By John DiMotto
Now that I have completed my series on Impeachment and Rehabilitation Evidence in Wisconsin, I would like to look at some Juvenile law issues. Today, I will start out with service of process and jurisdiction both generally and as it pertains in TPR (Termination of Parental Rights) cases.
Before a court may act in a civil lawsuit, the court must have both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is conferred by the constitution and statutes of the state and by statutes of the United States. It cannot be conferred by consent of the parties.
In most cases, in order for the court to have personal jurisdiction over a defendant in a civil lawsuit, the person must be served with a summons pursuant to 801.11, although service may be dispensed with if the person appears in the action and does not, by motion or responsive pleading, raise the defense of lack of jurisdiction over the person, insufficiency of process or untimeliness or insufficiency of service of process over his or her person. see 801.04(2), 801.06 and 802.06(8).
In most cases, to effectuate service and obtain personal jurisdiction over a defendant in a civil lawsuit, a summons must ordinarily be personally served upon a defendant. In most cases, if with reasonable diligence the defendant cannot be personally served then substituted service upon a family member who is at least 14 years of age or a competent adult living at the defendant's residence may be done. Furthermore, in most cases, if with reasonable diligence neither personal or substituted service can be effectuated, service may be done by class three publication (three times) and mailing. see 801.11.
In TPR cases, the service of process rules are different. Under 48.42(4)(a), the summons and petition must be served personally upon the parties, if known, at least 7 days before the date of the initial hearing on the petition. Under 48.42(4)(b), if with reasonable diligence a party cannot be personally served, service may be made by class one publication (one time only) and mailing. Substituted service is not permitted in TPR cases. However, proper service is not a condition precedent if the party appears in court and submits to the jurisdiction of the court.
The issue of what constitutes reasonable diligence has been subject to much litigation. A number of principles are articulated in case law:
1) The purpose of a summons is to give notice to a defendant and confer jurisdiction on the court over a defendant. see Useni v. Bourdron, 264 Wis.2d 783 (Ct. App. 2003).
2) In order for service to be effective, statutes must be complied with. Improper service is a fundamental defect. see Hagen v. MERS, 262 Wis.2d 113 (2003).
3) Strict compliance with the rules of statutory service is required even though the consequences may appear to be harsh. see Bar Code Resources v. Ameritech, 229 Wis.2d 287 (Ct. App. 1999).
4) The burden to establish jurisdiction is on the plaintiff. see Laska v. House, 169 Wis.2d 510 (Ct. App. 1992).
5) In order for the court to have personal jurisdiction, a summons must be served according to the statutes. A defendant's knowledge of a pending action is not equivalent to service. what amounts to due diligence depends on the facts in each case. Slipshod and hap hazard attempts to serve are not sufficient. Two attempts, under some circumstances, may be sufficient. see Heaston v. Austin, 47 Wis.2d 67 (1969).
6) Reasonable diligence requires pursuit of "leads or information reasonably calculate to make personal service possible. see Welty v. Heggy, 124 Wis.2d 318 (Ct. App. 1984).
7) Diligence needed is reasonable, not all possible diligence. see Haselow v. Gauthier, 212 Wis.2d 580 (Ct. App. 1997).
8) Fundamental to due process requirement is provision of notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Process server must not stop short of pursuing a viable lead. see Loppnow v. Bielik, 2010 WI App 66, ___Wis.2d ___ (Ct. App. 2010).
It is incumbent upon the trial court to ensure that before it takes action in a case, that it is satisfied that the jurisdictional requirements in the particular matter have been met. This is critical when a default judgment is being sought. If service was not effective, the validity of a default judgment is in question. Justice demands nothing less.