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Currier v. Wisconsin Dep't of Revenue12/14/2005
view with the Commission before the Commission reviews the case and renders its decision. Pursuant to WIS. STAT.§ 73.01(5), a party timely files such a petition for review if it is postmarked before midnight of the last day for filing. On the other hand, a party aggrieved by a decision of the Commission itself files a petition for rehearing after the Commission has already reviewed the case and rendered its decision. The timeliness of such a petition for rehearing is governed by WIS. STAT.§ 227.49(1). See WIS. STAT.§ 73.015(2) (any adverse determination of the Commission is subject to review in the manner provided in WIS. STAT.ch. 227). Because Currier's challenge pertains to a petition for rehearing of a Commission decision, we turn to § 227.49(1).
WISCONSIN STAT.§ 227.49(1), entitled "Petitions for rehearing in contested cases," states in part:
A petition for rehearing shall not be a prerequisite for appeal or review. Any person aggrieved by a final order may, within 20 days after service of the order, file a written petition for rehearing which shall specify in detail the grounds for the relief sought and supporting authorities. (Emphasis added.)
Section 227.49(1) expressly requires a person petitioning for rehearing from an agency decision to "file" the petition within twenty days of service of the agency's decision.
Currier appears to argue that mailing, in and of itself, constitutes filing. WISCONSIN STAT.ch. 227 does not define the term "file" and we are not aware of any published Wisconsin case law specifically establishing what constitutes filing pursuant to WIS. STAT.§ 227.49(1).
However, cases have repeatedly recognized that " o construe or define 'mailing' as 'filing' is to ignore the plain meaning of the word. Mailing merely initiates the process by which an article in the due course of the post will be delivered." E.M. Boerke, Inc. v. Williams, 28 Wis. 2d 627, 635, 137 N.W.2d 489 (1965); Hoffman,256 Wis. 2d 678, . Filing, as it is defined in the dictionary, contemplates delivery to the proper authority. See E.M. Boerke, 28 Wis. 2d at 635 (dictionary definition of to "file" entails delivery to the proper person); Hoffman, 256 Wis. 2d 678, (stating that the recognized dictionary definition of to "file" is:
o deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping on file or among the records of his office ... to place (as a paper or instrument) on file among the legal or official records of an office esp. by formally receiving, endorsing, and entering. (Citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY(unabr. 1993).)
Wisconsin courts have applied this distinction between mailing and filing in a variety of contexts. For example, in the context of appellate procedure, our supreme court has concluded that absent specific statutory language to the contrary filing is accomplished when the petition is physically handed to and accepted by the clerk of courts. See Boston Old Colony Ins. Co. v. International Rectifier Corp., 91 Wis. 2d 813, 822, 284 N.W.2d 93 (1979) (holding that "filing, under [WIS. STAT.] sec. 809.10, means physical delivery of the notice of appeal to and receipt by the clerk of the trial court.... he notice of appeal ... shall be considered filed as of the date that the notice of appeal is actually received by the clerk."); First Wis. Nat'l Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 364-65, 274 N.W.2d 704 (1979) (determining that filing of a petition for appeal to the Wisconsin Supreme Court under WIS. STAT.§ 808.10 occurs when it is received by the clerk of courts' office). This court has held that
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