BRIAN SPAETH, Complainant


ERD Case No. 9052611

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 7, 1993, dismissing the complainant's complaint of alleged discrimination. The last day on which to timely petition for commission review was therefore April 28, 1993. No petition for review was filed by that date. A petition for review on behalf of complainant was received by the commission on April 30, 1993.

In the absence of a timely filed petition for commission review, the commission is without authority to review the decision of the administrative law judge, and therefore issues the following:


That the complainant's petition for review is dismissed.

Dated and mailed May 21, 1993

/s/ pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


A petition for review must be received within 21 days from the date of the administrative law judge's decision. The last day on which the petition for review could have been timely filed in this case was April 28, 1993. It was not received, by any agency, until April 30, 1993.

Complainant's counsel suggests that in Lacy v. Briggs & Stratton (LIRC, July 9, 1991), LIRC recognized that where a petition is mailed within such time as to warrant a reasonable belief that it will be received on time, the petition can be deemed timely. This is not correct. Lacy, while it recognized that the commission had on a few occasions issued decisions which seemed to so hold, conspicuously avoided endorsing those holdings. Rather, it held directly and unmistakably, that the requirement of timely filing of a petition for commission review was, in effect, jurisdictional, and that there was no "good cause"/"beyond control" exception which would allow it to assume jurisdiction over an untimely petition for review on some theory that the lateness of the petition had been caused by a factor beyond the control of the petitioner or that the petitioner showed good cause for the failure to file the petition on a timely basis.

In any event, even under application of such a standard -- the applicability of which the commission discusses only for the sake of argument -- the petition in this case could still not be accepted. The circumstances by which the petition was filed late, were entirely within the control of complainant's counsel and her office. The errors which are conceded by complainant's counsel do not, in the commission's view, constitute excusable neglect. Furthermore, the mailing of the petition for review from Milwaukee to a Madison address on the day before the last day on which timely filing could be made would not have provided complainant's counsel with a reasonable basis to assume that it would be received on the following day. The alleged failure to use the Badger Bus as a carrier service was, at most, simply an error on the part of t:he office of complainant's counsel.


NOTE: Because the petition is being dismissed as untimely, the Commission has not issued a briefing schedule on the merits of the case.

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