2004AP2130 Albrechtsen v. Wisconsin Department of Workforce Development and Board of Regents of the University of Wisconsin System

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“The Commission and the University contend that the plain meaning of the statutory language emphasized above can lead to no other conclusion but that the Commission lost its subject matter jurisdiction over Albrechtsen’s whistleblower complaint once he filed an action in the federal district court that included allegations of state whistleblower violations. We agree….

“Finally, and perhaps most important, even if the Commission had expressly concluded in November 2000 that it had continuing jurisdiction over Albrechtsen’s complaint despite his commencement of a court action alleging the same State law violations, when the Commission recognized in July 2003 that Albrechtsen’s court action had caused it to lose jurisdiction, it had no choice but to dismiss the administrative proceeding. The statute could not be plainer as to the effect of Albrechtsen’s filing his federal action on October 5, 2000: ‘Upon commencement of such an action in a court of record, the [Commission] has no jurisdiction to process a complaint filed under s. 230.85 except to dismiss the complaint….’ Thus, the Commission lost jurisdiction as of October 5, 2000, and it thereafter lacked the power to take any actions in the matter ‘except to dismiss the complaint.’ This means that the Commission’s order in November 2000, holding the administrative proceeding ‘in abeyance,’ was of no effect because the Commission, having lost jurisdiction, lacked the authority in November 2000 to do anything other than dismiss Albrechtsen’s complaint.”

Affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Vergeront, J. “I do not agree with the majority that the meaning of Wis. Stat. § 230.88(2)(c)[6] is plain when applied to the facts of this case. I agree that there is no ambiguity if one focuses on the time when Albrechtsen filed the federal court action: the language plainly required the Commission to dismiss Albrechtsen’s complaint. However, due to the parties’, and perhaps the Commission’s, misunderstanding of this requirement, that is not what occurred. Thus, at the time the Commission first actually addressed the meaning of § 230.88(2)(c), there was no Wis. Stat. § 230.83(1) claim pending in the federal court action, it had not been adjudicated in that action, and it was clearly not going to be adjudicated in that action. In my view, the proper way to frame the statutory construction issue presented on the facts of this case is to ask: if the Commission had dismissed Albrechtsen’s claim when it should have, would the statute have permitted the Commission to vacate that dismissal order after the dismissal in the federal action? … The Board of Regents did not argue before the Commission that there would have been unfairness to it if the Commission had adjudicated Albrechtsen’s claim at that time; and I see nothing in the record that would provide a reasonable basis for the Commission to decide not to adjudicate Albrechtsen’s claim, given that, in my view, it has the authority to do so. Therefore, I would reverse the circuit court’s order affirming the Commission’s dismissal order and direct the circuit court to remand to the Commission for an adjudication of Albrechtsen’s claim. Accordingly, I respectfully dissent.

Dist IV, Dane County, Bartell, J., Deininger, J.

Attorneys:

For Appellant: David E. Lasker, Madison; Kirt Posthuma, Madison

For Respondent: David C. Rice, Madison; Richard B. Moriarty, Madison