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Attorney’s e-filing registration doesn’t eliminate need for personal service under § 801.02(1)

State ex rel. Michael J. Vieth v. John Tate II, 2018AP1525, District 4, 2/13/20 (not recommended for publication); case activity (including briefs)

Lawyers handling petitions for a writ of certiorari to review administrative decisions (or any other extraordinary writs, for that matter) should be aware of this decision. It holds that, under the electronic filing system statutes, the administrative agency’s attorney registering as a user does not relieve a petition of the obligation to personally serve the agency with the document initiating the proceeding.

After Vieth filed a petition for a writ of certiorari to review a denial of parole, the circuit court issued a writ ordering the parole commission chair to submit the record of the commission’s proceedings in Vieth’s case to the court. (Daniel Gabler was the chair at the time Vieth filed his petition; it’s now John Tate II (¶1 n.1)). The circuit court granted Gabler’s motion to quash the writ after Vieth failed to personally serve Gabler with the writ within 90 days, as required by § 801.02(1). (¶¶3-10).

Vieth argues he didn’t need to personally serve the writ because Gabler’s lawyer registered to use the circuit court’s e-filing system a couple of weeks after the writ was issued and therefore Gabler (through counsel) had access to the e-filed copy of the document. Vieth relies on § 801.18(5)(d), and (6)(b), which say that documents (such as those needed to initiate a proceeding) that must be personally served “shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method,” and asserts the lawyer’s e-filing registration acted as a consent to electronic service of the writ. (¶¶15-23).

Not so, says the court of appeals:

¶24     First, …. 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….

¶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] 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)….

Vieth also argues that the defect in service is “hypertechnical[,]” “non-prejudicial and nonjurisdictional” and that Gabler waived his jurisdictional objection when he filed a notice of appearance. The court rejects these two claims, saying there’s no authority supporting the first claim and there is authority rebutting the second. (¶¶27-28).

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