text:
    In the Matter of Disciplinary Proceedings Against Seth P. Hartigan, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Seth P. Hartigan, Respondent.
    Supreme Court

      No. 03-2118-D.

      Decided January 19, 2005.

    2005 WI 3
    (Also reported in 690 N.W.2d 831.)
   PER CURIAM.

¶ 1. We review the referee's report and recommendation that Attorney Seth E Hartigan's license to practice law in this state be suspended for six months for his professional misconduct as alleged in the complaint filed by the Office of Lawyer Regulation (OLR) in this court on August 11, 2003. That complaint alleged that Hartigan, who was admitted to practice law in January 1998 and who had no prior disciplinary history, had committed six counts of professional misconduct involving two separate client matters.

¶ 2. Attorney Michael Ash, appointed to act as referee in this matter, scheduled a hearing for August 16, 2004. Hartigan, however, notified the referee on August 6, 2004, that because of his new employment, he would not be able to attend the scheduled hearing and contest the allegations against him.

¶ 3. At the hearing, in Hartigan's absence, the OLR presented testimony from several witnesses and evidence supporting all six of the misconduct allegations set out in its complaint. Referee Ash then granted OLR's motion for default based on Hartigan's failure to appear at that public hearing. The referee has now filed his report, findings of fact, conclusions and his recommendation that Hartigan's license to practice law in this state be suspended for six months for his six counts of professional misconduct. The referee has also recommended that Hartigan be required to pay the cost of these proceedings now totaling $8035.53.

¶ 4. No appeal has been filed by either Hartigan or the OLR.

¶ 5. In summary, Hartigan's misconduct, as alleged in the OLR complaint, involved, among other things, fraud upon the law firm where he worked. It was alleged that Hartigan had accepted a laptop computer worth $2300 as payment for his legal services in representing his client, R.H., who was facing two OWI charges. After Hartigan accepted the laptop computer from R.H., he retained it for his own personal use. Hartigan thereafter failed to appear on behalf of R.H., failed to provide adequate notice that he was withdrawing as R.H.'s counsel, and failed to inform R.H. of the status of his request for an adjournment. In addition, Hartigan filed a motion to withdraw as R.H.'s counsel and misrepresented to the circuit court that R.H. had refused to abide by their written fee agreement. Harti-gan also failed to notify R.H. that he had to appear for a scheduled trial date, and when R.H. failed to appear on that date, a bench warrant was issued and he was arrested.

¶ 6. It was also alleged that after R.H. filed a grievance with OLR, Hartigan made various misrepresentations to OLR staff investigating the grievance including an assertion that his law firm knew he had accepted the laptop computer as a fee for legal services. Hartigan also submitted a misleading document to OLR that he had drafted for a colleague's signature; that document reported that Hartigan had donated the computer to a public service hotline when, in fact, he had not done so.

¶ 7. That course of conduct involving client R.H. led to the first four counts of misconduct as alleged in OLR's complaint.

¶ 8. With respect to the second client matter, the OLR complaint alleged that Hartigan had been retained to represent D.B. who was, at that time, incarcerated at Taycheedah. D.B.'s father paid Hartigan an initial retainer of $750 for his assistance at her upcoming parole hearing. Hartigan wrote to D.B. arranging to meet with her at the prison on March 7, 2002 but he failed to do so, and he did not call her or anyone at the prison to inform D.B. that he would not be there. In a subsequent telephone conversation with D.B., Hartigan discussed two pro se matters she had filed, but he did not discuss with D.B. her upcoming parole hearing. Hartigan told D.B. that he would get back to her at a later date to discuss and prepare for that hearing, but did not do so.

¶ 9. During his telephone conversation with D.B., Hartigan asked her to send him her paperwork on the two pro se matters she had filed; he told D.B. that he would look at the documents, copy them, and then return them to her as soon as possible. D.B. mailed the documents to Hartigan but he did not send them back as he had promised.

¶ 10. Subsequently, Hartigan agreed to meet with D.B. three days before her scheduled parole hearing; however, he failed to appear at that meeting and did not call D.B. to inform her that he would not appear on her behalf at the parole hearing. It was also alleged that Hartigan did not otherwise contact D.B. or do anything to assist or help her prepare for her parole hearing; as a result, D.B. attended the parole hearing by herself without counsel. D.B. was not granted parole and she served the remainder of her sentence until her mandatory release date.

¶ 11. That course of conduct involving client D.B. led to the remaining two counts of misconduct alleged by the OLR in its complaint.

¶ 12. After hearing testimony and receiving evidence at the hearing in this matter, the referee reached the following conclusions of law:

REGARDING CLIENT R.H.
• ¶ 13 By accepting a laptop computer as payment for legal fees and by retaining it and using it solely for his own benefit, without disclosure to, the knowledge of, consent of, or permission from, his employer, Hartigan engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation and thereby violated SCR 20:8.4(c).
• ¶ 14 By falsely informing the OLR in the course of its investigation that his employer was aware that he had accepted a laptop computer from R.H. as payment for legal services, Harti-gan made a misrepresentation in a disclosure to the OLR in the course of its investigation and thereby violated SCR 22.03(6).
• ¶ 15 By failing to inform or send a copy of his motion to withdraw to his client R.H., and by failing to timely inform R.H. of the status of his request for an adjournment of a scheduled court hearing, Hartigan failed to take steps to the extent reasonably practicable to protect his client's interest upon termination of his representation and thereby violated SCR 20:1.16(d).
• ¶ 16 By representing to the court in his motion to withdraw and papers accompanying it, that his client, R.H., had failed to abide by the terms of a written fee agreement when Hartigan knew this to be false, Hartigan knowingly made a false statement of fact to a tribunal and thereby violated SCR 20:3.3(a)(l).
REGARDING CLIENT D.B.
• ¶ 17 By failing to meet with his client, D.B., on March 7,2002, or at any other time to advise her on, and prepare her for, her parole hearing, and by failing to consult with her promptly about his willingness to represent her in the pro se cases, Hartigan failed to explain a matter to his client to the extent reasonably necessary to permit the client to make informed decisions regarding her representation and thereby violated SCR 20:1.4(b).
• ¶ 18 By failing to return D.B.'s papers to her for more than two months despite multiple requests that he do so, Hartigan failed to comply promptly with his client's reasonable requests for information and thereby violated SCR 20:1.4(a).

¶ 19. After determining that Hartigan had committed the six counts of misconduct as alleged in the OLR complaint, the referee recommended that Hartigan's license to practice law in this state be suspended for a period of six months as a sanction for this course of serious misconduct. According to the referee, a six-month suspension would be comparable to the level of sanctions imposed in prior disciplinary cases such as Disciplinary Proceedings Against Horvath, 212 Wis. 2d 678, 568 N.W.2d 776 (1997); Disciplinary Proceedings Against Usow, 214 Wis. 2d 596, 571 N.W.2d 162 (1997); Disciplinary Proceedings Against Landau, 147 Wis. 2d 802, 434 N.W.2d 93 (1989); and Disciplinary Proceedings Against O'Neill, 117 Wis. 2d 347, 343 N.W.2d 807 (1984). The respondents in all those prior cases had received six-month suspensions for similar types of misconduct involving misrepresentation, misappropriation, failure to cooperate with OLR's investigation, and client neglect. Concluding that a similar six-month suspension was appropriate in this case, Referee Ash explained:

As the evidence indicates, Hartigan breached duties to just about everyone: his law firm, a colleague at his law firm, his clients, tribunals before which he was appearing, and the OLR. Moreover, he more than once attempted to lie his way out of troublesome situations. At least one of his clients [R.H.] was arrested at his home and jailed, probably by reason of Hartigan's false statements to a court and callous indifference to the fate of R.H. (whom he had virtually abandoned). A second [D.B.] — imprisoned and desperate for legal services for which her father had paid — got none and went for weeks without legal papers she deemed critical and which she had trustfully placed in Hartigan's hands.
Furthermore, during the investigative portion of the disciplinary process, Hartigan intentionally made false statements and submitted false and misleading evidence to the OLR's investigators. Finally, there is nothing in the record that suggests remorse on the part of Hartigan or even any understanding or acknowledgment of the wrongful nature of his conduct. Referee's Report at 15-16.

¶ 20. After our review of the record, we adopt the referee's findings of fact and conclusions of law and accept the referee's recommendation that Hartigan's license to practice law in this state be suspended for a period of six months as a sanction for his numerous acts of misconduct. The lawyer regulation system in this state has been established to, among other things, "protect the public from misconduct by persons practicing law in Wisconsin." See Preamble to SCR Chapter 21. We view Hartigan's professional misconduct as serious infractions of the rules governing lawyers' professional behavior and responsibilities. We also agree that Har-tigan shall pay the costs associated with this disciplinary proceeding now totaling $8035.53.

¶ 21. IT IS ORDERED that the license of Attorney Seth B. Hartigan to practice law in Wisconsin is suspended for a period of six months, effective the date of this order.

¶ 22. IT IS FURTHER ORDERED that Attorney Seth B. Hartigan shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.

¶ 23. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Seth B. Hartigan pay the OLR the cost of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Seth B. Hartigan to practice law in Wisconsin shall remain suspended until further order of this court.

¶ 24. LOUIS B. BUTLER, J., did not participate.

       SCR 20:8.4(c) provides: "(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 20:1.16(d) provides: "(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

       SCR 20:3.3(a)(l) provides: "(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal."

       SCR 20:1.4(b) provides: "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

       SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."


source: Caselaw Access Project

author: LOUIS B. BUTLER, JR., J.

license: Public Domain

text:
    Mared Industries, Inc., Plaintiff-Appellant, v. Alan Mansfield, individually, and d/b/a Diamond Blade Warehouse, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 03-0097.

      Oral argument September 9, 2004.

    Decided January 20, 2005.

    2005 WI 5
    (Also reported in 690 N.W.2d 835.)

      For the defendants-respondents-petitioners there were briefs by Michael J. Cohen, Catherine R. Grogan and Meissner Tierney Fisher & Nichols, S.C., Milwaukee; and Glenn L. Udell and Brown, Udell & Pomer-antz, Ltd., Chicago, IL, and oral argument by Michael J. Cohen.

    For the plaintiff-appellant there was a brief by Christopher J. Conrad, Mark S. Nelson and Nelson, Connell & Conrad, S.C., Brookfield, and oral argument by Christopher J. Conrad.

   LOUIS B. BUTLER, JR., J.

¶ 1. Alan Mansfield seeks review of a portion of the court of appeals' decision that concluded (1) Wis. Stat. § 801.11(l)(d) (2001-02) allows substituted service on a natural person's agent; and (2) service on Mansfield's purported agent under that provision was proper because the process server reasonably relied on the purported agent's representations that he was authorized to accept service for Mansfield. Mared v. Mansfield, No. 03-0097, unpublished slip op., ¶¶ 12, 19 (Wis. Ct. App. Nov. 4, 2003). Mansfield argues the court of appeals erred by interpreting § 801.11(l)(d) in a manner that allowed service on a natural person's agent without authorization from "any other statute." Alternatively, Mansfield contends that even if § 801.11(1) (d) generally allows service on a natural person's agent, the court of appeals erred by essentially concluding apparent authority satisfies § 801.11(l)(d)'s requirement that the agent be "authorized by appointment" to accept service of summons. Mansfield submits that the appropriate standard is actual express authority.

¶ 2. We agree with the court of appeals that Wis. Stat. § 801.11(l)(d) permits substituted service on a natural person's agent. However, we conclude the court of appeals erred by determining that apparent authority satisfies Wis. Stat. § 801.11(l)(d)'s "authorized by appointment" standard. We hold that "authorized by appointment" requires the principal to provide an agent with actual express authority to accept service of summons for the principal. Accordingly, we reverse the court of appeals' decision and remand this matter to the trial court.

I

¶ 3. Mansfield is the sole shareholder and president of Diamond Blade Warehouse, Inc., an Illinois corporation located in Buffalo Grove, Illinois. On June 5, 2002, Mared filed a complaint against Mansfield individually and doing business as Diamond Blade Warehouse, alleging breach of contract and intentional interference with contractual relations.

¶ 4. On June 10, William Monsen, an Illinois process server, went to the warehouse and told a receptionist he had a summons and complaint to serve on Mansfield. The receptionist asked Monsen to wait while she called someone. A few minutes later Michael Levy, a Diamond Blade employee, appeared and identified himself as director of operations and asked how he could help Monsen. According to Monsen, he indicated to Levy that he had court documents to serve on Mansfield. Monsen testified that Levy stated that he was authorized to accept service on behalf of Mansfield. At that point, Monsen said he reiterated that he had to serve Mansfield personally, but Levy again indicated that he was authorized to accept the summons on Mansfield's behalf. Satisfied with Levy's representations, Monsen gave Levy the papers and explained that an action had been initiated against Mansfield and that he had 45 days to answer. Monsen then left and later completed an affidavit of service that reflected he served Mansfield by leaving copies of the summons and complaint with Levy, "a registered agent or agent of the company" who "insisted that he has full authorization from Mr. Mansfield to accept these documents on behalf of Mr. Mansfield."

¶ 5. After Mansfield's time to answer passed, Mared moved for a default judgment, which the trial court granted on August 5. On August 22, Mansfield filed a motion to reopen the judgment on the grounds that he was not properly served. Mansfield submitted an affidavit that stated he did not authorize Levy to accept summons and that Levy was not his agent.

¶ 6. At the motion hearing on September 9, Mon-sen testified he served Levy because of Levy's clear and repeated representations that he was authorized to accept service for Mansfield. Neither Mansfield nor Levy testified.

¶ 7. On September 19, the Milwaukee County Circuit Court, Honorable Maxine A. White, vacated the default judgment. Monsen's testimony notwithstanding, the circuit court concluded Mansfield should have been served personally, pursuant to Wis. Stat. § 801.11(l)(a), or by leaving a copy of the summons at his abode with either a competent family member over the age of 14 or an adult currently residing at the abode, pursuant to § 801.11(l)(b)l and lm. Because Monsen left the summons at Mansfield's workplace and not his abode, the circuit court concluded the service was ineffective. The circuit court did not reach the issues of whether Levy was Mansfield's agent and whether substituted service on an agent was permissible under § 801.11(l)(d) because, apparently, Mared did not raise them. The circuit court later dismissed Mared's action for lack of personal jurisdiction over Mansfield.

¶ 8. Mared appealed, and the court of appeals reversed. The court of appeals concluded Wis. Stat. § 801.11(l)(d) permitted substituted service on a natural person's authorized agent. Mared, No. 03-0097, unpublished slip op., ¶ 12. The court further concluded that it was reasonable for Monsen to believe Levy was authorized to accept the summons for Mansfield. Id., ¶ 19. Thus, the court of appeals upheld the circuit court's implicit finding that Levy was Mansfield's agent. Although Mansfield submitted an affidavit asserting Levy was not his agent and that he did not authorize Levy to accept process, the court of appeals determined the affidavit was conclusory and could not disprove Monsen's reasonable belief that Levy was authorized to accept service on behalf of Mansfield. Id., ¶¶ 16, 19. Mansfield seeks review of that portion of the court of appeals' decision.

HH i — 1

¶ 9. Granting, and granting relief from, a default judgment rests within the circuit court's discretion. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 63, 253 Wis. 2d 238, 646 N.W.2d 19; Holman v. Family Health Plan, 227 Wis. 2d 478, 483, 596 N.W.2d 358 (1999). "A circuit court properly exercises its discretion when it considers the relevant facts, applies the correct law, and articulates a reasonable basis for its decision." National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 12, 263 Wis. 2d 649, 665 N.W.2d 198 (citations omitted). If the circuit court decision involves a question of law, " 'we review the question of law de novo and reverse if the exercise of discretion is based on an error of law.'" Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 225, 594 N.W.2d 370 (1999) (citations omitted).

¶ 10. "The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction." Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 531 (1976). "Whether service of a summons is sufficient to obtain personal jurisdiction over a defendant involves the interpretation and application of a statute to undisputed facts and is reviewed as a question of law." Useni v. Boudron, 2003 WI App 98, ¶ 8, 264 Wis. 2d 783, 662 N.W.2d 672. The purpose of statutory interpretation is to determine what a statute means so that it may be given its full, proper, and intended effect. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the statute's language. Id., ¶ 45. Generally, language is given its common, ordinary, and accepted meaning. Id. If the meaning is plain, we ordinarily stop the inquiry. Id. Further, we consider language "in the context in which it is 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., ¶ 46. If this process yields a plain meaning, then there is no ambiguity and the statute is accordingly applied. Id.

hH HH

¶ 11. The first issue is whether Wis. Stat. § 801.11(l)(d) generally allows service on a natural person's agent. That section provides:

A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over, a defendant hy service of a summons as follows:
(d) In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized hy appointment or by law to accept service of the summons for the defendant.

Mansfield argues the phrase "any other statute" plainly modifies both "upon the defendant" and "upon an agent." Thus, Mansfield interprets the statute to allow service (1) by serving the summons in a manner specified by any other statute upon the defendant; or (2) by serving the summons in a manner specified by any other statute upon an agent authorized by appointment or law to accept service. We disagree.

¶ 12. As did the court of appeals, we read this section as clearly providing a distinct ground for effectuating service upon "an agent authorized by appointment or by law to accept service of the summons for the defendant." From the statute's face, we do not interpret Wis. Stat. § 801.11(l)(d) as requiring service on an agent to be linked to "any other statute." Thus, we read the statute as providing the following two grounds for carrying out service: (1) by serving the summons in a manner specified by any other statute upon the defendant; or (2) by serving the summons upon an agent authorized by appointment or by law to accept service of the summons for the defendant.

¶ 13. Our reading does not break new ground. On several different occasions, this court has commented on what is now Wis. Stat. § 801.11(l)(d) and arrived at the same conclusion. In Punke v. Brody, 17 Wis. 2d 9, 14, 115 N.W.2d 601 (1962), this court viewed the predecessor to § 801.11(1)(d), Wis. Stat. § 262.06(l)(d) (1959), as allowing "service upon an agent authorized by appointment to accept service of summons for the defendant" without referring to "any other statute." There, Punke initiated an action against Brody, an out-of-state resident, and served the summons and complaint on Nathan Altman, "Agent for Harry Brody," in Wisconsin. Id. at 10. This court concluded that service on Brody's agent was defective because the service statute at that time, Wis. Stat. § 262.08(3) (1953), required either "a direct and actual delivery of the papers to the defendant himself by the one making service," or "le[aving] [the papers] at defendant's usual place of abode in the presence of a competent member of the family at least fourteen years old." Id. at 11-12. At that time, there was no provision which provided for substituted service on a natural person's agent.

¶ 14. In its later discussion, and particularly important here, the Punke court observed that the recently enacted Wis. Stat. § 262.06(l)(d) (1959), now Wis. Stat. § 801.11(l)(d), "although inapplicable to this case, expressly authorizes service upon an agent authorized by appointment to accept service of summons for the defendant." Id. at 14. The court did not bind this provision to "any other statute."

¶ 15. This court returned to what is now Wis. Stat. § 801.11(l)(d) four years later in Howard v. Preston, 30 Wis. 2d 663, 668, 142 N.W.2d 178 (1966), and again viewed subsection (l)(d)'s agency provision in isolation from "any other statute." In Howard, a process server personally delivered a summons to the plaintiffs husband after the husband purportedly represented to the server he would accept service on behalf of his wife, the plaintiff. Id. at 665-67.

¶ 16. As will be discussed more in depth in connection with the next issue, this court concluded the husband's authority to accept process had not been established. What is significant here, however, was that the Howard court, as did the Punke court, read the agency clause in what is now Wis. Stat. § 801.11(l)(d) apart from "any other statute." Howard, 30 Wis. 2d at 668. The court isolated subsection (l)(d) to "provide[] for service of a summons upon an agent authorized by law to accept service of the summons for the defendant." Id.

¶ 17. Consistent with Howard, and underlying this court's decision in Fontaine v. Milwaukee County Expressway Commission, 31 Wis. 2d 275, 279, 143 Wis. 2d 3 (1966), was the acceptance that agency service under what is now Wis. Stat. § 801.11(l)(d) was not joined by "any other statute." In that case, attorneys who represented Fontaine in a matter before the condemnation commission accepted, as Fontaine's attorneys, a notice of an appeal from the commission to the circuit court. Id. at 276. At issue was whether the attorneys were Fontaine's agents for purposes of accepting service under what is now § 801.11(l)(d). Id. at 278. The court concluded they were, and in so doing reasoned the attorneys' "prior representation [of Fontaine] can be a factor in determining whether an agency had been created which enabled her attorneys to accept process under sec. [801.11(l)(d)]." Id. at 279.

¶ 18. The court's conclusion was not tied to "any other statute" that allowed service upon an individual's agent. Indeed, the court had already concluded that a separate statute that allowed for service on an attorney who made an appearance in an "action or proceeding," Wis. Stat. § 269.37 (1965), was inapplicable because the matter before the condemnation commission was neither an action nor a proceeding. Id. at 278. Consequently, the court's resolution of the appeal stemmed solely from what is now Wis. Stat. § 801.11(l)(d).

¶ 19. Several years later, in Miller v. Smith, 100 Wis. 2d 609, 619, 302 N.W.2d 468 (1981), this court, for the first time, explicitly severed the two clauses in Wis. Stat. § 801.11(1) (d) and attributed the "any other statute" language solely to service upon a defendant. In Miller, this court concluded that a John Doe complaint against an unknown state employee had to be served pursuant to Wis. Stat. § 801.11(1) to obtain personal jurisdiction over the unknown employee before a default judgment could be issued. Emphasizing that the plaintiff had not argued the service on the attorney general constituted agency service under subsection (l)(d), this court stated:

Sec. 801.11(1), Stats., governs the manner in which a court may obtain personal jurisdiction over an individual. Under this provision, service upon an individual may only be obtained by: (1) personally serving the summons upon the defendant; (2) leaving a copy of the summons at the defendant's usual place of abode with a member of the family who is competent, at least 14 years of age, and informed of the contents; (3) publication and mailing (mailing may be dispensed with if the post office address cannot be ascertained with reasonable diligence); or (4) upon an agent authorized to accept service or in accord with any other statute specifying a manner of service upon an individual defendant. (Emphasis added).

Id. at 619. Thus, this court understood subsection (l)(d) as providing two distinct grounds for effectuating service, with only service on the defendant being modified by "any other statute."

¶ 20. Therefore, from the time of Wis. Stat. § 801.11(l)(d)'s enactment nearly half a century ago, this court has recognized that service on a natural person's agent under Wis. Stat. § 801.11(l)(d) constitutes an altogether independent ground to effectuate service on a natural person. Admittedly, the cases above expressed an understanding of subsection (l)(d) without scrutinizing the statute's language. Either of two conclusions can be drawn from this: (1) all of the cases are merely premised on an assumption, possibly false, that "any other statute" does not modify the agency provision; or (2) a detailed construction of subsection (l)(d) was unnecessary because it was facially clear to the litigants and to this court that the agency provision does not require authorization from "any other statute." We affirm the latter conclusion here.

IV

¶ 21. The second issue involves what "an agent authorized by appointment" means in Wis. Stat. § 801.11(1) (d). Mansfield takes issue with the court of appeals seeming conclusion that this phrase includes "apparent authority." He argues the phrase "authorized by appointment" requires a showing of actual authority. We agree with Mansfield.

¶ 22. Before turning to our analysis, we pause to distinguish apparent authority from actual authority. Apparent authority stands in contrast to actual authority. Restatement (Second) of Agency § 7 cmt. c (1958). On the one hand, apparent authority binds a principal to acts of another who reasonably appears to a third person to be authorized to act as the principal's agent, because of acts of the principal or agent if the principal had knowledge of those acts and acquiesced to them. Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 203, 423 N.W.2d 828 (1988). Thus, because apparent authority stems from a third party's reasonable observations, it "is not necessarily coincidental with authority." Restatement (Second) supra § 8 cmt. e.

¶ 23. On the other hand, actual authority "is the power of the agent to do an act... on account of the principal which, with respect to the principal, he [or she] is privileged to do because of the principal's manifestations to him [or her]." Id. at § 7 cmt. a. A third person's reasonable observations of an agent's authority have no bearing on determining the scope of an agent's actual authority. Wisconsin Stat. § 801.11(l)(d) requires actual authority for the following three reasons.

A

¶ 24. Compared to other service of summons statutes, Wis. Stat. § 801.11(l)(d) does not contain any variations of the word "apparent." See, e.g., § 801.11(4)(b) (allowing service "[i]n lieu of [personally serving a political corporation' or other body politic's specified officers, directors, or agents], the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.") (emphasis added), and Wis. Stat. § 801.11(5)(a) (allowing service "[i]n lieu of [personally serving the summons upon an officer, director, or managing agent], the copy may be left. . . with the person who is apparently in charge of the office.") (emphasis added). Thus, were we to agree that apparent authority satisfied § 801.11(1)(d)'s "authorized by appointment" standard, we would have to add the word "apparently" to modify "authorized by appointment." When § 801.11(l)(d) is viewed in context, it is clear that the legislature specifically omitted this language.

B

¶ 25. We find further support for the conclusion that "authorized by appointment" requires actual authority in Punke and Howard. As noted above, in Punke, a process server served the defendant's purported agent after the purported agent told the process server he was the defendant's agent and was authorized to accept service on the defendant's behalf. Punke, 17 Wis. 2d at 10. In the context of determining whether the defendant consented to jurisdiction by appointing an agent within this state, the court observed, "The circuit court made no finding that as a matter of fact [the defendant] authorized [the agent] to accept service for [the defendant]." Id. at 14. Although the process server testified that the agent stated he had authority to accept service, this court determined that "[a]n agent's authority may not be shown by testimony describing his declarations to third persons." Id. at 14.

¶ 26. Similarly, in Howard, 30 Wis. 2d at 668, this court reaffirmed that an agent's authority cannot be established by declarations made to third parties in context of what is now Wis. Stat. § 801.11(l)(d). Again, in that case, a process server personally served the defendant's husband after he stated he had authority to accept service for his wife. The process server testified accordingly, but the husband disputed the server's testimony and stated he never had authority from his wife to accept process on her behalf. Id. at 667. The trial court found the husband's testimony incredible and attributed the husband's acceptance of service to his wife. Id.

¶ 27. This court reversed, concluding that the process server's testimony failed to establish the husband had authority to accept service for his wife. Id. at 668-69. This court stated, "Under [now § 801.11(l)(d)],... it maybe claimed [the husband] was the authorized agent of his wife. [The husband], however, testified he had no such authority or appointment." Id. at 668. The court also stated the record did not support a finding of authority, even though the process server testified that the husband indicated he could admit process for his wife. Id. As in Punke, the process server's reasonable belief regarding the purported agent's authority could not establish the agent's authority to accept service for the principal. See id.

¶ 28. Thus, in both Punke and Howard, this court precluded establishing authority through the testimony and perceptions of a third party. Because the hallmark of establishing apparent authority rests with the reasonable observations of third parties, these cases essentially foreclosed apparent authority as the appropriate standard for establishing an agent's authority to accept process.

C

¶ 29. Finally, we turn to Federal Rule of Civil Procedure 4(e)(2). See Ness v. Digital Dial Communications., Inc., 227 Wis. 2d 592, 602 n.9, 596 N.W.2d 365 (1999) (acknowledging that we may consider analogous federal rules and case law to guide our interpretation of the Wisconsin Rules of Civil Procedure). Rule 4(e)(2) contains the same "authorized by appointment" language, and cases construing that provision have concluded "that an actual appointment for the specific purpose of receiving process normally is expected." 4A Wright and Miller, Federal Practice and Procedure § 1097. For this reason:

[C]laims by an agent of having authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant to the court's jurisdiction; there must be evidence that the defendant intended to confer that authority upon the agent in order to satisfy the terms of Rule 4(e)(2).

Id. (footnotes omitted.) Thus, federal procedural jurisprudence recognizes that actual authority, not apparent authority, is the proper standard. Although we are not bound by interpretations of federal statutes that are similarly worded, we find those interpretations to be persuasive.

¶ 30. Based on the statute's language in context, this court's prior decisions in Punke and Howard, and federal jurisprudence, we conclude that an agent's representations to a process server, regardless of the reasonableness of the process server's reliance on those representations, is insufficient to establish the agent's authority to accept service on the principal's behalf. In other words, apparent authority is insufficient to bind a principal to service on an agent. Wisconsin Stat. § 801.11(l)(d)'s "authorized by appointment" language, therefore, refers only to actual authority. We now focus on what actual authority means in § 801.11(l)(d)'s context.

V

¶ 31. In Skrupky v. Elbert, 189 Wis. 2d 31, 43-44, 526 N.W.2d 264 (Ct. App. 1994), the court of appeals recognized that actual authority encompasses both express and implied authority. The court stated:

Actual authority is express when found within the explicit agency agreement itself, that is, the communication or contract between the principal and the agent. Actual authority is implied when the agent, not the third party, reasonably believes he or she has authority as a result of the action of the principal. An agent has the implied authority to do such acts as are usual, appropriate, necessary or proper to accomplish the purpose and objects of the agency.

Id. at 44 (citations omitted). Mansfield urges this court to conclude the actual authority must be express, whereas Mared claims that implied actual authority will suffice. We agree with Mansfield.

¶ 32. Turning to the statute's language, Wis. Stat. § 801.11(1) (d) allows service "upon an agent authorized by appointment or by law to accept service of the summons for the defendant." From the statute's face, it is evident that the source of an agent's authorization to accept service stems from the principal's appointment. "Appointment," however, is not defined in the statute. "If a word is not defined in the statute, our next recourse has normally been to use a recognized dictionary to determine the common and ordinary meaning of the word." State v. Polashek, 2002 WI 74, ¶ 19, 253 Wis. 2d 527, 646 N.W.2d 330. The common dictionary definition of "appointment" means the "designation of a person to hold a nonelective office or perform a function." Webster's Third New Int'l Dictionary 105 (unabr. 1986). Black's Law Dictionary is in accord, where it defines "appointment" as "[t]he act of designating a person, such as a nonelected public official, for a job or duty." Black's Law Dictionary 96 (7th ed. 1999).

¶ 33. After synthesizing these definitions, it is clear that Wis. Stat. § 801.11(l)(d) requires the principal to designate the agent to perform the function, job, or duty of accepting service. We conclude that "designating the agent to perform the function of accepting service" is simply another way of saying the principal must establish an explicit agency agreement. See Skrupy, 189 Wis. 2d at 43. While such a designation need not be in writing, it must be set forth in clear and unambiguous terms. In other words, the agent must have actual express authority.

¶ 34. Our conclusion is bolstered by the policy grounding service, namely "to ensure that a defendant receives reasonable notice of the action." 2 Callaghan's Wisconsin Pleading and Practice § 14.3, at 228 (4th ed. 2002). Personal service is the preferred manner of service because it presents the greatest likelihood that the defendant actually receives notice of the action. See id. However, because "[t]he very essence of substituted service is that some person or entity receives process on another's behalf," Leonard v. Cattahach, 214 Wis. 2d 236, 247, 571 N.W.2d 444 (Ct. App. 1997), substituted service diminishes the certainty of a defendant receiving notice. Construing the authorization under Wis. Stat. § 801.11(1) (d) as requiring actual express authority not only encourages plaintiffs to personally serve defendants, it also preserves the policy of ensuring that a defendant receives notice of an action by imputing notice through an agent only in cases where the defendant has actually ceded the preferred manner of personal service.

¶ 35. Turning to the facts of this case, the court of appeals ably summarized Mared's evidence as follows:

[Monsen] testified that he walked into the facility and told the receptionist that he had some court documents that he needed to serve on Mansfield. She asked him to wait a moment and made a phone call. Shortly thereafter, he was approached by a man who identified himself as "Mr. Levy." According to the process server's testimony, he told Levy that he had court documents that he needed to serve on Mansfield. Levy told the process server that he was authorized to accept service of those papers. The process server reiterated that he needed to serve Mansfield personally, and Levy told him that he was authorized to accept them on Mansfield's behalf. After that exchange, he left the copies of the summons and complaint with Levy ....

Mared, No. 03-0097, unpublished slip op., ¶ 15.

¶ 36. Mared's evidence does not support a finding of actual express authority. The only evidence that is germane to establishing Levy's authority, evidence which at this point is uncontroverted, comes from Mansfield's affidavit, wherein Mansfield stated that Levy was not his agent, let alone an agent authorized to accept summons on his behalf. We do recognize that while personal service was an issue that was before the trial court, neither party argued, and the trial court did not consider, the propriety of agency service under Wis. Stat. § 801.11(l)(d). Because this is the first case that not only specifically addresses agency service but defines its scope, we remand this case to the trial court to determine whether Mansfield expressly provided Levy with actual authority to accept service of process from Monsen. The trial court can accept additional evidence in view of the fact that agency service was not previously argued. If Mared can establish that Mansfield entered into an explicit agency agreement with Levy for purposes of accepting service, then service was proper.

VI

¶ 37. In sum, we conclude that Wis. Stat. § 801.11(1) (d) creates an independent ground for substituted service on a natural person's agent. However, the agent must have actual express authority to receive service of a summons on the principal's behalf. Because Mared presented insufficient evidence to establish Levy's actual authority to accept service on Mansfield's behalf, we reverse the court of appeals' decision. We remand this matter to the trial court for further proceedings so that the trial court can determine whether Mansfield expressly authorized Levy to accept service of process.

¶ 38. We pause to recognize and emphasize that this case illustrates how risky it is to attempt to serve a defendant's agent. Because an agent must have actual express authority to accept service of summons under Wis. Stat. § 801.11(l)(d), plaintiffs who choose to effectuate service under this provision had best proceed with extreme care, while being mindful that even the utmost care may not reveal the true scope of an agent's authority. Because the consequences for failing to strictly comply with the statutory rules of service are harsh, see Bendimez v. Neidermire, 222 Wis. 2d 356, 361, 588 N.W.2d 55 (Ct. App. 1998), plaintiffs should err on the side of caution by utilizing the more certain means for effectuating service under Wis. Stat. § 801.11(l)(a)~(c).

By the Court — The decision of the court of appeals is reversed and the matter is remanded to the circuit court for further proceedings consistent with this opinion.

       Wisconsin Stat. § 801.11 provides in pertinent part:
      A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
      (d) In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       The other portion of the court of appeals' decision concluded Mared did not sue Diamond Blade Warehouse, Inc., by naming "Mansfield individually and 'd/b/a' Diamond Blade Warehouse." Mared v. Mansfield, No. 03-0097, unpublished slip op., ¶¶ 12, 19, 23 (Wis. Ct. App. Nov. 4,2003). As Mared has not sought review of the court of appeals' decision concerning Diamond Blade Warehouse, Inc., we do not reach that portion of the court of appeals' decision. Further, our recitation of the facts and discussion are tailored to those that are relevant to Mansfield's appeal.

       There is a factual dispute concerning how many copies of the summons and complaint Monsen served on Levy. Monsen testified that he served Levy with two copies, while Levy averred in an affidavit that Monsen only served one copy.

       Nearly two months after the trial court reopened the default judgment against Mansfield, Levy submitted an affidavit in response to Mared's contention that Diamond Blade Warehouse, Inc., was properly served. In the affidavit, Levy indicated he was an employee of Diamond Blade; Monsen served him with one copy of a summons and complaint; and, if requested, he would appear in court to testify. Although the affidavit related to an issue not before us, we note that the affidavit does not establish Mansfield authorized Levy to accept service^on Mansfield in his individual capacity.

       Wisconsin Stat. § 262.06(l)(d) (1959), is textually identical to § 801.11(l)(d). Section 262.06(l)(d) provided:
      A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 262.05 may-exercise personal jurisdiction over a defendant by service of a summons as follows:
      (d) In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.

       Wisconsin Stat. § 262.08(3) (1953) read:
      For personal service or its equivalent, the summons, and the accompanying complaint or notice aforesaid, if any, shall be served by delivering a copy thereof as follows:
      (3) In all other cases by delivering within the state a copy thereof to the defendant personally; or, if not found, by leaving within the state a copy thereof at his usual place of abode in the presence of some competent member of the family at least fourteen years of age, who shall be informed of the contents thereof.

       This court in Howard also suggested that a principal's ratification of the agent's acceptance of service would satisfy Wis. Stat. § 801.11(1)(d). See Howard v. Preston, 30 Wis. 2d 663, 668-69, 142 N.W.2d 178 (1966) ("Even if [the husband] did not have authority to admit service of the summons for his wife when he said he would, such exercise of authority might have been ratified by the [wife]. But there is no proof of such ratification upon which to estop the [wife]." (citations omitted)). As ratification is not before this court in this case, we leave resolution of that issue for a later day.

       Wisconsin Stat. § 269.37 (1965) stated:
      When a party to an action or proceeding shall have appeared hy an attorney the service of papers shall he made upon the attorney. When a defendant shall not have appeared in person or by attorney service of notice or papers in the ordinary proceedings in an action need not be made upon him unless he be imprisoned for want of bail.

       Wisconsin Stat. § 801.11(3) (1979) provided for the service of a summons and cpmplaint upon the state as follows:
      by delivering a copy of the summons and of the complaint to the attorney general or leaving them at the attorney general's office in the capítol with an assistant or clerk.

       In addition to our previous case law, the Wisconsin treatises have uniformly accepted that Wis. Stat. § 801.11(l)(d) allows service on an agent who is authorized to accept service without reference to "any other statute." See Jay E. Grenig & Daniel D. Blinka, Wisconsin Civil Rules Handbook, § 801.11:3, at 47 (2003 ed.) ("[Wis. Stat. § 801.11(l)(d)] permits service of a summons in any manner provided by special statutes authorizing the exercise of personal jurisdiction. Paragraph (d) also gives the process server the option of serving an 'agent authorized by appointment or by law to accept service of the summons for the defendant.'"); see also 3 Jay E. Grenig, Wisconsin Practice: Civil Procedure, § 111.6, at 120 (3d ed. 2003) ("Subsection (1), Paragraph (d) expressly permits service of a summons in any manner provided by special statutes which authorize the exercise of personal jurisdiction. Paragraph (d) also gives the process server the option of serving an 'agent authorized by appointment or by law to accept service of the summons for the defendant.'"); John E. Conway and Daniel O. Bernstine, Wisconsin and Federal Civil Procedure, § 2.07 (1986) ("In the case of a natural person, service may be personal, substituted (on an agent, such as a member of the family at defendant's abode or on an agent appointed by the defendant or by law for service), or by publication.").

       As already noted, the court of appeals concluded that the evidence was sufficient to support a finding that Levy was Mansfield's agent because the process server reasonably relied on Levy's representations that he was authorized to accept the summons for Mansfield. Mared, No. 03-0097, unpublished slip op., ¶ 19.
      The court of appeals also relied on Fontaine v. Milwaukee County Expressway Commission, 31 Wis. 2d 275, 280, 143 N.W.2d 3 (1966), as requiring "a prima facie showing of agency, and a lack of proof to the contrary, for service to he proper under Wis. Stat. § 801.ll(l)(d)." Mared, No. 03-0097, unpublished slip op., ¶ 15. Fontaine, however, involved "special circumstances," and, accordingly, its evidentiary framework for establishing agency is confined to those circumstances.
      As briefly touched on before, Fontaine concerned when attorneys could accept service as agents of their clients. This court held that "[w]hen an attorney-at-law formally acknowledges the receipt of a document as an attorney on behalf of a client, it may be presumed (in the absence of contradiction) that he was authorized by the client to accept it." Id. at 279. Thus, "when an attorney acknowledges receipt of delivery as an attorney on behalf of a client, the legend itself raises a prima facie case of valid service. If there were in fact no authority, proof thereof must be offered." Id. at 280 (emphasis in original). Because Fontaine did not testify that the attorneys did not have authority to accept service for her, the court concluded the prima facie showing of agency service under now Wis. Stat. § 801.11(l)(d) was sufficient.
      As this court observed in Gangler v. Wisconsin Electric Power Company, 110 Wis. 2d 649, 657, 329 N.W.2d 186 (1983), "it is well-accepted, black-letter law that an attorney is not authorized by general principles of agency to accept on behalf of a client service of a process commencing an action." Nevertheless, this court held "that when notice of appeal is given to the attorney who represented a party in the condemnation proceedings and when 'special circumstances' are present, the circuit court has jurisdiction to proceed." Id. at 658. The court noted
        Fontaine represented one of those "special circumstances," that is "when an attorney at law formally acknowledges the receipt of a document as an attorney on behalf of a client." Id. (quoting Fontaine, 31 Wis. 2d at 280).
      Thus, Fontaine's discussion regarding a prima facie showing of agency represents "special circumstances" for establishing an attorney as a client's agent under Wis. Stat. § 801.11(l)(d). Accordingly, we confine Fontaine's applicability. However, we note that Mansfield argues that we should overturn Fontaine because, he asserts, the legislature has since enacted Wis. Stat. § 801.14(2) to prohibit service of a summons on an attorney. This issue is not squarely before us; hence, we leave it for a later day.

       The court of appeals was concerned that "[i]f a process server cannot rely upon repeated confirmations from an individual regarding his or her authority to accept service on behalf of another individual, and a reasonable belief that that person is actually authorized to do so, the option of serving an individual's authorized agent would be rendered impractical and almost futile." Mared, No. 03-0097, unpublished slip op., ¶ 19. It is a valid concern, and one that may be correct, but the legislature is the appropriate body to rectify any such shortcomings. See State ex rel. United States Fidelity & Guaranty Co. v. Smith, 184 Wis. 309, 316, 199 N.W. 954 (1924) ("It is not the function of thé court to add language to a statute or to add exceptions because the statute may to the court seem unwise.").

       Rule 4(e)(2) reads:
      Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States ... by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (Emphasis added).

        See, e.g., Schultz v. Schultz, 436 F.2d 635, 637, 639 (7th Cir. 1971) (requiring actual authority by appointment and recognizing that both Punke v. Brody, 17 Wis. 2d 9, 115 N.W.2d 601 (1962), and Howard are consistent with federal law); Select Creations v. Paliafito America, 830 F. Supp. 1223, 1234 (E.D. Wis. 1993) ("[T]he principal arising from Rule 4, Fed. R. Civ. E, [is] that, absent actual authority to act as an agent for the service of process, an agent is not authorized to accept service on behalf of her principal.")

       The court of appeals also directed attention to the Restatement (Second) of Agency § 7 cmt. c (1958), which similarly provides:
      It is possible for a principal to specify minutely what the agent is to do. To the extent that he does this, the agent may be said to have express authority. But most authority is created by implication.... These powers are all implied or inferred from the words used, from customs and from the relations of the parties. They are described as "implied authority."

        Skrupky v. Elbert, 189 Wis. 2d 31, 44 n.5, 526 N.W.2d 264 (Ct. App. 1994).

       The concept of agency service "authorized by . .. law to accept service of the summons for the defendant" is not an issue in this case.

       Absent specific authority by statute or rule that would define appointment to include actual implied service upon an agent, we decline the invitation to extend the rule in this fashion.

       In Punke, 17 Wis. 2d at 14, this court required the trial court to find as a matter of fact that the principal authorized the agent to accept service for the principal. This factual determination must be made while bearing in mind that an agent's authority "may not be shown by testimony describing [the agent's] declarations to third persons." Id. Similarly, a disbelief of the agent's testimony does not supply the necessary proof. Howard, 30 Wis. 2d at 667.


author: PATIENCE DRAKE ROGGENSACK, J.

text:
    In re the Paternity of John R. B.: Barbara B., Petitioner-Respondent, v. Dorian H., Respondent-Appellant-Petitioner.
    Supreme Court

      No. 03-1877.

      Oral argument November 9, 2004.

    Decided January 20, 2005.

    2005 WI 6
    (Also reported in 690 N.W.2d 849.)

      For the respondent-appellant-petitioner there were briefs by Renee E. Mura and Renee E. Mura, S.C., Kenosha, and oral argument by Renee E. Mura.

    For the petitioner-respondent there was a brief by Barbara J. Beardsley, and oral argument by Barbara J. Beardsley.

   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. Because we conclude that retroactive applications of Wis. Stat. § 767.32(lm) and (lr) (2000-01) do not violate Dorian H.'s (Dorian) right to due process, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. In 1982, Dorian and Barbara B. (Barbara) entered into a stipulation that formed the basis of a paternity judgment and child support order. The parties stipulated that Dorian was the father of John R.B. (John), born November 8,1979, and that Dorian would make a payment of $30.00 per week to the clerk of court for John's support. This case arises out of an Order to Show Cause filed by Barbara on April 9, 2001 in Kenosha County Circuit Court, alleging that Dorian violated the 1982 child support order. The Kenosha County Child Support Agency determined that Dorian owes $24,690.00 in child support arrearages and $42,612.90 in interest.

¶ 3. On December 21, 2001, Family Court Commissioner James E. Fitzgerald held an evidentiary hearing, at which both Barbara and Dorian testified. In a written order dated January 21, 2002, the commissioner found that Dorian had not made any child support payments since 1983, but that Dorian had paid John's tuition while John was still a child and attending a private school. The commissioner additionally found that "there was an agreement made between the parties that the mother would not pursue child support in return for the father not having visitation with the child." The commissioner decided that Barbara was "not allowed to recoup the past child support money, as the child is now an adult, and she did not seek such payments while the child was a minor. Equity now demands that [Dorian] not be held to this large amount of child support and arrearages." The commissioner ordered Barbara estopped from pursuing past child support and denied her request for payment of the child support arrearages.

¶ 4. Barbara sought review in circuit court. There, the Honorable Barbara A. Kluka conducted a de novo review of the evidence that had been presented to the commissioner. In an oral decision, the court found that there "was some type of an agreement between [Barbara] and [Dorian] with respect to the payment of child support, visitation issues, and the child's attending [a private school]" and that Dorian directly paid the private school $800 a year through John's sixth grade year. The court concluded that application of the doctrine of equitable estoppel is inappropriate under existing Wisconsin law, specifically Wis. Stat. § 767.32(lr) and the court of appeals decision in Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999). The court explained in its oral decision that Dorian did not meet any of the criteria listed in § 767.32(lr) that would allow credit against a child support arrearage and further determined that retroactive application of § 767.32(lr) is not unconstitutional.

¶ 5. While both the court commissioner and the circuit court found that Barbara and Dorian had an agreement regarding Dorian's child support obligations, neither made a finding as to when that agreement was reached. Dorian, however, alleges that the parties entered into the extrajudicial agreement in 1983.

¶ 6. Dorian appealed to the court of appeals, and the court of appeals affirmed the circuit court decision. Dorian then filed a petition for review, which we granted.

II. DISCUSSION

¶ 7. Dorian argues that it violates his right to due process under the state and federal constitutions to retroactively apply Wis. Stat. § 767.32(lm) and (lr) instead of the law that was in place at the time he alleges that he and Barbara entered into the extrajudicial agreement.

A. Standard of Review

¶ 8. Whether the retroactive application of a statute violates due process is a question of law that we review de novo. Neiman v. American Nat'l Prop. and Cas. Co., 2000 WI 83, ¶ 8, 236 Wis. 2d 411, 613 N.W.2d 160.

B. Revision of Child Support Arrearages

¶ 9. In 1983, the year Dorian alleges that the parties entered into the extrajudicial agreement, the circuit court had the discretion to revise a child support arrearage upon a showing of cause or justification. Schulz v. Ystad, 155 Wis. 2d 574, 593, 598, 456 N.W.2d 312 (1990) (noting this discretionary power of the circuit courts prior to the enactment of Wis. Stat. § 767.32(lm) in 1987); see Rust v. Rust, 47 Wis. 2d 565, 570-73, 177 N.W.2d 888 (1970) (upholding circuit court's cancellation of arrearages because the findings in the underlying child support order had been incomplete); Foregger v. Foregger, 40 Wis. 2d 632, 641-43, 162 N.W.2d 553 (1968) (upholding offset of duplicative child support payments against arrearages). Subsequent to 1983, when the oral modification of support allegedly occurred, Wisconsin appellate courts addressed whether a child support payer was entitled to credit based on expenditures made on the child's behalf and whether an extrajudicial agreement between a child support payer and payee was enforceable.

¶ 10. Whether a child support payer is entitled to credit against court-ordered child support was addressed in 1984, in Hirschfield v. Hirschfield, 118 Wis. 2d 468, 347 N.W.2d 627 (Ct. App. 1984), where the court of appeals held that "a parent ordered to pay child support is not entitled to credit for voluntary expenditures for the child not made in the manner specifically ordered." Id. at 470-71. However, in 1990, we carved out two exceptions to the Hirschfield rule. Schulz, 155 Wis. 2d at 603-04. We identified two circumstances "of an equitable nature," id. at 602, under which the payer's direct expenditures made for a child may be credited: (1) "under compulsion of circumstances" or (2) "with express or implied consent of the custodial parent." Id. at 604. Circuit courts were further instructed to allow credit under these two circumstances only where "manifest injustice" would otherwise result and where a particularized burden of proof, outlined within the decision, was met. Id.

¶ 11. It was not until April 1993, in Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993), that the issue, whether parties' extrajudicial agreement could be enforced against a custodial parent seeking payment of child support arrearages, was addressed by a Wisconsin appellate court. In Harms, the custodial parent sent the child support payer a letter "informing him that she had moved the children to the state of Florida and that she no longer expected him to pay child support or hospital insurance," id. at 782, and as a result of the letter, the child support payer stopped paying child support, id. The custodial parent subsequently brought a contempt motion due to the cessation of child support payments, but we determined that the extrajudicial agreement between the parties was enforceable. Id. at 785. Citing the doctrine of equitable estoppel, we held for the child support payer. Id.

¶ 12. However, later in 1993, Wis. Stat. § 767.32(lr) was created, which provided:

In an action ... to revise a judgment or order with respect to child support or family support, the court may not grant credit to the payer against support due prior to the date on which the action is commenced for payments made by the payer on behalf of the child other than payments made to the clerk of court under s. 767.265 or 767.29 or as otherwise ordered by the court.

1993 Wis. Act 481, § 119 (emphasis added). The same legislative act amended § 767.32(lm), which as amended provided:

In an action ... to revise a judgment or order with respect to child support... the court may not revise the amount of child support... due, or an amount of arrearages in child support... that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.

1993 Wis. Act. 481, § 118 (emphasis added).

¶ 13. Wisconsin Stat. § 767.32(lm) initially was created by 1987 Wis. Act 27, § 2135i, but we construed it to apply only prospectively, so that a child support arrearage that had accrued pursuant to an order entered prior to August 1,1987 was unaffected by the new statute. Schulz, 155 Wis. 2d at 598-99. However, 1993 Wis. Act. 481 brought an explicit reference to child support arrearages to § 767.32(lm), 1993 Wis. Act. 481, § 118, and also required courts to apply both § 767.32(lm) and (lr) "regardless of when the judgment or order under which the arrearages accrued, or the child support... payments are owed, was entered," 1993 Wis. Act. 481, § 9326.

¶ 14. In Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), the court of appeals explained that pursuant to Wis. Stat. § 767.32(lm) and (lr), as respectively amended and created by 1993 Wis. Act. 481, circuit courts "cannot grant credit for direct payments for support made in a manner other than that prescribed in the order or judgment providing for support." Id. at 813. The Fisher court further held that this new law applies retroactively, so that as of its effective date, June 11, 1994, "a court is without discretion to grant credits against arrearages regardless of when the judgment or order was entered." Id. at 814; accord Monicken, 226 Wis. 2d at 129.

¶ 15. More latitude to grant a child support payer credit against an arrearage came in 1997, when the legislature amended Wis. Stat. § 767.32(lr). As amended the subsection provided:

the court may grant credit to the payer against support due prior to the date on which the petition, motion or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.265 or 767.29, in any of the following circumstances ....

1997 Wis. Act 273, § 1 (emphasis added). The legislature then enumerated the circumstances under which such credit could be granted in newly created § 767.32(lr)(b)-(f). 1997 Wis. Act. 273, §§ 3-7. In Mon-icken, the court of appeals made clear that the revised § 767.32(lr) changed the law regarding the granting of credit to child support payers who were in arrears, superceding the Harms and Schulz holdings on that point. Monicken, 226 Wis. 2d at 130-31. Based on 1997 Wis. Act 273, § 10, the Monicken court also held that the 1997 changes to § 767.32 apply retroactively. Id. at 131-32. Therefore, after the law's effective date, which the legislature set at June 25, 1998, a circuit court is permitted to grant credit against child support arrear-ages pursuant only to the limited circumstances enumerated in § 767.32(lr)(b)-(f), regardless of when the underlying child support order was entered. Id. at 131-32.

¶ 16. Dorian does not contest the circuit court's conclusion that none of the circumstances allowing credit against a child support arrearage under Wis. Stat. § 767.32(lr) was met here. Rather, Dorian argues that the retroactive applications of § 767.32(lr) and (lm), which limit a circuit court's power to grant him credit against child support due, violate his right to due process under Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment to the United States Constitution. We disagree.

C. Due Process and Retroactive Legislation

¶ 17. Retroactive legislation is presumed constitutional. Neiman, 236 Wis. 2d 411, ¶ 16. It is the challenger's burden to overcome that presumption, Martin v. Richards, 192 Wis. 2d 156, 200, 531 N.W.2d 70 (1995), by demonstrating the statute's unconstitutionality beyond a reasonable doubt, Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶ 26, 244 Wis. 2d 720, 628 N.W.2d 842.

¶ 18. We have determined that the due process clauses of Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment to the United States Constitution are substantially equivalent. Neiman, 236 Wis. 2d 411, ¶ 8; Martin, 192 Wis. 2d at 198 n.6. The Fourteenth Amendment of the Constitution in pertinent part provides that "[n]o State shall... deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. Xiy § 1. In arguing that retroactive applications of Wis. Stat. § 767.32(lm) and (lr) are unconstitutional, the particular right Dorian appears to be asserting is the right not to be deprived of property, without due process of law.

¶ 19. As the parties correctly note, this court adopted a balancing test to determine whether a retroactive statute comports with due process. Martin, 192 Wis. 2d at 201. The Martin balancing test examines whether the retroactive statute has a rational basis, Matthies, 244 Wis. 2d 720, ¶ 27; Neiman, 236 Wis. 2d 411, ¶ 9, requiring a reviewing court to "weigh the public interest served by the retroactive statute against the private interests that are overturned by it," Martin, 192 Wis. 2d at 201 (citation omitted). "Implicit within this analysis is a consideration of the unfairness created by the retroactive legislation." Id. (citation omitted).

¶ 20. However, our precedent instructs us to determine first whether application of the statute in question to the party challenging the statute actually has a retroactive effect, Matthies, 244 Wis. 2d 720, ¶ 19, Neiman, 236 Wis. 2d 411, ¶ 14; see Martin, 192 Wis. 2d at 199-200, an inquiry that turns on whether the right is "vested," Matthies, 244 Wis. 2d 720, ¶¶ 21-23; see Neiman, 236 Wis. 2d 411, ¶ 14. As noted in Neiman, "[t]he concept of vested rights is 'conclusory — a right is vested when it has been so far perfected that it cannot he taken away by statute.'" Neiman, 236 Wis. 2d 411, ¶ 14 (citation omitted). Only upon concluding that the statute in question "retroactively affects a substantive right that accrued before the passage of the legislation," do we proceed with the Martin balancing test. Matthies, 244 Wis. 2d 720, ¶ 27.

¶ 21. As discussed above, in 1983 the circuit court had discretion to make a revision if cause or justification was shown, but it had no obligation to do so. See supra Section II.B. In 1982, Dorian was ordered to pay child support. The circuit court's discretionary power to reduce or cancel Dorian's arrearages at a particular point in time after that did not vest a right in him to have the arrearages reduced or cancelled. Woodmansee v. Woodmansee, 151 Wis. 2d 242, 248-49, 444 N.W.2d 393 (Ct. App. 1989) (citing Miller v. Miller, 67 Wis. 2d 435, 448, 227 N.W.2d 626 (1975)).

¶ 22. However, because neither party argued that Dorian did not have a vested right, we will assume he did have a vested right and turn to applying the Martin test. We begin by considering the public interest served by retroactive applications of Wis. Stat. § 767.32(lm) and (lr). The retroactive application of legislation must serve a public purpose that is " 'substantial, valid and intended to remedy a general economic or social issue.'" Matthies, 244 Wis. 2d 720, ¶ 31 (quoting Neiman, 236 Wis. 2d 411, ¶ 23).

¶ 23. In reviewing the steps the legislature took to arrive at the current formulations under Wis. Stat. § 767.32(lm) and (lr), we see that its first step in restricting a court's authority to revise past due child support amounts began with 1987 Wis. Act. 27, § 2135i. The revision was made on the recommendation of the Governor's Welfare Reform Commission ["the commission"]. Legislative Reference Bureau Drafting Record for 1987 Wis. Act. 27. The commission recommended implementing "a new federal requirement that prohibits retroactive adjustments to child support orders," Governor's Welfare Reform Commission, Report on Recommendations of the Governor's Welfare Reform Commission 13 (May 22, 1987), apparently referring to 42 U.S.C. § 666(a)(9)(C). The State may have risked jeopardizing its eligibility for certain federal funds if it had not complied. See Schulz, 155 Wis. 2d at 594-95; Woodmansee, 151 Wis. 2d at 246-47. As one commentator has summarized the pertinent legislative history,

the Commission and the Legislature (1) were concerned about the loss of federal.. . funds; (2) wanted to reduce the welfare budget by having non-custodial parents (instead of the state) support their children; and (3) wanted to protect custodial parents from having to return child support payments should the support order later be reduced.

Aaron Bransky, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123, 1138.

¶ 24. Further restriction on retroactive modification of child support arrearages was passed in 1993, which prohibited credit to the obligor against child support arrearages, 1993 Wis. Act. 481, § 119, regardless of when the underlying child support order was entered, id. at § 9326. These amendments were also intended to bring Wisconsin into compliance with federal law. Legislative Reference Bureau Drafting Record for 1993 S.B. 44. Prior to the 1993 statutory changes, the court of appeals had recognized the soundness of a rule prohibiting credit against an arrearage for voluntary expenditures made in a manner not specifically ordered, noting that "[allowing credit for such payments or expenditures would condone the unilateral modification of court orders and interference with the custodial parent's right to decide how support money should be spent." O'Brien v. Freiley, 130 Wis. 2d 174, 181, 387 N.W.2d 85 (Ct. App. 1986) (citing Hirschfield, 118 Wis. 2d at 471). After the 1993 statutory changes, the court of appeals explained that the amendments apparently were based on a public policy determination that "the public interest in addressing the problem of nonpayment of child support is best served by limiting payments to those made in accordance with the divorce judgment. This policy fixes arrearages with certainty and facilitates the determination as to who owes arrear-ages and what amount." Fisher, 200 Wis. 2d at 815.

¶ 25. Then, in 1997, the Family Law Section of the State Bar of Wisconsin recommended language that it believed both complied with federal law and was fair, allowing credit to be granted a child support obligor under specifically articulated circumstances. Legislative Reference Bureau Drafting Record for 1997 Wis. Act. 273. The State Bar's proposal served as the foundation for 1997 Wis. Act. 273, which allowed credit to be granted under carefully described circumstances. See id.; 1997 Wis. Act 273 §§ 1-7.

¶ 26. In sum, the retroactive application of Wis. Stat. § 767.32(lm), which generally forbids modification of past due child support, serves: (1) the general public purpose of financially providing for children; (2) the more particular and corollary purpose of requiring parents, rather than the State, to provide financial support for their children; and (3) the pragmatic goal of securing federal funds for the State via compliance with federal law.

¶ 27. The retroactive application of Wis. Stat. § 767.32(lr), which allows a child support payer to be granted credit only under specifically enumerated circumstances, was also enacted to maintain the State's eligibility for certain federal funds, but further recognizes the public's interest in having changes to child support arrangements be supervised by a court, so that children's needs are met as fully as possible by their parents.

¶ 28. Having considered the public interest served by Wis. Stat. § 767.32(lm) and (lr), in accordance with the Martin test, we next consider the private interest affected. Of primary concern is whether the retroactive statute unfairly overturns the challenger's settled expectation in any accrued rights. Schultz v. Natwick, 2002 WI 125, ¶ 26, 257 Wis. 2d 19, 653 N.W.2d 266; Matthies, 244 Wis. 2d 720, ¶¶ 42-43; Neiman, 236 Wis. 2d 411, ¶¶ 20, 22. Consistent with that concern, we also consider whether the statute's challenger had reasonably relied on prior law. Neiman, 236 Wis. 2d 411, ¶ 21.

¶ 29. As noted earlier, Dorian contends that his right to due process, that is, the right not to be deprived by the State of life, liberty, or property without due process of law, is violated here. At stake, according to Dorian, is his private interest in property, specifically his economic viability and his ability to contract freely.

¶ 30. Although the total amount Dorian will have to pay in order to satisfy the child support arrearages, plus interest, is considerable, we conclude that in light of the circumstances, his private interest in property here is weak. Dorian's obligation to pay $30 a week in child support to the county clerk was explicit in the 1982 court order. Wisconsin Stat. § 767.32 provided Dorian the opportunity to return to court and request a modification of the order. He chose not to do so. Instead, he waited until he was called into court to pay the arrearages.

¶ 31. Dorian argues that his extrajudicial agreement with Barbara subsequent to the 1982 order was enforceable at the time of its creation, which he alleges was in 1983. However, as discussed above, the prevailing law in 1983 regarding revision of child support arrearages was that the circuit court had discretion to make a revision if cause or justification was shown. See supra Section II.B. As all that Dorian had to rely on under prior law was the court's discretionary power, Dorian's expectation that he could successfully enforce his extrajudicial agreement with Barbara regarding child support was far from settled.

¶ 32. In sum, we conclude that Dorian has not established beyond a reasonable doubt that retroactive applications of Wis. Stat. § 767.32(lm) and (lr) violate his right to due process. Balancing the public's interest against Dorian's private interest, we weigh the public interest as more substantial. Retroactive applications of § 767.32(lm) and (lr) serve significant public purposes, while remedying general social and economic issues. Any expectations Dorian may have had regarding his child support obligation were not well-founded in the law, and moreover, throughout these proceedings, Dorian has never asserted that he was unable to pay $30/week in support or that John had no need for his financial support. Accordingly, his private interest in property is weak. As the Martin analysis demonstrates, retroactive applications of § 767.32(lm) and (lr) are rational and do not violate state or federal constitutional due process provisions.

III. CONCLUSION

¶ 33. Because we conclude that retroactive applications of Wis. Stat. § 767.32(lm) and (lr) do not violate Dorian H.'s right to due process, we affirm the decision of the court of appeals.

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

       All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 893.415(2) (2003-04) provides that "[a]n action to collect child . . . support owed ... shall be commenced within 20 years after the youngest child for whom the support was ordered under the judgment or order reaches the age of 18 or, if the child is enrolled full-time in high school or its equivalent, reaches the age of 19."

       1987 Wis. Act. 27 created Wis. Stat. § 767.32(lm), which provided that "[i]n an action... to revise a [child support judgment]... the court may not revise the amount of child support. . . payments due ... except to correct previous errors in calculations." 1987 Wis. Act. 27, § 21351 The court in Schulz v. Ystad, 155 Wis. 2d 574, 456 N.W.2d 312 (1990), held that this statute applied prospectively, but that legal principles in place prior to' the statute coming into effect applied where child support arrearages had accrued pursuant to an order entered before the statute's effective date of August 1, 1987. Id. at 598-99.

         Rust v. Rust, 47 Wis. 2d 565, 177 N.W.2d 888 (1970), is cited for historical background, not as current precedent.

         Foregger v. Foregger, 40 Wis. 2d 632, 162 N.W.2d 553 (1968), is cited for historical background, not as current precedent.

        Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993), is cited for historical background, not as current precedent.

        See supra note 3.

       Wisconsin Stat. § 767.32(lr) and (lm) are unchanged in the 2001-02 version in all material respects from those effective June 25, 1998.

       1997 Wis. Act. 273, § 10 provided, "Initial applicability. (1) This act first applies to arrearages existing and child or family support payments past due on the effective date of this subsection, regardless of when the judgment or order under

        which the arrearages accrued or the child or family support is owed was entered." (Emphasis added.)

       Wisconsin Stat. § 767.32(lr)(b) provides that a circuit court may grant credit where:
      [t]he payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.
      In the circuit court's oral decision, it noted that this statutorily enumerated circumstance was not met. The circuit court also referenced the language of § 767.32(lr)(c), which provides for granting credit where:
      [t]he payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.265 or 767.29 not including gifts or contributions for entertainment.
      The circuit court explained in its oral decision that this circumstance was also not met, as there was no written agreement.

       Article I, § 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."

       This court has also said that it "will not be bound by the mínimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin ... require [s] that greater protection of citizens' liberties ought to be afforded." See State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977).

       Dorian asserts that his "economic viability" and his "ability ... to freely contract with others" are affected. (Pet. Br. at 15.)

       Dorian does not explain whether he believes the retroactive applications of these statutes violate his right to substantive due process or to procedural due process. The right to substantive due process "protects against governmental actions that are arbitrary and wrong 'regardless of the fairness of the procedures used to implement them,'" Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶ 19, 271 Wis. 2d 51, 678 N.W.2d 831 (citation omitted), whereas procedural due process addresses the fairness of the manner in which a governmental action is implemented, State v. Laxton, 2002 WI 82, ¶ 10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (citation omitted). Dorian is not arguing that the procedure applied in his case was unfair. Instead, he is arguing that it is unfair to apply Wis. Stat. § 767.32(lm) and (lr) retroactively because he believes that it is wrong to apply those substantive rules to his case in light of the law that he alleges had previously been in place. See Schulz, 155 Wis. 2d at 598. Thus, it appears that Dorian is asserting a substantive due process claim, rather than a procedural due process claim.

       The United State Supreme Court has explained that, for the purpose of due process, the retroactive application of legislation must be justified by a rational, as opposed to arbitrary and irrational, purpose. Pension Benefit Guar. Corp. v. R.A. Gray Co., 467 U.S. 717, 729-30, 104 S. Ct. 2709 (1984).

       42 U.S.C. § 666 provides that "each State must have in effect laws requiring. .. that any payment or installment of support under any child support order .. . is ... not subject to retroactive modification," with one limited exception. 42 U.S.C.A. § 666(a), (a)(9)(C). The law was introduced in 1986. Omnibus Budget Reconciliation Act of 1986, Pub. L. 99-509, § 9103,100 Stat. 1874 (1986). See generally Lisa Dukelow, Child Support in North Carolina: What is the State of the Law And How Did We Get Here?, 22 N.C. Cent. L.J. 14, 18 (1996); Aaron Bransky, An Unfortunate Change of Circumstances: Wisconsin Prohibits Retroactive Revision of Child Support Orders, 1988 Wis. L. Rev. 1123, 1135-38.

       Language essentially identical to May 1994 Senate Bill 2, §§ 118-19, 9326, which created 1993 Wis. Act 481, §§ 118-19, 9326, (2), was earlier considered by the legislature in 1993 Senate Bill 44, §§ 3637-38, 9326(2g)(b).

       In the current codification, such a request would he filed pursuant to Wis. Stat. § 767.32(l)(a).

       In their briefs, the parties did not argue whether the agreement between Dorian and Barbara was enforceable under the Statute of Frauds. Wis. Stat. § 241.02(1). Accordingly, we do not address this issue.

       Dorian makes two additional arguments that are without merit. First, he argues that retroactive applications of Wis. Stat. § 767.32(lm) and (lr) violate Article I, § 9 of the Wisconsin Constitution, which guarantees a "certain remedy in the laws for all injuries, or wrongs which [a person] may receive in his person, property, or character," Wis. Const, art. I, § 9. We agree with the court of appeals that this argument fails because the legislature has provided both a procedure and a forum that accommodate his concerns. Barbara B. v. Dorian H., No. 03-1877, slip op. at 8-9 (Ct. App. Dec. 10, 2003). Dorian also urges us to adopt equitable remedies, such as equitable estop-pel, to address the interest he has been ordered to pay on the child support arrearages. However, we are unpersuaded by these arguments because Dorian had the use of the funds that he should have paid to support his son, and the legislature has clearly articulated its policy determinations in Wis. Stat. § 767.25(6) regarding interest on child support arrearages. Further, the legislature has decided that the interest provided for in § 767.25(6) "shall," that is, must, accrue and be paid. See State v. Douangmala, 2002 WI 62, ¶ 31, 253 Wis. 2d 173, 646 N.W.2d 1 (holding that the word "shall" in a statute is generally presumed to be mandatory).