Court Error – Service of Process

Listen to this article

WI Court of Appeals – District IV

Case Name: State of Wisconsin ex. Rel. Michael J. Vieth v. John Tate II

Case No.: 2018AP1525

Officials: Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.

Focus: Court Error – Service of Process

Michael J. Vieth filed a petition in the circuit court for writ of certiorari, along with a proposed writ, challenging action taken by Wisconsin Parole Chairperson Daniel J. Gabler. On the same date of Vieth’s filing, the court electronically signed the proposed writ, and the clerk electronically filed the signed writ (referred to in this opinion as the writ). The court subsequently granted Gabler’s motion to quash the writ because Vieth failed timely to personally serve Gabler with the writ. On appeal, Vieth argues that the court erred for a number of reasons, all related to Gabler’s attorney filing a notice of appearance and registering to use the circuit court electronic filing system (referred to as “registering as a user” in this opinion consistent with the applicable statute) after the writ had been filed. Briefly stated, Vieth argues that, when Gabler’s attorney filed the notice of appearance and registered as a user, Gabler consented to accept electronic service of the writ that had been filed, relieving Vieth of the obligation to personally serve Gabler with the writ. Vieth also argues that the electronic service was timely, thereby triggering Gabler’s obligation to comply with the writ.

We reject Vieth’s arguments because he identifies no statutory language providing that a respondent registering as a user relieves a petitioner from complying with personal service requirements for the writ in the circumstances present here. Given Vieth’s concession that, if Gabler’s attorney had not registered as a user, the writ was required to be personally served, and Vieth’s concession that he never personally served Gabler with the writ, we conclude that the circuit court properly determined that Vieth failed to serve Gabler with the writ. We also conclude that the court properly quashed the writ for untimely service, based on Vieth’s additional concession that the ninety-day service deadline relied on by the court applies. Accordingly, we affirm.

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.