STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


In the Matter of Notice of Intent to Certify Debt of

JULIANNA WOLTER, Debtor

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99-DOR-02


AMENDED COMMISSION DECISION

Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission hereby amends its decision in this matter dated July 15, 1999 as follows:

Paragraph two of the commission's Findings of Fact and Conclusions of Law is deleted, and the following is substituted therefor:

The statutory authority for the department's certification of debt proceedings is Wis. Stat. § 71.93, which authorizes the department to certify debts to the Wisconsin Department of Revenue for offset against tax refunds due the debtor. Wisconsin statute § 71.93(1)(a)1 defines a debt to include an amount owed to a state agency that has been reduced to a judgment. No other § 71.93(1)(a) definitions of debt are applicable. To proceed under this statutory section, therefore, the department must first reduce the debt in question to judgment. It is for this reason that the department, before proceeding with the certification of debt to the Department of Revenue, must first file a warrant in the circuit court of the county of the employe's residence. Pursuant to Wis. Stat. § 108.22(2)(a)2, the clerk of circuit court then enters the warrant into the court's judgment and lien docket. By Wis. Stat. § 108.22(2)(a)3, a warrant entered into the judgment and lien docket is considered a final judgment constituting a perfected lien. In other words, the matter becomes a judgment only upon the clerk of circuit court's entering the matter into the court's judgment and lien docket, and the clerk of circuit court does so only upon presentment by the Department of Workforce Development of a warrant to the clerk of circuit court.

Dated and mailed November 24, 1999
wolteju2 : 105 : 6  BR 320

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The Department of Workforce Development petitioned the commission for reconsideration of its July 15, 1999 decision. The commission has corrected its analysis of the docketing procedure, but in other respects the commission believes its original decision remains correct.

The dissent argues that Wis. Stat. § 801.02(1) is the applicable statute governing the commencement of an action. There is no question but that, if that statute applies, the filing of a warrant in circuit court is not an action. That provision only indicates how to bring an action, though, and does not necessarily define what an action is. Wisconsin statute § 893.03 does define an action, and that definition includes the presentation of any claim, in cases where by law such presentment is required, to the circuit court. The dissent also argues that the circuit court's docketing of the department's warrant is purely a ministerial function. First, that it is so does not take it out of the Wis. Stat. § 893.03 definition of an action, since the department must present its warrant to the circuit court in order for the circuit court to reduce it to judgment. Second, that it is a ministerial function underscores the need for the oversight upon the department's issuance of such warrants as the Wis. Stat. § 893.87 statute of limitations represents.

 

Pamela I. Anderson, Commissioner (Dissenting):

On reconsideration of this case, I am unable to agree with the result reached by the majority herein and I dissent. Since 1981, my first year on the commission, we have always indicated that there are only two defenses to certification proceedings. Either mistaken identity or prior repayment have been those defenses. While I signed the original decision in this case, we agreed that we would look at the case again if the Department of Workforce Development asked for reconsideration. That has now occurred.

While I believed we might have benefited from a more thorough briefing in this case, that has not happened. This particular case is moot because the employe has indicated that she is on social security disability and has not filed tax returns for over ten years. She indicated that she has severe diabetes and has lost the vision in one of her eyes because of this condition. She does not see any possible improvement in her condition. Under these circumstances, the employe would not have to repay the overpayment because she will not have an income tax refund.

The major reason for my dissent is that I do believe that Wis. Stat. § 801.02(1), deals with the commencement of an action and is the applicable section in this case. At the time the employe's case was decided and she did not petition to the Labor and Industry Review Commission. Her decision became final at that time except she had defenses of mistaken identity or prior repayment. The employe could have had her case considered by the Labor and Industry Review Commission and if she did not like that result she had the opportunity to appeal to circuit court. At the time of an appeal to circuit court the employe would have needed to file a summons and complaint naming the labor and industry review commission along with the employer as defendents and filed with the court, and provided service of an authenticated copy of the summons under Wis. Stat. § 102.23. Because the administrative law judge's decision became final without further appeal, it is also final on the overpayment.

While the employe has argued some of the money may have been repaid by deducting the money from her AFDC payments but she does not keep records that long so she can not prove it. I do not believe the department had the authority to recoup benefits as offsets against AFDC. The employe also argues that she should not have to repay the overpayment based on Wis. Stat. § 108.22(8) or (8m). While this section of the statute did not exist at the time of her case, there is nothing in the record to suggest that there was department error in finding that she had an overpayment even if the section applied.

I believe that the majority is wrong in finding that that there is a commencement of an action under Wis. Stat. § 893.03 when the department files a lien and the circuit court dockets the warrant. This is purely a ministerial function. Wisconsin statute § 108.22(2)(a)2 provides "The clerk of circuit court shall enter in the judgment and lien docket the name of the employing unit mentioned in the warrant and the amount of the contributions, interest, costs and other fees for which the warrant is issued and the date when such copy is entered."

Rice v. Ashland, 108 Wis. 189, 191, 84 N.W. 189 (1900) states "The mere fact that an action, by force of the statute, is deemed commenced for the purposes of the statutes of limitations by the presentation of a claim to a county board for allowance, does not render such an event generally the commencement of an action in the judicial sense." I believe the court would find that a commencement of action in the judicial sense to be the summons and complaint which does not need to be filed in this case because it is only a recording of the debt. The employe was not disadvantaged because she was aware of the debt from the beginning. In this case, it is moot because she will never pay the debt.

For all these reasons, I disagree with the majority and would not find that a statute of limitations has been shown to exist in this circumstance. I would affirm the administrative law judge's decision

______________________________________
Pamela I. Anderson, Commissioner


[Original commission decision of July 15, 1999]

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]