Kellner v. Christian

Decision Date21 November 1995
Docket NumberNo. 93-1657,93-1657
Citation197 Wis.2d 183,539 N.W.2d 685
PartiesJason E. KELLNER, Gary Kellner and Marilyn Mae Carraway, Plaintiffs-Appellants-Petitioners, v. Richard CHRISTIAN, Beth Cox and Karen Stoll, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners there were briefs by D.J. Weis and Habush, Habush, Davis & Rottier, S.C., Rhinelander, and oral argument by D.J. Weis.

For the defendants-respondents the case was argued by John J. Glinski, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

BABLITCH, Justice.

The plaintiffs, Jason E. Kellner and his parents, Gary Kellner and Marilyn Mae Carraway, seek review of a judgment granting the defendants' (the State's) motion for judgment on the pleadings because their notices of claim were not sworn to as required by law, and hence, were defective. This court is asked to determine what specific actions a claimant must take in order to properly "swear to" a notice of claim under the applicable statute. Plaintiffs argue that a notice of claim is "sworn to" by signing the notice in front of a notary public. The State argues that a notice of claim is "sworn to" only when the claimant makes a formal oath or affirmation as to the truthfulness of the claim, and when the notice states on its face that the oath or affirmation occurred. We agree with the State and conclude that the notices filed by Jason and his parents were not properly "sworn to" under the statute. Accordingly, we affirm.

The relevant facts are not in dispute. On July 5, 1991, Jason, then 17 years old, was a resident at the adolescent training unit at the Mendota Mental Health Institute, in Madison, Wisconsin. Jason was injured while playing basketball in the patient courtyard while under the supervision of Richard Christian, a Residential Care Technician. At the time of the accident, Beth Cox was the Director of Mendota Mental Health Institute and Karen Stoll was Management Services Director of Mendota Mental Health Institute.

As a result of Jason's injuries, Jason and his parents filed suit against Christian, Cox and Stoll. Because these individuals were employees of the State of Wisconsin, Wis.Stat. § 893.82(5) (1993-94) 1 required that Jason and his parents serve a notice of claim of injury on the attorney general. In October 1991, Jason and his father went to their attorney's office to execute their notices of claim of injury. Their attorney asked them to read the notices he had prepared, and inquired as to whether they understood them and whether the contents contained therein were true and accurate to the best of their knowledge. Jason and Gary signed their notices, and their attorney, as guardian ad litem for Jason, also signed Jason's notice. These notices were executed before a notary public who verified that the signers were known to her to be the persons who signed the notices and acknowledged the same. In notarizing the signatures, the notary public used a notary block, commonly known as an acknowledgment, which stated:

Personally came before me this 28th day of October, 1991, the above-named ________, to me known to be the person who executed the foregoing instrument and acknowledged the same.

Marilyn Mae Carraway was not at the October 1991 meeting. The signing of her notice was witnessed by an individual not authorized to administer oaths. All three notices were served on the attorney general. The State of Wisconsin denied their claim.

Jason and his parents filed suit against the State of Wisconsin in March 1992. The State moved for judgment on the pleadings on the grounds that the circuit court lacked jurisdiction to hear the case because Jason and his parents had not complied with the requirements of Wis.Stat. § 893.82(5). The circuit court agreed. With respect to Marilyn's affidavit, the court concluded that it could in no way be said to signify that she was swearing to the truth of the information the notice contained. With respect to Jason and his father, the court held that merely taking an acknowledgement does not involve attesting to the truth of the information contained in the document. A majority of the court of appeals affirmed.

The sole issue before this court is to determine what Wis.Stat. § 893.82(5) requires when it states that a written notice of claim must be "sworn to" by a claimant before the claimant can bring an action against a state employee. The purpose of statutory review is to ascertain the intent of the legislature. In Interest of J.A.L., 162 Wis.2d 940, 962, 471 N.W.2d 493, 502 (1991). The meaning of a statute is a question of law, which this court reviews de novo without deference to any lower court ruling. GTC Auto Parts v. LIRC, 184 Wis.2d 450, 516 N.W.2d 393, 397 (1994). In interpreting the meaning of a statute, this court first looks to the language of the statute itself. In Interest of P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677, 681 (1984). If the meaning of the statute is clear, the court will not look outside the statute to ascertain its meaning. Id. at 878, 350 N.W.2d at 681. This court will simply apply the plain meaning of the statute to the facts of the case. Voss v. City of Middleton, 162 Wis.2d 737, 749, 470 N.W.2d 625, 629 (1991).

In this appeal, Jason and his parents argue that the decision by the circuit court and the court of appeals' majority places "form over substance." Plaintiffs contend that Wis.Stat. § 893.82(5) gives no definition of the specific conduct necessary to have a notice properly "sworn to" as required. Finally, plaintiffs believe that the more liberal provision in Wis.Stat. § 887.03 2 controls and simply requires that an oath or affidavit be in any of the "usual forms."

The State contends that the court of appeals properly determined the plain meaning of the statute. The State draws a distinction between administering an oath and an acknowledgement: a sworn statement attests to the truth of the facts stated, while an acknowledgement is merely a method of showing who signed the statement. Thus, the State agrees with the lower courts that this notary merely made an acknowledgment but did not supply proof that an oath was administered.

We agree with the State and hold that, in order for a notice to be properly "sworn to" under Wis.Stat. § 893.82(5), a claimant must make an oath or affirmation as to the truthfulness of the contents of the notice. In addition, the notice must contain a statement showing that the oath or affirmation occurred. Because Jason and his parents failed to comply with these requirements, we affirm the decision of the court of appeals.

Wisconsin Stat. § 893.82 governs claims against state officers and employees. Prior to bringing suit against a state employee, a claimant must provide a written notice of the claim to the attorney general. See § 893.82(3). The language of § 893.82(5) is clear. Subsection (5) explains that a claimant must execute a notice of claim while under oath. The section states:

The notice under sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol by certified mail. Notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.

It is established in law that an oath is an affirmation of the truth of a statement, which renders one willfully asserting an untruth punishable for perjury. In re Williamson, 43 B.R. 813, 821 (Utah 1984). The essentials of an oath are: (1) a solemn declaration; (2) manifestation of intent to be bound by the statement; (3) signature of the declarer; and (4) acknowledgment by an authorized person that the oath was taken. McKnight v. State Land Bd., 14 Utah 2d 238, 381 P.2d 726, 734 (1963).

In contrast, an acknowledgment is a method of authenticating an instrument by showing that it was the act of the person executing it. H.A.M.S. Co. v. Electrical Contractors of Alaska, Inc., 563 P.2d 258, 260 (1977). An acknowledgment consists of only two aspects: an oral declaration of the party executing the instrument; and a written certificate prepared by a public official, usually a notary public, attesting to the oral declaration. 1 Am.Jur.2d Acknowledgments § 1.

These distinctions illustrate that the requirement of an oath is not a mere technicality. In order to constitute a valid oath, there must be in some form an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. People v. Coles, 141 Misc.2d 965, 535 N.Y.S.2d 897, 903 (1988). The purpose of the oath is to impress the person who takes the oath with a due sense of obligation, so as to secure the purity and truth of his or her words under the influence of the oath's sanctity. Asher v. Sizemore, 261 S.W.2d 665, 666 (Ky.1953).

Wisconsin courts recognize the distinction between an oath and an acknowledgment. In Koller v. Pierce County Dep't of Human Services, 187 Wis.2d 1, 522 N.W.2d 240 (Ct.Appeals 1994), the court of appeals held that a sworn statement and a notarization are not synonymous; each is separate and distinct. Id. at 5, 522 N.W.2d 240. The court explained that:

A statement may be sworn without being notarized (e.g. sworn testimony under § 887.01(1), STATS.), just as a statement may be notarized without being sworn (e.g. persons affirm their signatures on durable powers of attorney before a notary under § 243.10(1), STATS.).

Id. at 6-7, 522 N.W.2d 240. In Maier v. Byrnes, 121 Wis.2d 258, 263, 358 N.W.2d 833 (Ct.App.1984), the court of appeals dismissed a petition for a writ of habeas corpus because the writ was not properly verified under Wis.Stat. § 782.04. 3 The court stated that the purpose of the verification was to assure "that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith." Id. at 263, 358 N.W.2d 833.

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