing system’ means
an internet-accessible system established by the director for the purpose of filing
documents with a circuit court, automatically integrating them into the court case
management system, and electronically serving them on the parties.”
§ 801.18(1)(e). A “user” means “an individual who has registered to use the
electronic filing system.” § 801.18(1)(n). Licensed Wisconsin attorneys must
register to use the electronic filing system prior to filing documents in the circuit
court. § 801.18(3)(a).

¶18 When a clerk of court files a document submitted by a user in a
particular case, “the electronic filing system shall issue a confirmation to serve as
proof of filing. When personal service is not required, the confirmation shall also

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serve as proof of service on the other users in the case.” WIS. STAT.
§ 801.18(4)(c).

¶19 To commence an action, an attorney who has registered with the
electronic filing system shall file an “initiating document” in the appropriate
county. WIS. STAT. § 801.18(5)(a). An “‘[i]nitiating document’ means a
summons and complaint, petition, application, citation, criminal complaint, or any
other document filed to commence a court action.” § 801.18(1)(j). “Initiating
documents shall be served by traditional methods unless the responding party has
consented in writing to accept electronic service or service by some other
method.” § 801.18(5)(d). “‘Traditional methods’ means those methods of filing
and serving documents, other than electronic filing, provided under statutes and
local rules.” § 801.18(1)(m).3

¶20 An attorney who has registered with the electronic filing system and
who represents a responding party “shall register as a user on the particular case.
The electronic filing system will note the new user on the case.” WIS. STAT.
§ 801.18(5)(e). The system will also generate a notice of activity to the other
users in the cases when documents

other than initiating documents are filed. Users shall access
filed documents through the electronic filing system. For
documents that do not require personal service, the notice
of activity is valid and effective service on the other users
and shall have the same effect as traditional service of a
paper document, except as provided in par. (b).

3
The parties confine their discussion of “traditional methods” to personal service, and
we do the same.

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§ 801.18(6)(a). Under § 801.18(6)(b), “[i]f a document other than an initiating
document requires personal service, it shall be served by traditional methods
unless the responding party has consented in writing to accept electronic service or
service by some other method.”

¶21 We now address Vieth’s arguments as to how these statutes apply to
this case.

¶22 As a preliminary matter, we note that Vieth does not contest that the
electronic confirmation from the circuit court that was required to be issued under
WIS. STAT. § 801.18(4)(c) when the writ was filed did not serve as proof of
personal service on Gabler. This is true because, at the time the writ was filed,
Gabler’s attorney had not registered as a user in the case, and so the writ could not
have been served on Gabler through the electronic filing system. See
§ 801.18(4)(c) (“When personal service is not required, the confirmation shall also
serve as proof of service on the other users in the case.” (emphasis added)).

¶23 However, Vieth contends that he was relieved of the obligation to
personally serve Gabler with the writ when Gabler’s attorney registered as a user
under WIS. STAT. § 801.18(5)(e). More specifically, Vieth contends that Gabler’s
attorney registering as a user “changed” Vieth’s personal service obligation and
constituted acceptance of electronic service of the writ. We now explain why we
reject Vieth’s five arguments in support of his position, taking each argument as
he presents it.

¶24 First, Vieth argues that Gabler’s attorney registering as a user
waived the requirement that the writ be personally served. Vieth cites the
language in WIS. STAT. §§ 801.18(5)(d) and (6)(b) providing that an initiating or a
subsequent document that requires personal service must be “served by traditional

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methods unless the responding party has consented in writing to accept electronic
service.”4 However, Vieth points to no language in either of these statutory
provisions, and no other authority, indicating that a respondent’s registration as a
user by itself constitutes the express “consent[] in writing to accept electronic
service” of a specific document, such as the writ, that must otherwise be
personally served. Similarly, Vieth points to no language in either of these
statutory provisions from which it can be reasonably inferred that when a
responding party registers as a user the party also agrees to electronic service of
documents filed before the party registered, without express written consent to that
effect.5

¶25 Second, Vieth argues that the automatically generated email that he
received when Gabler’s attorney registered as a user in the case “directed [Vieth]

4
The parties dispute whether the writ is an “initiating document” or a “subsequent
document.” Summarizing, the State argues that the writ is an initiating document based on the
language in WIS. STAT. § 801.02(5) stating that a certiorari action “may be commenced by service
of an appropriate original writ.” Vieth argues that the petition is the initiating document based on
language in WIS. STAT. § 893.735(3) (“In this section, an action seeking a remedy available by
certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari
with the court.”) and in State ex rel. Shimkus v. Sondalle, 2000 WI App 238, ¶2, 239 Wis. 2d
327, 620 N.W.2d 409 (“an action is ‘commenced’ within the meaning of the law at the time that
the prisoner files a [certiorari] petition … with a court” (internal quotation omitted and alteration
in original)). We need not, and do not, resolve this dispute because, as we have explained, the
pertinent language in the electronic filing system statute as to service of both initiating and
subsequent documents is the same and we resolve this appeal based on that language.
5
Vieth asserts that “there is no way to electronically serve a document that is already in
the electronic record prior to the party opting in to the case.” However, rather than Vieth being
placed in what he calls “an unworkable situation,” Vieth was always able to personally serve the
writ by asking the circuit court for an original writ and serving that original in the same manner
that he served the petition. See State ex rel. DNR v. Walworth Cty. Bd. of Adjustment, 170
Wis. 2d 406, 419, 489 N.W.2d 631 (Ct. App. 1992) (“[h]aving chosen to use a writ, the
[petitioner] was obliged to obtain a writ from the court and to serve the original writ upon the
[respondent]”). Moreover, Vieth could have asked Gabler’s attorney if Gabler would consent in
writing to accept electronic service of the writ.

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not to serve traditional paper documents on Mr. Gabler,” and that, consequently,
Gabler was estopped from asserting that he needed to be personally served with
the writ. We disagree. The email noted that Gabler “has registered as an
electronic notice party and has agreed to file any documents and receive all
communications from the court for this case electronically. You will no longer
need to provide traditional paper documents to this party.” (Emphasis added.) The
email did not direct Vieth not to serve documents that were both (1) required to be
served personally and (2) filed before Gabler’s attorney registered. That is, the
email did not override the statutory language in WIS. STAT. §§ 801.18(5)(d) and
(6)(b).

¶26 Third, Vieth argues that, because Gabler was “aware of” and had the
ability to electronically access the writ in the electronic case file, the writ was
“electronically served” on Gabler. However, a responding party’s knowledge of a
document that must be personally served does not substitute for the personal
service requirement. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶25, 339
Wis. 2d 493, 811 N.W.2d 756 (“a defendant’s actual notice of an action is not
alone enough to confer personal jurisdiction upon the court” in the absence of
proper service); see also Danielson v. Brody Seating Co., 71 Wis. 2d 424, 430,
238 N.W. 2d 531 (1976) (same).

¶27 Fourth, Vieth argues that the defect in service that Gabler complains
of is “of a hypertechnical nature” that is “non-prejudicial and nonjurisdictional.”
However, he fails to cite any legal authority supporting the proposition that failing
to serve the writ is a technical error, and, therefore, we do not consider this
argument further. See Young v. Young, 124 Wis. 2d 306, 312, 369 N.W.2d 178
(Ct. App. 1985) (stating that we will “refuse to consider an argument without legal
authority specifically supporting the relevant propositions”).

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¶28 Fifth, Vieth argues that Gabler waived his jurisdictional objections
(such as failure to properly and timely serve) when he filed the Notice of
Appearance. Gabler responds that, under the authority of binding precedent and
WIS. STAT. § 802.06, Gabler’s attorney’s notice of appearance and motion to
quash the writ of certiorari preserved his jurisdictional defense and permitted him
to take other actions, including appearing at hearings and responding to the order
to show cause, without waiving the defense. Vieth does not address Gabler’s
arguments in his reply brief. Accordingly, we deem Vieth to have conceded that
Gabler’s arguments on this point are correct. See Charolais Breeding Ranches,
Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(“Respondents on appeal cannot complain if propositions of appellants are taken
as confessed which they do not undertake to refute.” (quoted source omitted))

¶29 In sum, we conclude that the plain language of the applicable
electronic filing system statutes does not support Vieth’s argument that Gabler’s
attorney registering as a user relieved Vieth of his obligation to personally serve
Gabler with the writ, where the writ was filed before the registration and Gabler
did not consent in writing to electronic service of the writ.

III. Vieth Concedes that He Was Subject to a Ninety-day Deadline for
Service of the Writ.

¶30 As stated, Vieth does not dispute that he never personally served
Gabler with the writ and, as we have concluded, Vieth also fails to show that any
electronic service of the writ on Gabler took place. Therefore, the second question
on appeal is whether Vieth was required to serve the writ within the ninety-day
deadline applied by the circuit court.

¶31 The State’s entire argument on this issue is as follows:

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The general statute applicable to certiorari proceedings
contains a 90-day deadline to serve a summons and
complaint. WIS. STAT. § 801.02(1). When proceeding by
writ, WIS. STAT. § 801.02(5) contains no service deadline
of its own; rather, it references sub. (1). Thus, a reading of
WIS. STAT. § 801.02(1) and (5) reveals that an original,
signed writ should be served within 90 days after the court
issues the writ. Failure to serve the respondent within 90
days is fatal to the action because the court lacks personal
jurisdiction over the respondent. Hagen, 262 Wis. 2d 113,
¶13, see also WIS. STAT. § 801.15(2) (prohibiting courts
from enlarging the 90-day time period in § 801.02(1)).

¶32 Vieth concedes in his appellant’s brief that the ninety-day limit
referenced by the State and relied on by the circuit court applies to service of the
writ. Accordingly, based on Vieth’s concession and our conclusion that Vieth
failed to personally serve Gabler with the writ within ninety days of the writ’s
filing, we also conclude that the court properly quashed the writ based on Vieth’s
failure to timely serve the writ.

CONCLUSION

¶33 For all of the reasons stated above, we affirm.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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