                                                             2016 WI 34

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:                2014AP1213
COMPLETE TITLE:          Cheryl M. Sorenson,
                                    Plaintiff-Respondent-Petitioner,
                              v.
                         Richard A. Batchelder,
                                    Defendant-Appellant,
                         United Healthcare Insurance Company,
                                    Defendant.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                                            (No Cites)

OPINION FILED:           May 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 20, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                Michael Guolee

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, J., joined by BRADLEY, A. W., J.
   NOT PARTICIPATING:


ATTORNEYS:
       For the For the plaintiff-respondent-petitioner there were
briefs by Timothy W. Schelwat, Jason F. Abraham and Hupy and
Abraham, S.C., Milwaukee.          Oral argument by Jason F. Abraham.




       For    the       defendant-appellant,   the   cause   was   argued   by
Jennifer L. Vandermeuse, assistant attorney general, with whom
on the brief was Brad D. Schimel, attorney general.
                                                                          2016 WI 34
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2014AP1213
(L.C. No.   2013CV5012)

STATE OF WISCONSIN                              :             IN SUPREME COURT

Cheryl M. Sorenson,

             Plaintiff-Respondent-Petitioner,
                                                                       FILED
      v.
                                                                  MAY 12, 2016
Richard A. Batchelder,
                                                                     Diane M. Fremgen
             Defendant-Appellant,                                 Clerk of Supreme Court


United Healthcare Insurance Company,

             Defendant.




      REVIEW of a decision of the Court of Appeals.                   Affirmed.



      ¶1     PATIENCE        DRAKE    ROGGENSACK,      C.J.      We      review       an

unpublished decision of the court of appeals,1 which reversed an

order of the Milwaukee County Circuit Court2 denying defendant

Richard     A.    Batchelder's       (Batchelder)    motion      to    dismiss      for

improper service of notice of claim.

      1
       Sorenson v. Batchelder, No. 2014AP1213, unpublished slip
op. (Wis. Ct. App. Apr. 7, 2015).
      2
       The       Honorable    Michael    D.   Guolee     of    Milwaukee        County
presided.
                                                                                    No. 2014AP1213



         ¶2        After sustaining property damage and personal injury

in   a       car        accident      occasioned           by    State    employee        Batchelder,

Cheryl M. Sorenson (Sorenson) delivered notice of claim to the

attorney general by personal service and subsequently instituted

a negligence action against Batchelder.                                       Batchelder moved to

dismiss, arguing that Sorenson did not strictly comply with Wis.

Stat. § 893.82 (2013-14),3 which requires service of notice of

claim on the attorney general by certified mail.

         ¶3        The     central      issue         before      us     is    whether    Sorenson's

personal            service      of    notice         of        claim    satisfies       Wis.    Stat.

§ 893.82            such       that    her       claim          against       Batchelder       may    be

continued.               We conclude that personal service does not comply

with         the    plain      language      of       § 893.82(5)         because        it    requires

service of notice of claim on the attorney general by certified

mail.               As     § 893.82(2m)          mandates           strict       compliance          with

requirements of § 893.82 in order to institute an action against

a state employee, and Sorenson's service failed to so comply, we

affirm        the        dismissal     of    Sorenson's           claim       against     Batchelder.
Accordingly, we affirm the decision of the court of appeals.

                                            I.    BACKGROUND

         ¶4        On October 28, 2010, Batchelder was operating a motor

vehicle            in    his    capacity         as    an        employee      of   the       Wisconsin




         3
       All further references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                       2
                                                         No. 2014AP1213



Department of Administration (DOA).4      Batchelder's vehicle rear-

ended the vehicle of a third party, causing that vehicle to

rear-end Sorenson's vehicle.       Sorenson alleges property damage,

as well as personal injury, resulting from the accident.

    ¶5      On January 18, 2011, Sorenson served notice of claim

on the attorney general by personal service at the attorney

general's office in the capitol in Madison, Wisconsin.          Personal

service was accepted by a state employee, who acknowledged its

receipt at the time of delivery.        The notice of claim was then

forwarded   to   the   attorney   general's   Main   Street   office   in

Madison where it was processed and endorsed by another state

employee on January 19, 2011; thereafter, it was returned to

Sorenson's attorney's office.

    ¶6      On February 28, 2011, after investigating Sorenson's

claim, the Bureau of State Risk Management issued a check to

Sorenson in the amount of $241.45 as payment in full for the

damage sustained by her vehicle as a result of the accident.5

The Bureau of State Risk Management also issued a letter to
Sorenson, stating that "[t]his payment does not represent an

admission of any liability on the part of the state, or any of

    4
       The record shows that Batchelder is an employee of the
Wisconsin Department of Health Services.   For purposes of the
motion to dismiss, however, we assume Sorenson's facts to be
true as alleged. State ex rel. Shroble v. Prusener, 185 Wis. 2d
102, 108, 517 N.W.2d 169 (1994).
    5
       Sorenson had previously submitted a property damage
estimate reflecting this amount to the State of Wisconsin's
insurer.


                                    3
                                                                      No. 2014AP1213



its employees or agents, and is not a waiver of any defenses the

state, or any of its employees or agents, may have."6

     ¶7     On     May 28,    2013,        Sorenson      instituted   a    negligence

action against Batchelder,7 who filed a motion to dismiss due to

improper service of notice of claim.                     Specifically, Batchelder

argued that Sorenson did not satisfy Wis. Stat. § 893.82, which

requires    service      by       certified       mail    and,   because    Sorenson

employed personal service, she did not strictly comply with the

statute.      The    circuit        court     denied     Batchelder's      motion   to

dismiss, concluding that service was proper because the attorney

general received notice of claim and, therefore, received all

that was required.

     ¶8     The    court     of    appeals       reversed,   concluding     that    the

plain    meaning    of   Wis.      Stat.    § 893.82(5)      requires     service   by

certified mail and that Sorenson failed to strictly comply with

the statute by personally serving notice of claim.

     ¶9     We granted Sorenson's petition for review.




     6
       In her brief, Sorenson fleetingly raises a waiver argument
with no supporting law. Waiver was not mentioned in Sorenson's
petition for review. Accordingly, we do not address it. Jankee
v. Clark Cnty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297
("Generally, a petitioner cannot raise or argue issues not set
forth in the petition for review unless this court orders
otherwise.")
     7
       Sorenson's   suit   also   joined    the   Department of
Administration (DOA) and Secretary of the DOA as defendants;
however, the circuit court dismissed both of these additional
defendants, and Sorenson has not appealed their dismissal.


                                             4
                                                                    No. 2014AP1213



                                 II.   DISCUSSION

                            A.   Standard of Review

     ¶10      Batchelder's       motion       to    dismiss      requires    us    to

interpret and apply Wis. Stat. § 893.82.                        Interpretation and

application of a statute present questions of law that we review

independently,      while    benefitting           from   the    analyses   of     the

circuit court and court of appeals.                 Pool v. City of Sheboygan,

2007 WI 38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415.

         B.    General Principles of Statutory Interpretation

     ¶11      "[S]tatutory interpretation 'begins with the language

of the statute.       If the meaning of the statute is plain, we

ordinarily stop the inquiry.'"                State ex rel. Kalal v. Circuit

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236

Wis. 2d 211, 612 N.W.2d 659).             Plain meaning may be ascertained

not only from the words employed in the statute, but also from

the context.8      Id., ¶46.      We interpret statutory language in the

context in which those words are used; "not in isolation but as
part of a whole; in relation to the language of surrounding or

closely-related     statutes;      and    reasonably,       to    avoid   absurd   or

unreasonable results."           Id.     Statutory history aids in a plain


     8
       "[S]cope, context, and purpose are perfectly relevant to a
plain-meaning interpretation of an unambiguous statute as long
as the scope, context, and purpose are ascertainable from the
text and structure of the statute itself." State ex rel. Kalal
v. Circuit Court for Dane Cnty., 2004 WI 58, ¶48, 271 Wis. 2d
633, 681 N.W.2d 110.


                                          5
                                                                              No. 2014AP1213



meaning analysis.             Adams v. Northland Equip. Co., 2014 WI 79,

¶30, 356 Wis. 2d 529, 850 N.W.2d 272.

      ¶12     "If the words chosen for the statute exhibit a 'plain,

clear      statutory        meaning,'      without         ambiguity,       the    statute      is

applied according to the plain meaning of the statutory terms."

State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d

769 (quoting Kalal, 271 Wis. 2d 633, ¶46).                            However, where the

statute     is     "capable     of       being    understood         by    reasonably     well-

informed persons in two or more senses[,]" then the statute is

ambiguous.         Kalal, 271 Wis. 2d 633, ¶47.                  Where the language is

ambiguous,       we    may     then       consult      extrinsic          sources,    such      as

legislative history.                Id., ¶50.          "While extrinsic sources are

usually not consulted if the statutory language bears a plain

meaning,      we    nevertheless           may    consult      extrinsic          sources    'to

confirm or verify a plain-meaning interpretation.'"                               Grunke, 311

Wis. 2d 439, ¶22 (quoting Kalal, 271 Wis. 2d 633, ¶51).

      ¶13     Ultimately,           we     bear       in     mind     that        "[s]tatutory

interpretation         involves          the   ascertainment         of     meaning,      not   a
search for ambiguity."                   Kalal, 271 Wis. 2d 633, ¶47 (internal

quotation marks omitted) (quoting Bruno v. Milwaukee Cnty., 2003

WI   28,    ¶25,      260    Wis. 2d      633,       660    N.W.2d    656).        With     these

general principles in mind, we turn to our review of Wis. Stat.

§ 893.82.

                               C.     Wis. Stat. § 893.82

      ¶14     Wisconsin        Stat.       §893.82         applies    to     claims    brought

against state employees.                 Section 893.82(2m) provides that "[n]o
claimant may bring an action against a state officer, employee
                                                 6
                                                                No. 2014AP1213



or   agent    unless    the    claimant     complies    strictly     with   the

requirements of this section."

     ¶15     With   regard     to   notice,     Wis.    Stat.      § 893.82(3)

provides, in relevant part, that:

     [N]o civil action or civil proceeding may be brought
     against any state officer, employee or agent for or on
     account of any act growing out of or committed in the
     course of the discharge of the officer's, employee's
     or agent's duties . . . unless within 120 days of the
     event causing the injury, damage or death giving rise
     to the civil action or civil proceeding, the claimant
     in the action or proceeding serves upon the attorney
     general written notice of a claim stating the time,
     date, location and the circumstances of the event
     giving rise to the claim . . . .
     ¶16     With regard to service of notice of claim, Wis. Stat.

§ 893.82(5) requires that "[t]he notice under sub. (3) shall be

sworn to by the claimant and shall be served upon the attorney

general at his or her office in the capitol by certified mail.

Notice shall be considered to be given upon mailing for the

purpose of computing the time of giving notice."

     ¶17     Finally,   Wis.    Stat.     § 893.82(1)   provides     that   the
purposes of the section are to:

          (a) Provide the attorney general with adequate
     time to investigate claims which might result in
     judgments to be paid by the state.

          (b)   Provide  the   attorney general with an
     opportunity to effect a compromise without a civil
     action or civil proceeding.

          (c) Place a limit on the amounts recoverable in
     civil actions or civil proceedings against any state
     officer, employee or agent.




                                        7
                                                                         No. 2014AP1213



       ¶18     Having set forth the text of the statutory provisions

at issue, we now turn to the parties' arguments with respect to

Wis. Stat. § 893.82.

                              D.    Parties' Positions

       ¶19     The parties do not dispute that the plain language of

Wis. Stat. § 893.82(5) requires that notice of claim be served

by certified mail.           There is likewise no dispute that the plain

language     of    § 893.82(2m)       requires     strict    compliance       with      the

statute in order to bring a subsequent action against a state

employee.

       ¶20     The dispute between the parties arises out of their

disagreement about what constitutes strict compliance with the

certified      mail      requirement.        Batchelder       argues      that    strict

compliance        with    Wis.     Stat.   § 893.82       cannot    be    accomplished

without serving notice of claim by certified mail as the words

of    § 893.82(5)        provide.     According      to    Batchelder,       Sorenson's

personal service is not service by certified mail and, as such,

she failed to strictly comply with § 893.82(5), which required
dismissal of her claim.

       ¶21     Sorenson     argues     that,      although    the    words       of     the

statute direct strict compliance, literal compliance with the

words of the statute is not required.                        Rather, according to

Sorenson, her delivery of the notice of claim to the attorney

general by personal service fulfilled the purpose of Wis. Stat.

§ 893.82 and provided the attorney general with actual notice of

her    claim    more     effectively       than   delivery    by    certified         mail.
Sorenson also argues that her personal service should be held to
                                             8
                                                                            No. 2014AP1213



satisfy the statute because to hold otherwise would lead to an

absurd result; namely, the dismissal of her otherwise viable

claim in spite of her fulfillment of the statutory purpose.                                  We

will address these arguments in turn.

     E.   Interpretation and Application of Wis. Stat. § 893.82

                                1.    Literal compliance

      ¶22    As set forth above, the plain language of Wis. Stat.

§ 893.82(5) requires service of notice of claim on the attorney

general     by   certified           mail,   and     § 893.82(2m)        requires        strict

compliance with provisions of § 893.82.                       Contrary to Sorenson's

argument     that       strict       compliance       does    not    require       literally

complying with the words of the statute, it has been repeatedly

stated that requirements of § 893.82 are not general guidelines

but, rather, a claimant must strictly comply with the words in

the statute in order to proceed with his or her claim.                                Kellner

v.   Christian,     197       Wis. 2d        183,    195,    539    N.W.2d      685      (1995)

(concluding       that    a     claimant      "must     adhere      to   each      and    every

requirement in the statute"); Modica v. Verhulst, 195 Wis. 2d
633, 641-42, 536 N.W.2d 466 (Ct. App. 1995) (explaining that

strict      compliance        with      § 893.82        is    required;         substantial

compliance is insufficient).

      ¶23    Moreover,          Wisconsin           courts    have       equated         strict

compliance       with    literal       adherence       to    the    words    used     in    the

statute.      Force v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶14,

356 Wis. 2d 582, 850 N.W.2d 866 (comparing a "strict literal

interpretation"          with     statutory         interpretation          that    furthers
legislative      purposes);          Kalal,    271     Wis. 2d      633,    ¶56    (equating
                                               9
                                                                        No. 2014AP1213



"strict" with "literal" statutory interpretation); Bar Code Res.

v. Ameritech Info. Sys., Inc., 229 Wis. 2d 287, 291, 294, 599

N.W.2d 872 (Ct. App. 1999) (explaining that Wisconsin service

statutes are "literally read and strictly applied"); see also

Barbara J. Van Arsdale, Certificate of Acknowledgement, 1 Am.

Jur.    2d    Acknowledgments       § 29        (database    updated      Feb.      2016)

(equating      strict      compliance       with      literal      compliance        and

distinguishing substantial compliance).

       ¶24    Therefore,     we    enforce       literal     compliance      with    the

plain language of Wis. Stat. § 893.82(5) unless such enforcement

would lead to an absurd result.                  Hines v. Resnick, 2011 WI App

163,   ¶16,    338    Wis. 2d     190,   807     N.W.2d     687.    It     necessarily

follows      that,    in   order    to    strictly     comply      as    § 893.82(2m)

requires, a claimant must literally follow the words of the

statute.      This requires a claimant to serve notice of claim on

the attorney general by certified mail pursuant to the plain

language of § 893.82(5).            Kelly v. Reyes, 168 Wis. 2d 743, 747,

484 N.W.2d 388 (Ct. App. 1992) (holding that service by regular
mail did not strictly comply with the certified mail requirement

even    though       the   attorney      general     received      actual     notice).

Sorenson's choice of personal service is simply not service by




                                           10
                                                                          No. 2014AP1213



certified mail.9            Consequently, we conclude that Sorenson did not

strictly comply with § 893.82(5).

   2.       Fulfilling statutory purposes (substantial compliance)

       ¶25       Sorenson next contends that, without serving notice of

claim by certified mail, she strictly complied with the statute

because         she   fulfilled   its    stated        purposes,    and   the   attorney

general received actual notice of her claim.                        Sorenson contends

that she met the purposes set forth in Wis. Stat. § 893.82(1),

which are to "[p]rovide the attorney general with adequate time

to investigate claims . . .[,] [p]rovide the attorney general

with       an   opportunity     to     effect      a   compromise    without    a    civil

action . . .[,] [and] [p]lace a limit on the amounts recoverable

in civil actions."

       ¶26       Sorenson     emphasizes      that,     through     personal    service,

notice of claim was processed by the attorney general's office

in the same manner in which it would have been processed if

notice of claim had been delivered by certified mail.                            Namely,

although notice of claim was personally served at the attorney
general's         capitol    office,     it   ultimately      was    received       at   the

attorney         general's      Main     Street        office,     acknowledged,         and

returned to counsel, indicating that notice of claim had been

       9
       Black's Law Dictionary defines certified mail as "[m]ail
for which the sender requests proof of delivery in the form of a
receipt signed by the addressee.      The receipt . . . must be
signed before the mail will be delivered."          Black's Law
Dictionary, 1038 (9th ed. 2009). Personal service, on the other
hand, is defined as "[a]ctual delivery of the notice or process
to the person to whom it is directed." Id. at 1259.


                                              11
                                                                            No. 2014AP1213



received         by    the     attorney    general.         Therefore,       according         to

Sorenson,         the    statute's      purposes        were    fulfilled        by    personal

service of notice of claim because the attorney general received

the required notice and took action with respect to her claim.

We are not persuaded.

          ¶27    Sorenson appears to argue that she strictly complied

with Wis. Stat. § 893.82 by substantially complying with it.                                    As

set forth above, strict compliance requires exactly following

the    words      of     the    statute.        Kellner,       197     Wis. 2d    at    194-95.

Substantial           compliance,       on      the   other      hand,      provides          that

statutory directives may be met where the purpose underlying the

statute has been fulfilled notwithstanding the words chosen by

the legislature.               Andrews Constr., Inc. v. Town of Levis, 2006

WI App 180, ¶11, 296 Wis. 2d 89, 722 N.W.2d 389 (explaining that

"substantial            compliance        contemplates          actual     compliance           in

respect to the substance essential to every reasonable objective

of    the       statute."      (internal       quotation       marks    omitted)       (quoting

Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 200, 405
N.W.2d 732 (Ct. App. 1987))).                    Stated otherwise, in the context

of    a    notice       statute    such    as    Wis.    Stat.       § 893.82,        where    the

underlying purpose is to effect notice, a claimant may be able

to    substantially            comply     by    effecting       actual     notice       to     the

respondent.            See Kellner, 197 Wis. 2d at 195-96 (examining the

distinction between substantial compliance and strict compliance

by comparing § 893.80 and § 893.82 (citing                              Figgs v. City of

Milwaukee, 121 Wis. 2d 44, 53, 357 N.W.2d 548 (1984))).


                                                12
                                                                                  No. 2014AP1213



       ¶28     While       we    do    not    dispute       that    the     attorney       general

received actual notice through Sorenson's personal service, it

is well established that Wis. Stat. § 893.82 is not simply an

actual notice statute.                  Id.        It is not enough to substantially

comply       with    the    statute         by     effecting      actual     notice,       thereby

fulfilling          the    underlying            purposes    of     § 893.82(1).            Simply

stated, Sorenson cannot strictly comply with the plain language

of    § 893.82(5)          by     substantially          fulfilling         the    purposes     of

§ 893.82       because          the    legislature        has      chosen    not      to    permit

substantial compliance by requiring strict compliance with the

terms of the statute.                 Wis. Stat. § 893.82(2m).

       ¶29     To    aid    in        our    plain      meaning     analysis,        we    briefly

examine       statutory         history.           A    prior     version     of     Wis.    Stat.

§ 893.82 provided "[t]he provisions of this section shall be

liberally construed to effectuate [its] intent."                              § 893.82(1)(b)

(1989-90).10         Because the intent of the notice of claim statute

is to give notice to the attorney general, and the legislature

mandated       liberal          construction,           substantial         compliance        with
§ 893.82 previously was sufficient to institute a claim against

a    state    employee.           Daily       v.    Univ.    of    Wis.,     Whitewater,       145

Wis. 2d 756, 761, 429 Wis. 2d 83 (Ct. App. 1988), superseded by

statute as stated in Modica, 195 Wis. 2d at 641.

       ¶30     However, Wis. Stat. § 893.82 subsequently was amended

to its current form that directs strict compliance with the


       10
            1983 Wis. Act. 27, § 1782.


                                                   13
                                                                            No. 2014AP1213



terms of the statute.11             Wis. Stat. § 893.82(2m).                In Modica, the

court       of    appeals    concluded       that       with    this     amendment,       the

legislature intended to "negat[e] [the] ruling in Daily that

substantial         compliance        with     § 893.82(3)            was     sufficient."

Modica, 195 Wis. 2d at 641-42.                    Accordingly, strict compliance

through      certified       mail    is   required,       as     § 893.82(2m)        plainly

states.      See id. at 642.

       ¶31       Moreover,    we     note    that       strict        adherence      to   the

certified        mail    requirement      promotes       a     "simple,       orderly,    and

uniform way of conducting legal business."                       Kellner, 197 Wis. 2d

at 195 (citing Kelly, 168 Wis. 2d at 747).                            Furthermore, if we

were    to       allow   substantial        compliance         rather    than     enforcing

strict compliance as mandated by Wis. Stat. § 893.82(2m), the

certainty created by the requirement of certified mail would be

undercut by costly case-by-case determinations of whether notice

of claim was timely sent and received and whether the lack of

procedural         compliance       affected      the    purposes        of    the    notice

statute.         Kelly, 168 Wis. 2d at 747.
       ¶32       Although the attorney general received actual notice

here, such a determination may not be so easily made in the next

case.       Condoning a deviation from the certified mail requirement

could therefore encourage "[a] new level of litigation [to] be

added to suits against state employees."                        Id.     In light of this

reality, Wis. Stat. § 893.82(5) must be strictly enforced even


       11
            1991 Wis. Act 39, § 3579.


                                             14
                                                                               No. 2014AP1213



though    enforcement        produces          harsh       consequences        that     are    of

concern to us.           J.F. Ahern Co. v. Wis. State Bldg. Comm'n, 114

Wis. 2d 69, 83, 336 N.W.2d 679 (Ct. App. 1983).

                             3.     Stricter compliance

     ¶33     Sorenson       also    argues       that       she     satisfied     the    strict

compliance        requirement       of        Wis.     Stat.        § 893.82(2m)        because

personal    service       constitutes           "stricter          compliance,"       or      more

effective    service,       than        certified         mail.        Sorenson    relies      on

Patterson v. Bd. of Regents of the Univ. of Wis. Sys., 103

Wis. 2d    358,     360-61,       309    N.W.2d       3     (Ct.    App.     1981),     for   the

proposition that "stricter compliance than the statute demands

is not necessarily a failure to strictly comply."

     ¶34     In    Patterson,           the     court       of      appeals     examined       an

entirely different statutory scheme, Wis. Stat. § 227.16(1)(a)

(1979-80),        which     at     that        time       required      that      service      be

accomplished either by personal service or certified mail.12                                   Id.

at 359.      Rather than complying with the statute, the claimant

served by registered mail.                 Id.        Although the court of appeals
noted     that     strict        compliance          with     ch.      227    procedures       is

required, it held that registered mail constituted a "form of

certified mail" as the only difference between the two is that

registered        mail    requires         a     receipt          of    delivery,       whereas

certified mail gives the option of a delivery receipt to the

sender.     Id. at 360-61.           Because service by registered mail and

     12
       Wisconsin Stat. § 227.16(1)(a) (1979-80) was renumbered
to Wis. Stat. § 227.53(1)(a). 1985 Wis. Act 182.


                                                15
                                                                         No. 2014AP1213



certified         mail   are     identical       as     far   as   the      recipient     is

concerned, the court of appeals held that registered mail may be

substituted for certified mail under § 227.16(1)(a) (1979-80).

Id. at 361.

       ¶35    A    federal      court    extended       the   Patterson      decision     to

hold   that       personal      service    constitutes        "stricter       compliance"

with the requirements of Wis. Stat. § 893.82 than does service

by certified mail.             Weis v. Bd. of Regents of the Univ. of Wis.

Sys., 837 F. Supp. 2d 971, 979 (E.D. Wis. 2011).                               Relying on

Patterson, the federal court stated that the "use of personal

service      fulfills          the     purpose     behind      the    certified         mail

requirement in the notice of claim statute, and the [defendants]

have failed to explain how the service effected in this case

differs, other than in name, from the form of service specified

in the statute."          Id.        We are not persuaded by the federal court

decision; its reliance on Patterson is misplaced.

       ¶36    In addition to the stated purposes under Wis. Stat.

§ 893.82(1), we note that there is a "more specific purpose of
the certified mailing requirement in Wis. Stat. § 893.82(5)[,

which] is to 'allow[] the attorney general's office to easily

identify mail whose contents are legal in nature and require

immediate     attention.'"             Hines,     338    Wis. 2d     190,    ¶26   (second

alteration in original) (quoting Kelly, 168 Wis. 2d at 748).

       ¶37    Of course, Sorenson's chosen method of service did not

permit    use      of    the   procedure     for      receiving      notices    of   claim

developed by the attorney general because the notice of claim
did not arrive by mail at all.                  See id., ¶9 (explaining attorney
                                             16
                                                                              No. 2014AP1213



general's procedure for receiving notices of claim by certified

mail at Post Office Box, which are then forwarded to the Main

Street office).          Rather, Sorenson's notice of claim arrived at

the capitol office by personal service and had to be forwarded

to the Main Street office.                Therefore, unlike the situation in

Patterson,      personal       service        on    the   attorney       general        is   not

identical to service by certified mail to the attorney general

and did not fulfill the foregoing objective of the statute.

Moreover, unlike registered mail, personal service is not simply

a "stricter form of certified mail" because it is an entirely

different mode of service.               Patterson, 103 Wis. 2d at 360.

       ¶38     Furthermore, holding that personal service constitutes

"stricter      compliance"        than    service         by    certified        mail    would

require us to override the statute's plain language when the

legislature has so clearly chosen the mode of service necessary

to satisfy Wis. Stat. § 893.82(5).                    We decline to do so.              As the

court of appeals properly noted, there are numerous statutes

under which the legislature has chosen to include both certified
mail    and    personal        service    as        acceptable        modes    of    service.

Sorenson v. Batchelder, No. 2014AP1213 at 4, unpublished slip

op.    (Wis.    Ct.    App.     Apr.     7,    2015).          See,    e.g.,     Wis.    Stat.

§ 32.05(4);           Wis.      Stat.         § 48.978(2)(c)2.;               Wis.       Stat.

§ 66.0217(4)(b);          Wis.     Stat.           § 109.09(2)(b)2.;            Wis.     Stat.

§ 196.135(3);           Wis.      Stat.            § 707.38(4)(b);            Wis.       Stat.

§ 766.588(4)(b); and Wis. Stat. § 895.07(1)(j).

       ¶39     Furthermore,      where        the    legislature        decides      personal
service is sufficient, the legislature is clearly capable of
                                              17
                                                                               No. 2014AP1213



enacting a statute to reflect that choice.                              State v. Hemp, 2014

WI 129, ¶31, 359 Wis. 2d 320, 856 N.W.2d 811 (explaining that we

do   not       read    language      into    the     statute          that   the      legislature

omitted).             Consequently,        we   decline          to    override        the    plain

meaning of the statute and the choice of the legislature by

declaring that personal service is more effective than service

by certified mail.              Braverman v. Columbia Hosp., Inc., 2001 WI

App 106, ¶24, 244 Wis. 2d 98, 629 N.W.2d 66 ("[O]ur role is not

to justify the legislative action or to substitute our judgment

for that of the legislature.").                      Accordingly, we conclude that

Sorenson's personal service does not constitute service pursuant

to the plain meaning of Wis. Stat. § 893.82(5).

                                     4.    Absurd result

      ¶40       Finally, Sorenson argues that dismissing her otherwise

viable      claim       would     constitute         an    absurd        result       since    she

fulfilled        the    purposes      of    Wis.     Stat.        § 893.82       by    effecting

notice on the attorney general.                      As set forth above, the plain

language of § 893.82(2m) requires claimants to strictly comply
with the certified mail requirement of § 893.82(5), and Sorenson

failed to so comply.              We must require strict compliance.                         Hines,

338 Wis. 2d 190, ¶16 (enforcing strict compliance unless strict

compliance is impossible).                  Strict compliance was not impossible

for Sorenson to accomplish.

      ¶41       However,        we    recognize           that        "[o]ne     of     the    few

exceptions to this sound principle is that [we] will seek to

avoid      a    truly     absurd      or     unreasonable             result."         State     v.
Hamilton, 2003 WI 50, ¶39, 261 Wis. 2d 458, 661 N.W.2d 832.                                      We
                                                18
                                                                  No. 2014AP1213



previously have recognized that an absurd result may arise where

"an      interpretation        would    render       the     relevant      statute

contextually inconsistent or would be contrary to the clearly

stated purpose of the statute."              Grunke, 311 Wis. 2d 439, ¶31

(footnotes omitted).

      ¶42     Requiring notice of claim to be served by certified

mail as plainly stated in Wis. Stat. § 893.82(5) does not bring

about an absurd result.           First, Sorenson points to no internal

inconsistencies created by the plain meaning of the statute, and

we perceive none.           Moreover, enforcing the plain language of

§ 893.82(5) is not contrary to its stated purposes.                        Rather,

service by certified mail is wholly consistent with the purposes

of the statute; namely, to effect service and to "[p]rovide the

attorney      general   with     adequate    time     to     investigate    claims

. . .[,] [p]rovide the attorney general with an opportunity to

effect    a    compromise    without     a   civil     action    . . .[,]    [and]

[p]lace a limit on the amounts recoverable in civil actions."

Wis. Stat. § 893.82(1).
      ¶43     Simply because another mode of service seemingly would

fulfill these stated purposes does not give rise to an absurd

result.       The legislature specifically chose the acceptable mode

of service, Wis. Stat. § 893.82(5), and we may not second guess

its choice.      State ex rel. Associated Indem. Corp. v. Mortensen,

224 Wis. 398, 401, 272 N.W. 457 (1937) (explaining that we are

not   justified    in   rewriting      the   statute    to    "substitut[e]    the

judgment of the court for that of the legislature as to what is
sound or absurd"); see also Hallstrom v. Tillamook Cnty. 493
                                        19
                                                                                No. 2014AP1213



U.S. 20, 27 (1989) (explaining that federal service statutes

require strict, literal compliance, and the Court is "not at

liberty to create an exception where Congress has declined to do

so").

    ¶44     Sorenson easily could have served notice of claim on

the attorney general by certified mail.                           See Hines, 338 Wis. 2d

190, ¶16 (holding that enforcing strict compliance where strict

compliance       is    impossible           would       lead    to     an    absurd     result).

Accordingly,      we     must        enforce          the    statute    as     written,     which

dictates    the       dismissal        of    Sorenson's          claim.         Hamilton,      261

Wis. 2d 458, ¶45 ("We exceed our authority when we ignore the

clear     language       of      a     statute          and     attempt        to    surgically

reconstruct       the     statute           to    accommodate           alternative         public

policies.").

    ¶45     Although the result in this case is harsh, and we are

sympathetic       to    Sorenson's           unfortunate         situation,         her     remedy

simply does not lie with us.                           See Mannino v. Davenport, 99

Wis. 2d    602,       615,     299     N.W.2d          823     (1981)       (enforcing      strict
compliance because we are not free to ignore the import of a

statute's plain meaning even where we do not "enthusiastically

endorse     the        result"        that       enforcement           causes);       see     also

Hallstrom,    493       U.S.     at    21        (acknowledging         harsh       result,   but

refusing    to    excuse       failure           to    strictly      comply      with     federal

statutory    service         requirements             on     unfairness       grounds     because

lawsuits are conducted by trained lawyers).                              Rather, Sorenson's

remedy lies with the legislature.                             See Hamilton, 261 Wis. 2d


                                                  20
                                                                     No. 2014AP1213



458, ¶49 (calling on legislature to adjust statutory scheme if

so desired); Mannino, 99 Wis. 2d at 615-16 (same).

                                III.     CONCLUSION

    ¶46       In light of the foregoing, we conclude that delivering

notice   by    personal    service       does    not    comply     with     the   plain

language of Wis. Stat. § 893.82(5), which requires service of

notice of claim on the attorney general by certified mail.                          As

§ 893.82(2m)       mandates     strict   compliance        with    requirements      of

§ 893.82      in   order   to    institute      an     action     against    a    state

employee, and Sorenson's service failed to so comply, we affirm

the dismissal of Sorenson's claim against Batchelder.

    By     the     Court.—The    decision       of   the   court    of    appeals    is

affirmed.




                                          21
                                                                No.   2014AP1213.ssa


      ¶47    SHIRLEY S. ABRAHAMSON, J.                (dissenting).      Wisconsin

Stat.     § 893.82   requires     an   individual,      prior   to    filing    suit

against a "state officer, employee or agent," to serve a "notice

of claim"1 on the attorney general in his office in the Capitol

by   certified   mail.      See    Wis.       Stat.   §§ 893.82(2m),     (3),    (5)

(2013-14).2

      ¶48    No one can literally (or "strictly," see Wis. Stat.

§ 893.82(2m)) comply with the statute.                 The attorney general no

longer receives certified mail in his office in the Capitol.3

The majority is not perturbed.                 See majority op., ¶37.            The

majority does not require strict compliance with this aspect of

the statute.         Rather the majority adjusts its reading of the

statute to fit the facts and to make practical sense.

      ¶49    The majority does not, however, adjust its reading of

the statute to allow notice of a claim to be delivered by a

person in a sheriff's uniform or other process server's uniform

rather than by a person in a United States postal uniform.                      The

majority opinion implicitly concludes that the uniform of the

      1
       An example of a notice of claim is available on the
Department         of        Justice's         website         at
https://www.doj.state.wi.us/sites/default/files/dls/notice-of-
injury-and-claim-form.pdf.
      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
      3
       Hines v. Resnick, 2011 WI App 163, ¶14, 338 Wis. 2d 190,
807 N.W.2d 687 ("[T]he undisputed facts in this case establish
that service by certified mail to the attorney general's capitol
office never occurs, and cannot occur, regardless of how a
claimant addresses a notice, or what physical location the
claimant has in mind as its destination.").


                                          1
                                                                  No.    2014AP1213.ssa


person delivering a notice of claim is key to whether the notice

was   validly     served.     If    a    notice    of    claim   is     not   sent   by

certified mail, and thus delivered by someone in a U.S. postal

uniform,    the      majority      opinion     concludes         the     notice      was

improperly served, and the claimant's case should be dismissed.

      ¶50   The    record    demonstrates         that    Sorenson's      notice      of

claim, although served by a process server, was processed at the

attorney general's office by the same individuals in the same

manner as notices of claim served by certified mail.

      ¶51   I     agree    with    the    concerns       of   Judge     Posner,      who

recently decried dismissal of a litigant's viable claim based on

counsel's harmless procedural gaffe.                The concerns he expressed

are   pragmatic,     but    rest    on   the   principles        of     fairness     and

justice upon which our legal system is based.                         These concerns

should guide the court in the present case.                   Judge Posner wrote:

      I find myself increasingly uncomfortable with basing
      dismissals with prejudice on harmless procedural
      bobbles.   The only argument in favor of such summary
      justice that I can imagine is that by punishing
      parties for their lawyers' mistake we improve the
      quality of the bar; the lawyers who disserve their
      clients attract fewer new clients and eventually
      perhaps are forced to leave the practice——an example
      of the positive effect of competition on the quality
      of goods and service that a market provides.       But
      while this is plausible in theory, I have to say that
      in more than 33 years as a federal court of appeals
      judge I have not noted any improvement in the average
      quality of the lawyers who appear before us.    I find
      it difficult to believe that punishing [the plaintiff]
      and his lawyer by in effect a "fine" of $925,000 will




                                          2
                                                                  No.   2014AP1213.ssa

    promote the quality of              legal    representation         in    the
    courts of this circuit.4
    ¶52    I     disagree       with   the      majority's       conclusion         that

personal service in the instant case does not comply with the

statutory service requirement and that only service by certified

U.S. mail counts.

    ¶53    I write separately to make two points:

           (1)    A court scrutinizes the text of a statute in view

                  of the purposes of the statute.                 "Words are given

                  meaning        to    avoid     absurd,        unreasonable,         or

                  implausible results and results that are clearly

                  at odds with the legislature's purpose."                          Force

                  ex rel. Welcenbach v. Am. Family Mut. Ins. Co.,

                  2014 WI 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 866.

                  Personal service fulfills the express purposes of

                  the notice of claim requirement.

           (2)    Personal service is a stricter form of service

                  than    certified      mail,       and    "stricter    compliance

                  than    the    statute     demands       is   not   necessarily      a

                  failure to strictly comply."                   See Patterson v.

                  Bd.     of     Regents,      103     Wis. 2d 358,          361,    309

                  N.W.2d 3 (Ct. App. 1981); Weis v. Bd. of Regents,

                  837 F. Supp. 2d 971, 979 (E.D. Wis. 2011).

    ¶54    Because, in my opinion, personal service fulfills the

purposes   of    Wis.    Stat.    § 893.82      and   is    a   stricter      form    of


    4
       See Reserve Hotels PTY Ltd. v. Mavrakis, 790 F.3d 738, 745
(7th Cir. 2015) (Posner, J., dissenting).


                                         3
                                                                  No.    2014AP1213.ssa


service      than     certified      mail,        interpreting           Wis.       Stat.

§ 893.82(2m) to bar an action against a state officer, employee,

or   agent    simply      because    the       notice     of    claim        was   served

personally by a process server rather than by a U.S. postal

worker delivering certified mail would lead to the absurd result

of   dismissing      an    otherwise       viable       claim    for     a     "harmless

procedural bobble[]."5

     ¶55     As a result, I dissent and write separately.

                                           I

     ¶56     I begin with the text of Wis. Stat. § 893.82, which

states (in relevant part and with emphasis added) the purposes

of the section and the requirements the legislature has set

forth:

     (1)     The purposes of this section are to:

             (a)    Provide the attorney general with adequate
                    time to investigate claims which might
                    result in judgments to be paid by the state.

             (b)    Provide   the   attorney  general  with   an
                    opportunity to effect a compromise without a
                    civil action or civil proceeding.

                    . . . .

     (2m) No claimant may bring an action against a state
          officer, employee or agent unless the claimant
          complies strictly with the requirements of this
          section.

     (3)     Except as provided in sub. (5m), no civil action
             or civil proceeding may be brought against any
             state officer, employee or agent for or on

     5
       See Reserve         Hotels,     790      F.3d     at     745     (Posner,      J.,
dissenting).


                                           4
                                                           No.   2014AP1213.ssa

           account of any act growing out of or committed in
           the course of the discharge of the officer's,
           employee's or agent's duties, . . . unless within
           120 days of the event causing the injury, damage
           or death giving rise to the civil action or civil
           proceeding, the claimant in the action or
           proceeding serves upon the attorney general
           written notice of a claim stating the time, date,
           location and the circumstances of the event
           giving rise to the claim for the injury, damage
           or death and the names of persons involved,
           including the name of the state officer, employee
           or agent involved. . . .

                   . . . .

    (5)    The notice under sub. (3) shall be sworn to by
           the claimant and shall be served upon the
           attorney general at his or her office in the
           capitol by certified mail.       Notice shall be
           considered to be given upon mailing for the
           purpose of computing the time of giving notice.
    ¶57    As    Wis.   Stat.   § 893.82(1)    explains,   the    purpose   of

requiring a claimant to serve a notice of claim on the attorney

general is twofold: (1) to provide the attorney general with

notice of claims against the state and time to investigate; and

(2) to provide the attorney general time to reach a settlement

prior to litigation.
    ¶58    In Wis. Stat. § 893.82(5), the legislature specified a

method    of    service   for   notices   of    claim:     certified    mail.

Certified mail is "[m]ail for which the sender requests proof of

delivery in the form of a receipt signed by the addressee."

Black's Law Dictionary 1096 (10th ed. 2014).

    ¶59    The court of appeals has articulated a twofold purpose

for requiring service on the attorney general by certified mail:

(1) to "allow[] the attorney general's office to easily identify
mail whose contents are legal in nature and require immediate

                                     5
                                                              No.    2014AP1213.ssa


attention"; and (2) to ensure that delivery of the notice of

claim can be verified.               See Kelly v. Reyes, 168 Wis. 2d 743,

747-48, 484 N.W.2d 388 (Ct. App. 1992);                   Patterson v. Bd. of

Regents, 103 Wis. 2d 358, 360, 309 N.W.2d 3 (Ct. App. 1981).

     ¶60      Personal service (by a process server) of a notice of

claim serves both the express statutory purposes for notice of

claim contained in Wis. Stat. § 893.82(1) and the purposes of

requiring notices of claim be served on the attorney general by

certified mail identified in the case law.

     ¶61      A personally served notice of claim, like a notice of

claim served by certified mail, informs the attorney general of

claims against the state and gives him or her an opportunity to

reach     a   settlement     prior    to   litigation.      Moreover,     personal

service (by a process server) of a notice of claim, even more

than service by a U.S. postal worker by certified mail, clearly

identifies the notice as legal in nature and provides an easily

verifiable      means   of   confirming      that   the   notice    was   actually

served and when it was served.
     ¶62      In sum, there is no reason "why signing a receipt for

an envelope delivered by a U.S. Postal employee is different

from signing an acknowledgement of receipt on a copy of a notice

of claim delivered by a deputy sheriff or other process server."

Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis.

2011).6

     6
         The Weis court wrote that the State defendant argued

     that 'the certified mail requirement facilitates the
     identification of that particular type of legal
                                                    (continued)
                              6
                                                               No.     2014AP1213.ssa


      ¶63   The dismissal of an otherwise viable claim should not

depend on whether notice of that claim was delivered by someone

in a sheriff's uniform rather than a U.S. postal uniform.                           To

hold otherwise, as the majority opinion does, is to elevate form

over substance and countenance an absurd result——dismissal of a

viable claim based on a harmless procedural gaffe.                     See Hamilton

v. Hamilton, 2003 WI 50, ¶39, 261 Wis. 2d 458, 661 N.W.2d 832

("[A] court will seek to avoid a truly absurd or unreasonable

result.") (citations omitted).

                                       II

      ¶64   The    absurdity      of   dismissing         Sorenson's      otherwise

viable claims based on personal service of the notice of claim

by a process server rather than service by a U.S. postal worker

by   certified    mail    is   underscored      by   the   fact    that    personal

service is, in fact, a stricter form of service than certified

mail.

      ¶65   In dismissing Sorenson's otherwise viable claims, the

majority    opinion      relies   on   the      requirement       in   Wis.      Stat.
§ 893.82(2m)      that    a    claimant       "compl[y]    strictly       with     the

requirements of [Wis. Stat. § 893.82]."              See majority op., ¶24.


      filing' . . . but offer no explanation why signing a
      receipt for an envelope delivered by a U.S. Postal
      employee is different from signing an acknowledgment
      of receipt on a copy of a notice of claim delivered by
      a deputy sheriff or other process server.     Seeing no
      difference between the two, I conclude that Plaintiffs
      strictly complied with the notice of claim statute.

Weis v. Bd. of Regents, 837 F. Supp. 2d 971, 979 (E.D. Wis.
2011).


                                          7
                                                                      No.     2014AP1213.ssa


       ¶66     In an analogous context——the statute required service

by registered mail and service was by certified mail——the court

of     appeals     noted     that        "[a]lthough       we    agree      that     strict

compliance . . . is required . . . we conclude that a stricter

compliance than the statute demands [here, by certified mail] is

not necessarily a failure to strictly comply.                            Such a reading

would lead to an absurd and unjust result, and we reject such a

construction."          Patterson, 103 Wis. 2d at 360-61.

       ¶67     Relying     on    Patterson's           observation       that      stricter

compliance is not necessarily a failure to strictly comply, the

federal      district      court     in       Weis    v.   Board    of      Regents,      837

F. Supp. 2d 971 (E.D. Wis. 2011), rejected the same argument the

State makes in the instant case.

       ¶68     In Weis, the plaintiffs personally served notice of

claim on the attorney general.                      Weis, 837 F. Supp. 2d at 979.

The defendants in Weis argued that because notice of claim was

not served by certified mail, the plaintiffs' claims should be

dismissed.       Weis, 837 F. Supp. 2d at 979.
       ¶69     Noting     that     the    plaintiffs'       notice       of     claim    was

received     and   acknowledged          by    the    attorney     general,      the     Weis

court    concluded       there     was     no       meaningful     difference      between

service by certified mail and service by process server.                                Weis,

837 F. Supp. 2d at 979.             As a result, the federal district court

held    that     the    plaintiffs        strictly      complied     with     Wis.      Stat.

§ 893.82.       Weis, 837 F. Supp. 2d at 979-80.

       ¶70     The reasoning in Patterson and Weis is, in my opinion,
more persuasive than that of the majority opinion.                              Service of

                                                8
                                                                       No.    2014AP1213.ssa


process by a sheriff or process server is reliable, verifiable,

and almost universally accepted.                    "Certainly, the gold standard

of notice is service of process by the sheriff or other process

server . . . ."            Schlereth v. Hardy, 280 S.W.3d 47, 52 n.4 (Mo.

2009)    (en       banc).       For    this    reason,       Wis.    Stat.    § 801.11(3)

requires personal service on the State to be made by delivering

a copy of the summons and complaint to the attorney general or

leaving them at the attorney general's office in the Capitol

with an assistant or clerk.

    ¶71        If service of a notice of claim by certified mail

strictly   complies            with    Wis.    Stat.    § 893.82,      then     the    "gold

standard" of service——personal service by a sheriff or process

server——complies even more strictly.

    ¶72        In sum, because personal service fulfills the purposes

of Wis. Stat. § 893.82 and is a stricter form of service than

certified mail, interpreting Wis. Stat. § 893.82(2m) to bar an

action    against         a    state    officer,       employee,      or     agent    simply

because notice of claim was served by a process server rather
than by a U.S. postal worker via certified mail would lead to an

absurd    result:         dismissing      an    otherwise         viable     claim    for   a

"harmless procedural bobble[]."                    Reserve Hotels, 790 F.3d at 745

(Posner, J., dissenting).

    ¶73        For       the   reasons    set       forth,    I     dissent    and     write

separately.

    ¶74        I    am    authorized      to    state    that       Justice    ANN    WALSH

BRADLEY joins this dissent.



                                               9
    No.   2014AP1213.ssa




1
