Bill would make it easier to file statements in court

By Margo Kirchner

A bill before the Legislature would eliminate the need to find a notary public before filing certain court documents. 

Under the bill, Senate Bill 29/Assembly Bill 27, a person could submit a court document signed under penalty of perjury, and the document would have the same effect as an affidavit sworn in front of a notary public.

The bill aligns Wisconsin law with a federal law in place since 1976 and with laws in other states. 

The Senate has already passed the bill. It awaits action by the Assembly’s State Affairs Committee.

In testimony to the Senate Judiciary and Public Safety Committee in support of the bill, Attorney Thomas Shriner of Foley & Lardner said the bill will create an “inexpensive and convenient” means for submitting evidence in Wisconsin courts and agencies. Shriner testified on behalf of the Wisconsin Judicial Council, which recommended the change. 

The Uniform Law Commission, a nonprofit and nonpartisan organization advocating for consistent laws across states, also supported the bill before the Senate. 

The bill, if passed, will simplify submission of evidence for summary judgment motions and other points in civil litigation when affidavits are used as evidence. Attorneys will not have to coordinate getting their clients’ signatures notarized in the midst of meeting a motion deadline, for instance.

A person submitting evidence to a court or agency without a notary’s signature and stamp would simply need to write and sign at the end of a document: “I declare under penalty of false swearing under the law of Wisconsin that the foregoing is true and correct.”

Attorney Sarah Zylstra of the Boardman Clark law firm told Wisconsin Justice Initiative of the proposed rule's advantages for civil litigation attorneys and clients. The use of the rule in federal courts has shown that sworn declarations “are just as effective as affidavits, but with the benefit of being less costly and much more convenient for witnesses and attorneys,” she said. “It is not always convenient to find a notary to notarize an affidavit, and many notaries charge for their services.”

The rule “is particularly important for those in rural areas, those who have transportation challenges, and when documents need to be signed quickly, on an emergency basis,” she said.

The bill should make procedures simpler for litigants who represent themselves, too. Having documents notarized is one of many steps that self-represented people must accomplish to file court documents. 

Mary Ferwerda, executive director of the Milwaukee Justice Center, said in response to questions from Wisconsin Justice Initiative that getting a signature notarized is challenging for many people.

“Most banks have a notary public on staff, but not everyone possesses bank accounts, and notary public services may not be available to those without an account. And, while courthouses do have notaries public, many people throughout the state do not live adjacent to a courthouse,” she said. Those who lack transportation or live with disabilities that limit their ability to travel are especially affected, she noted. 

Plus, when notaries charge for their services, “even nominal sums can be difficult to pay,” said Ferwerda. (Ferwerda takes no position on the pending bill.)

If the bill passes, oaths of office, depositions, and real estate documents will still require a sworn statement before a notary.

Under Wisconsin law in place since 2009, a declarant who is located outside of the United States is allowed to sign documents under penalty of perjury without finding a notary. The bill would mean that declarants within the United States may do so as well.

The bill was introduced by Sens. Van Wanggaard (R-Racine), Joan Ballweg (R-Markesan), and Eric Wimberger (R-Green Bay), and Reps. Ron Tusler (R-Harrison), Nik Rettinger (R-Mukwonago), Jeffrey Mursau (R-Crivitz), Elijah Behnke (R-Oconto) and Marisabel Cabrera (D-Milwaukee). Rep. Darrin Madison (D-Milwaukee) has since signed on as another co-sponsor.

The change is part of a move toward uniform laws across the states and is known as the “Uniform Unsworn Declarations Act.”