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Court lost competency to decide constitutional challenge to statute due to failure to notify AG of challenge

S.R. v. Circuit Court for Winnebago County, 2015 WI App 98; case activity

Because S.R. and C.L.’s “petition for determination of parentage” effectively asked the circuit court for a declaratory judgment about the meaning of Wisconsin’s parentage statutes in light of the cases holding that same-sex couples have a constitutional right to marry, the petition should have been served on the Attorney General. Because that didn’t happen, the circuit court lacked the competency to decide the petition.

S.R. gave birth to a child after artificial insemination. S.R. and C.L. married shortly after the child’s birth. They commenced what they styled an “adoption” action in the circuit court, asking the court to declare both of them to be the child’s parents and direct a birth certificate to be issued showing that fact, relying on Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014), aff’d sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). They conceded they weren’t really seeking adoption and that the action was “closer to a declaratory judgment than a request for relief.” (¶¶5, 12, 14).

Because the action was in effect one for declaratory judgment, the petitioners’ failure to notify the AG of their action, as required by § 806.04(11), is fatal:

¶9     Ultimately, we view the question before us as a question of whether the circuit court had competency to adjudicate S.R. and C.L.’s action in light of their failure to serve the attorney general. See State v. Starks, 2013 WI 69, ¶36, 349 Wis. 2d 274, 833 N.W.2d 146, cert. denied, 135 S. Ct. 1548 (2015) (“Competency … speaks to ‘the power of a court to exercise its subject matter jurisdiction in a particular case’ … [and] is set by statute…. ‘[T]he failure to comply with any statutory mandate’” goes to the court’s competence to rule on the matter before it.). ….

¶10    When seeking a declaratory judgment, the requirements of Wis. Stat. § 806.04 control. See Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶35, 244 Wis. 2d 333, 627 N.W.2d 866 (“The power of courts to issue a declaratory judgment is statutory.”). In William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 302 N.W.2d 414 (1981), our supreme court held that “[i]n a declaratory [judgment] action the failure to give the notice [to the attorney general] required by [§] 806.04(11) is fatal to the jurisdiction… of the court,” adding that “the maintenance of a declaratory action requires strict compliance with [§] 806.04.” Estate of Fessler, 100 Wis. 2d at 443-44. Because S.R. and C.L. failed to serve the attorney general with this action seeking declaratory relief, the circuit court properly dismissed the matter due to its lack of competency to consider it.

As the court notes (¶10 n.7), while Fessler uses the word “jurisdiction,” the supreme court has since made clear that it is a court’s “competency” that is lost when there is a failure to comply with a statutory prerequisite for a court proceeding. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶1-2, 8-10, 273 Wis. 2d 76, 681 N.W.2d 190.

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