Unauthenticated Affidavit not a Fundamental Defect, Appeals Court
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Oct. 5, 2012
– A state appeal courts recently ruled that a circuit court had
personal jurisdiction over a property forfeiture action, even though a
court clerk did not authenticate a required affidavit.
Robert Schmitt complained that the Waukesha County Circuit Court did
not have personal jurisdiction to enter a judgment forfeiting his
vehicle because the state’s pleadings did not comply with
Wisconsin law. The state seized the car in connection with drug-related
Under Wis. Stat. section 961.555(2)(a),
forfeiture actions must be commenced by filing a summons, complaint, and
affidavit of the person who seized the property.
A condition of the circuit court’s personal jurisdiction requires
each of these documents to be authenticated – affixed with an
official court stamp and case number – by the clerk of courts
before they are served upon the defendant or respondent in the case.
In Schmitt’s case, the clerk authenticated the summons and
complaint, but not the affidavit.
The circuit court dismissed Schmitt’s personal jurisdiction
argument. In State
v. Schmitt, 2011AP1949 (Oct. 3, 2012), the District II
Wisconsin Court of Appeals recently affirmed.
“It is obvious to us that the three items were submitted as one
document and that the clerk stamped the summons and complaint, but for
some reason, did not stamp the affidavit. So yes, there is a
defect,” wrote Chief Appeals Court Judge Richard Brown.
However, the appeals court looked to American Family Mutual Ins.
Co. v. Royal Ins. Co., 167 Wis. 2d 524, 481 N.W.2d 629 (1992), to
conclude that the error was a technical defect, not a fundamental defect
that would deprive the circuit court of personal jurisdiction.
“Our supreme court has held that when the failure to authenticate
is due to a clerk’s error, the error is technical,” Judge
Brown wrote, referring to American Family.
The appeals court warned that failing to meet the authentication
requirement of section 961.555(2)(a) still constitutes a fundamental
defect, while noting the exception.
“[W]here, as here, the State presents all three items, stapled
together as one document, to the clerk for authentication, and the clerk
errs in failing to separately authenticate the affidavit, such defect is
technical, not fundamental, and will only deprive the court of
jurisdiction if prejudice is shown,” Judge Brown wrote.