Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Cedric Albert Holze vs. LIRC and DWD, No. 03-2362 (Wis. Ct. App., Dist. 1, October 12, 2004) (unpublished)

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: PC 751.2

Holze was discharged by Security Link in April 2001. He filed an initial claim for unemployment insurance benefits on July 9, 2002. He asked to backdate his claim to the week ending May 5, 2001. Benefits were allowed beginning for the period of the week ending July 6, 2002, but the request to backdate was denied because his failure to file his claim before July 9, 2002, was not for an exceptional circumstance within the meaning of Wis. Stat. 108.08(1).

Holze appealed and at a hearing he testified that he did not initiate his claim earlier because he had to research a great deal of information for a pending felony charge and he could not file his claim while he did the research because it would have been an act against his conscience. He could not take something he did not feel he was entitled to if he had done something illegal. The administrative law judge and the commission affirmed the decision that Holze was not entitled to retroactive benefits because his failure to initiate the claim was not due to exceptional circumstances.

On January 3, 2003, Holze served the commission with a 30-page document asking for judicial review of the December 6, 2002, commission decision. The commission moved to dismiss Holze’s complaint on the grounds that the circuit court was not competent to review the case because Holze did not file a proper summons. On March 3, 2003, the circuit court determined that the summons was defective but denied the motion and gave Holze 10 days to serve an amended summons and complaint. On March 11, 2003, Holze filed an amended summons and complaint. Subsequently the circuit court affirmed the commission’s decision on the merits. Holze appealed to the court of appeals.

Held: The content, form and manner of service of a summons are set out in the statutes. Holze’s summons did not comply with the statutory requirements. It did not contain all of the information required and did not substantially resemble any of the specified forms. It did not require the commission to serve an answer within a specific time limit or notify the commission that failure to do so would result in judgment being rendered against it. Thus it was fatally defective. Holze’s pro se status is not a valid reason for his failure to comply with the statutory requirements.

Competency is the ability of a court to exercise its subject matter jurisdiction. A court gains competence to proceed by following the statutory requirements established by the legislature. It may lose competence to proceed if the statutory requirements are not followed. The legislative requirements for judicial review of a commission decision involving unemployment insurance benefits are clearly set forth. A summons must be filed and an authenticated copy of a summons must be served. Holze’s summons was fatally defective. He did not properly comply with the statutory requirements and the circuit court lost its power to act after the thirty-day time limit had run. Appeal dismissed and case remanded with directions to vacate the order and dismiss the complaint with prejudice. This opinion will not be published.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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