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May 17, 1983


Appeal from a judgment of the Circuit Court for Milwaukee County: Patrick J. Madden, Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Moser

This is an appeal from a judgment of the circuit court which reversed a final decision and order of the Wisconsin Labor and Industry Review Commission (LIRC). We reverse and remand the cause with directions.

The LIRC's final decision and order affirmed a hearing examiner's findings of fact and Conclusions of law which held that the County of Milwaukee (County) had violated ch. 111, subchapter II, Stats., *fn1 by unlawful sexual discrimination against Nancy Williams (Williams) in its use of a 1977 performance evaluation and in its failing to promote her to a county hospital administrative position in September, 1977. The County appealed the LIRC's decision to the circuit court *fn2 which reversed the LIRC's decision and remanded the matter with directions to dismiss the case because the LIRC lacked subject matter jurisdiction. The circuit court held that it lacked subject matter jurisdiction because Williams' complaint of sexual discrimination to the LIRC was not filed within 300 days after the alleged discrimination occurred, pursuant to sec. 111.36(1), Stats. (1977). *fn3 Judgment was entered April 16, 1982, from which the LIRC and Williams appeal.

The dispositive issue on appeal is whether the LIRC had subject matter jurisdiction under sec. 111.36(1), Stats. (1977), over this sexual discrimination complaint because it was filed more than 300 days after the alleged discrimination. Central to this determination is whether sec. 111.36(1) is a statute of limitations which is subject to waiver or whether it is a statute concerning subject matter jurisdiction.

We note that there is no question that Williams' complaint was filed after the 300-day time limit set in the statute. The alleged discrimination occurred on September 17, 1977, and the complaint was filed October 3, 1978. We also note that there is no question that the County, formally and in writing, raised the defense of failure to file the complaint within the statutory time limit in its response to the complaint before the hearing examiner. However, as a result of prehearing conferences employed to simplify the issues, the parties entered into a stipulation on March 7, 1980, which read in part: "1. The unlawful employment practices alleged in the complaint are allegations of a continuing nature and that the complaint was timely filed. Respondent waives all rights to raise the question of timely filing on appeal." [Emphasis added.] On March 13, 1980, the hearing examiner entered an order stating that this stipulation would govern all further proceedings. From this time forward, until the trial court's sua sponte consideration, there was no Discussion about the timeliness issue.

Generally, the scope of review of an appellate court reviewing a circuit court's decision reversing an order of an administrative agency is the same as the circuit court's. *fn4 Questions of law, including the construction, interpretation, or application of a statute, are reviewable ab initio; however, due weight is accorded to the experience, technical competence and specialized knowledge of the administrative agency, except that no special deference is required when this court is as competent as the administrative agency to decide the legal question involved. *fn5

The question of jurisdiction had been resolved before the hearing examiner by the parties' stipulation and the examiner's order adopting it. The circuit court sua sponte raised the issue of whether the LIRC had subject matter jurisdiction. Unstated in that decision is the determination that, if the LIRC did not have subject matter jurisdiction, the reviewing court would also not have subject matter jurisdiction.

The laws of this state require courts to observe the limits of their powers and inquire into their jurisdiction over an action, even though the parties do not raise the issue. *fn6 We determine that the circuit court's sua sponte action regarding this question of law was proper. However, an appellate court is not bound by and need give no deference to a circuit court's determinations of questions of law. *fn7

The question of law determined by the circuit court and to be reviewed ab initio by this court is whether sec. 111.36(1), Stats. (1977), is a statute of limitations or a statute concerning subject matter jurisdiction.

Words of a statute must be given their obvious and ordinary meaning and courts are not to resort to the judicial rules governing construction in the absence of an ambiguity. *fn8 A statute is ambiguous if reasonably well-informed persons can understand it in more than one sense. *fn9

It is apparent that the circuit court and the parties understood the statute to mean different things. The circuit court ruled that the LIRC had never acquired subject matter jurisdiction because the complaint was not timely filed. Prior to the circuit court's action, the parties treated it as a statute of limitation which the County had waived. We note that it was not until the County submitted its appellate brief that it claimed that it had not waived any of its rights under the statute. Accordingly, because we consider the circuit court and the parties to be reasonably well-informed persons who disagree on the interpretation of this statute, we conclude that sec. 111.36(1), Stats. (1977), is ambiguous not only because of the disagreement at the trial court level, but because a fair reading of the language of the statute would or should have confused other well-informed persons. *fn10

Because we determine that this statute is ambiguous, we must apply the common law rules of statutory construction to determine legislative intent. One of the most valuable extrinsic aids of judicial construction is legislative history. *fn11

Section 111.36(1), Stats. (1977), was the result of the governor's budget bill *fn12 introduced in the senate on January 25, 1977, as sec. 1053 of that bill. *fn13 An appendix containing explanatory notes prepared by the Department of Administration *fn14 was attached to this bill. The explanatory note dealing with this statute reads as follows: " Equal Rights Cases. Sections 1007, 1010, 1053 and 1054 of the statutes, relates to placing a statute of limitations on equal rights cases, dismissing equal rights cases for failure to reply and making conciliation in equal rights cases optional." [Emphasis added.] Section 1053 of the governor's proposal went ...

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