Attorney General of Wisconsin — Opinion
December 31, 1974.
Public Records; A copy of an official record may be admitted in evidence if it is certified as correct in accordance with sec. 909.02 (4), Wisconsin Rules of Evidence, even though the certification does not comply with the provisions of sec. 889.08
(1), Stats.
BRONSON C. La FOLLETTE, Attorney General
NORMAN M. CLAPP, Secretary, Department of Transportation
Section 889.08 (1), Stats., provides that, in certifying a copy of a public record, the custodian thereof shall certify that the copy has been compared “by him” with the original and found to be a true copy. In Stevens v. Clark County Supervisors (1877), 43 Wis. 36, the court held that a certification without the words “by him” is insufficient as a certification under this statute. Your question is whether a certification without the words “by him” but in compliance
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with sec. 909.02 (4), Wisconsin Rules of Evidence, 59 Wis.2d R p. 341, would be sufficient to authenticate a copy so that it could be admitted into evidence. The answer is yes.
Section 909.02, Wisconsin Rules of Evidence, reads in part:
“909.02 Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
“(1) PUBLIC DOCUMENTS UNDER SEAL. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer or agency thereof, and a signature purporting to be an attestation or execution.
“***
“(4) CERTIFIED COPIES OF PUBLIC RECORDS. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with sub. (1), (2) or (3) or complying with any statute or rule adopted by the supreme court.”
This rule provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to a copy of an official record, where it is certified as correct by the custodian thereof by a certificate complying with sub. (1) or complying with any statute or supreme court rule. The Judicial Council Committee’s Note on sub. (4) of this section, 59 Wis.2d Rp. 344, provides in part:
“Sub (4). The manner of certification provided in this subsection is different from that provided for in s. 889.08; however, there is no need to amend s. 889.08 . . .”
Thus it is clear that this rule provides an alternate method for certifying copies of official records. The certificate may comply with a statute, such as sec. 889.08 (1), Stats., for example. However, a
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certificate may also comply with sub. (1) of the above rule, in which case it need not comply with the statute.
For the certificate to comply with sub. (1) of the rule it need only bear the seal of a state department and a signature purporting to be an attestation or execution. The copy need only be certified as correct by the custodian of the original record. There is no requirement that the custodian must state that the copy has been compared by him with the original. It is, therefore, my opinion that a copy of an official record may be admitted in evidence if it is certified as correct in accordance with sec. 909.02 (4), Wisconsin Rules of Evidence, even though the certification does not comply with the provisions of sec. 889.08 (1), Stats.
The Administrator of the Division of Motor Vehicles need not personally sign his name to such certificates. Section 110.015, Stats., specifically authorizes him, through his authorized employes, to execute or affix his signature to a certificate with a stamp, reproduction print, or other similar process. Preparation of copies and certificates, and affixing the seal and signature involves no discretion and is purely ministerial. The law is clear that such ministerial duties can be delegated by the Administrator to his subordinates. 73 C.J.S., Public Administrative Bodies and Procedure, sec. 57, page 381; School District v. Callahan (1941), 237 Wis. 560, 577, 297 N.W. 407 Park Bldg. Corp. v. Industrial Com. (1960), 9 Wis.2d 78, 86, 100 N.W.2d 571.
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