(1974) , 63 Op. Att'y Gen. 467 ( 1974 )

PHILIP S. HABERMANN, Executive Director, State Bar of Wisconsin

I am advised by a member of the bar that in November, 1970, an assistant attorney general admitted service on a summons and complaint, and that an attorney now examining an abstract of title questions the authority of an assistant attorney general to admit service on behalf of the Attorney General. Apparently merchantable title of record to the property in question depends upon valid service of process and notice to the office of the Attorney General of the pendency of a legal action allegedly involving the rights of the state in the matter.

You are advised, and the public is advised by virtue of publication of this opinion, that an admission of service by assistant attorneys general while in performance of their duties as such, are acts of the Attorney General. Therefore, an admission of service by an assistant attorney general is as legally binding as is an admission of service by the Attorney General.

While the Attorney General is a constitutional officer and charged by statute with many duties, the law clearly recognizes that the Attorney General may act through officially appointed assistant attorneys general. See secs. 165.055, 165.065 and 165.07, Stats.

In prescribing how a court obtains personal jurisdiction, the legislature has provided in sec. 262.06 (3), Stats., that in an action involving the state, service may be obtained "by delivering a copy of the summons and of the complaint to the attorney general or leaving them at his office in the capitol with his assistant or clerk."

I would call to the attention of the bar, that I have designated certain personnel in the Department of Justice as clerks within the meaning of sec. 262.06 (3), Stats., for the purpose of admitting service on process. If the pleadings are mailed to my office and are otherwise valid and in compliance with sec. 285.10, Stats., either an assistant attorney general or one of the specifically designated clerks will admit service on the papers served and return the admission of service form or card. No other personnel are authorized to admit service. If requested, my office will furnish a photocopy of the document designating clerks within the meaning of sec. 262.06 (3), Stats.

Occasionally a complaint in a foreclosure or quiet title action will merely allege that the state has or may claim to have some interest in the property involved in the action without further detail. Such allegation is not in conformity with sec. 285.10, Stats., and consequently admission of service is refused.

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