Constructive notice suffices to confer jurisdiction

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The Wisconsin Court of Appeals held on Oct. 6 that the filing of a delinquency petition confers personal jurisdiction over a juvenile, even if it is not delivered to him, if he has constructive notice of it via a motion to waive him into adult court.

Henry W. Aufderhaar was 15 years old and living with his parents in Jefferson on June 4, 2001, when he was interviewed by a police officer about five counts of second-degree sexual assault of a child and two counts of fourth-degree sexual assault of a child.

On June 29, 2001, he moved with his parents to the state of Montana. On Aug. 21, the district attorney for Jefferson County filed a delinquency petition, but when authorities learned that Aufderhaar had moved with his family to Montana, the file was transferred to Walworth County, where the incidents were alleged to have occurred.

On Oct. 8, the Walworth County intake worker attempted to mail documents containing the pending charges to Aufderhaar and his parents in Montana, but the mail was returned as “Attempted-Not Known.” On Oct. 26, a delinquency petition was filed in Walworth county with a return date of Nov. 8.

Aufderhaar did not appear for his initial plea hearing and a capias was ordered. Thereafter, the case sat dormant for about a year and a half.

On March 6, 2003, the Walworth County Juvenile Court Clerk received a telephone call from Montana authorities that Aufderhaar was involved in a juvenile matter in that state relating to sexual behavior. The clerk forwarded this information to the district attorney’s office.

On March 12, a petition was filed to waive jurisdiction to adult court. At this point in time, Aufderhaar was over 17 years old. The Montana authorities had given the Walworth clerk a new address for Aufderhaar, so she mailed the necessary papers to that new address. The papers were not returned.

On April 23, Walworth County Circuit Court Judge James L. Carlson waived Aufderhaar in absentia into adult court A criminal complaint was filed, and a warrant was issued.

On Oct. 2, Aufderhaar appeared in Walworth County and challenged the adult court’s personal jurisdiction over him, arguing that sec. 938.273 provides for a continuance and personal service if there is no appearance at a juvenile proceeding, and for service by certified mail in the event personal service is deemed to be impracticable.

In addition to lack of statutory authority for personal jurisdiction, Aufderhaar argued that the waiver in abstentia violated due process. Walworth County Circuit Court Judge Robert J. Kennedy rejected the arguments.

Aufderhaar petitioned the court of appeals for leave to file an interlocutory appeal. The court granted the petition, but affirmed the waiver in a decision by Judge Richard S. Brown.

Interlocutory Appeals

The court began by stating that it would only address the three issues raised in the petition for interlocutory review, and would ignore two other issues raised in Aufderhaar’s brief, reasoning, “For a party to add issues after a petition is granted where we have not had the opportunity to assess the likelihood of success of that issue is counterproductive to the process and undermines the rationale for our approach to nonfinal orders”

The court acknowledged that the case involves an appeal from a juvenile waiver into adult court and that the Supreme Court has urged that careful consideration be given to the merits of such petitions, but wrote, “We are not interested in spending our valuable time addressing issues that do not meet the criteria just because the case is already in limbo pending our review and we have the record and the parties before us. The mere fact that proceedings have ground to a halt pending review of a nonfinal order is not sufficient reason for us to reach any and all issues an appellant can conjure up. To do so would cause further delay in the trial court because we would be spending extra time reading, researching, and writing on these extra issues. We will not allow our time to be used unwisely.”

Jurisdiction

The court then held that the adult court had personal jurisdiction over Aufder-haar, even though the juvenile court failed to comply with sec. 938.273, which requires the court to continue the matter if a juvenile does not appear, and to order either personal service or service by certified mail if it finds that personal service would be ineffectual.

The court rejected the State’s argument that its attempts to serve Aufderhaar were reasonable, noting that it knew he was attending school in Hot Springs, Montana, but took no effort to obtain his address.

The court concluded, “It is not too much to require that a district attorney also exercise due diligence in attempting to notify a juvenile that the force of government has caused a petition to be filed against him or her. If our system of justice requires due diligence on the part of plaintiffs in civil cases to serve a defendant personally where they have information concerning the possible whereabouts of the defendant, requiring them to inquire further when they possess information that could reasonably be expected to lead to the dis
covery of the party sought, then we conclude district attorneys have an equivalent obligation to locate the subject of a juvenile proceeding, whose liberty interests are at stake (cites, footnote omitted).”

Nevertheless, the court held that the failure to exercise due diligence and comply with the statute did not deprive the court of personal jurisdiction, relying on State v. Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct.App. 1993).

In Jermaine T.J., the juvenile also failed to appear for a hearing and the court did not thereafter continue the case for the purpose of securing personal service or, failing that, service by certified mail, but issued a capias. Nevertheless, the court of appeals held that the failure did not deprive the court of jurisdiction.

Aufderhaar argued that Jermaine T.J. was distinguishable, because Jermaine had already had a secure detention hearing, and it was only after he was subsequently released from secure custody that he failed to appear. Aufderhaar also argued that the juvenile court in Jermaine T.J. gained personal jurisdiction over Jermaine when he personally appeared at both the plea and waiver hearings, and therefore, failure by the court to adhere to the notification procedures in a future hearing had no bearing on personal jurisdiction, while in his case, the notification problems existed at the outset and he never submitted himself to the jurisdiction of the juvenile court until after waiver had already occurred.

The court rejected the argument, however, quoting Jermaine T.J. for the holding that, “it is the delinquency petition that is the critical procedure for acquiring personal jurisdiction over the juvenile.”

The court also quoted State v. Smith, 131 Wis. 2d 220, 237-38, 388 N.W.2d 601 (1986), in which the court wrote, “The critical relationship between the complaint and personal jurisdiction is indicated by the constitutional purpose for personal jurisdiction. Personal jurisdiction assures that the defendant has a sufficient relationship to the jurisdiction exercising authority and that the defendant has notice of the charges. The notice function is accomplished by requiring a complaint to include the essential facts constituting the offense charged.” Smith, 131 Wis. 2d at 239.

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The court acknowledged that Aufderhaar never received a copy of the petition prior to the waiver hearing, but concluded that he had constructive notice of it, because the notice of waiver hearing was sent to his correct Montana address before the waiver hearing and that notice was never returned as undeliverable.

The court concluded, “When Aufderhaar received the waiver petition in the mail, that petition notified him that the power of the government had called him to account for an allegation in the criminal law and put him on constructive notice that the allegation had been reduced to a legal document filed in the Wisconsin circuit court and that a delinquency petition existed that spelled out the probable cause that the government had before acting. Therefore, the court had jurisdiction over his person. The issue is therefore decided in the same way our appellate courts have decided Jermaine T.J. and Smith. In all three cases, there was a formal document filed with the court, and in all three cases, the defendant had notice of the invocation of the court’s jurisdiction and the grounds for such invocation before the court took the action complained of by the defendant.”

502-day Delay

Finally, the court found that the 502-day delay between the filing of the delinquency petition and the filing of the waiver motion did not violate due process. The court reasoned, “There is no evidence that the State was sitting on the case, waiting for Aufderhaar to turn seventeen. Had this been the case, the State would have acted when he actually turned 17 or soon thereafter, around Aug. 3, 2002. Instead, it is clear that the State filed its waiver petition and began pursuing Aufderhaar in earnest after the Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in sexual activity in Montana and providing a current address for Aufderhaar. Thus, it is quite apparent that Aufderhaar was himself the catalyst for the State’s renewed interest in him. While the State certainly could have located Aufderhaar at the petition stage, and was negligent in not doing so, the resultant delay was probably due to a decision to leave Aufderhaar alone, not to wait until he was older. That is the only inference that we can arrive at, and therefore, we conclude the delay was not an intentional attempt by the State to manipulate the system.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.