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Service, Attorney General; Statutory Construction: Surplusage Rule

Melissa M. Hines v. Daniel K. Resnick, M.D., 2011 WI App 163 (recommended for publication); case activity

The requirement in  § 893.82(5)  that a notice of claim against a state employee must be “served upon the attorney general at his or her office in the capitol by certified mail” is satisfied “by certified mail addressed to the attorney general at his or her capitol office, Main Street office, or post office box, or any combination of those three addresses, assuming that the notice otherwise complies with § 893.82(5),” ¶3.

Not terribly pertinent to SPD practice, to be sure, but you may want to relate the holding to § 806.04(11) (“If a statute … is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.”) The P.O. Box, incidentally, is 7857, Madison 53702-7857, ¶20 n. 5, though the 5307 zip seems to be equally acceptable, id. and text at ¶20.

What about the specific language in § 893.82(5) (“served … in the capitol”) and the idea that statutes shouldn’t be construed to render any text surplusage?

¶14      However, the undisputed facts in this case establish that service by certified mail to the attorney general’s capitol office never occurs, and cannot occur, regardless of how a claimant addresses a notice, or what physical location the claimant has in mind as its destination. And, obviously, a claimant cannot comply with the statute by hand delivering a notice to the attorney general’s capitol office because such service would not comply with the certified mail requirement.  Thus, the best any claimant can achieve is delivery of the certified mail notice to the attorney general’s Main Street office.

The surplusage rule of statutory construction contains a qualifier: if possible, every word of statutory text should be given effect. Here, service in the capitol isn’t possible, and it would be unreasonable to give effect to statutory phrasing simply incapable of effectuation, ¶31.

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