Karen Baker v. Department of Health Services, 2012 WI App 72 (recommended for publication); case activity
Service, by Mail – Generally
¶3 n. 2:
… In the absence of a statutory provision, the rule in Wisconsin is that service of notice by mail is not effective until the party receives it. Hotel Hay Corp. v. Milner Hotels, 255 Wis. 482, 486, 39 N.W.2d 363 (1949) (“In the absence of custom, statute, estoppel, or express contractual stipulation, when a notice, affecting a right, is sought to be served by mail, the service is not effected, until the notice comes into the hands of the one to be served, and he acquires knowledge of the contents.”) (Citation omitted). As DHS regulations do not define “the date of notice,” the common law rule governs and the counting period did not begin to run until Baker received her notice on Saturday, September 4. Baker’s request for a hearing was thus due on September 14, in which case her request was still tardy by two days. DHS and the division of hearings and appeals should be mindful of this rule in the future.
Deadline, Administrative Proceeding – Computation
The rule contained in § 801.15(1)(b), that when a deadline is less than 11 days weekends and holidays are excluded, applies only to judicial proceedings hence doesn’t apply to an appeal in, and to, an administrative body.
¶7 The legislature has delegated to DHS the authority to issue and revoke licenses for people operating adult family homes. SeeWis. Stat. § 50.02(2)(am)2.; see also Wis. Admin. Code § DHS 88.01(1) (2011). DHS regulations also allow any person whose license is being revoked to request a hearing. Wis. Admin. Code § DHS 88.03(7)(a). The request “shall be in writing, shall be filed with the department of administration’s division of hearings and appeals and shall be sent to that office so that it is received there within 10 days after the date of notice.” Sec. DHS 88.03(7)(b). Baker argues that the relevant statute for counting purposes is Wis. Stat. § 801.15(1)(b) rather than Wis. Stat. § 990.001(4)(a). We agree with the ALJ that § 801.15(1)(b) does not apply, as Baker’s appeal to the division of hearings and appeals is governed by Wis. Stat. §§ 227.42 and 227.43, rather than chapters 801 to 847. Section 801.15(1)(b) expressly provides that it only applies to periods of time prescribed or allowed by chapters 801 to 847. Section 990.001(4)(a) is therefore the appropriate statute for counting purposes.
Gangler v. Wisconsin Electric Power Co., 110 Wis. 2d 649, 329 N.W.2d 186 (1983), and State ex rel. Town of Delavan v. Circuit Court for Walworth County, 167 Wis. 2d 719, 482 N.W.2d 899 (1992), distinguished: Gangler applied § 801.15(1)(b) to an appeal of an administrative body to a circuit court, not an administrative agency, ¶10; Town of Delavan held merely that a civil rule of procedure (substitution of judge) didn’t conflict with any provision in ch. 227 and therefore applied to an administrative proceeding, ¶¶11-12.
