Logic v. City of South Milwaukee Board of Canvassers 689 N.W.2d 692 277 Wis.2d 421, 689 N.W.2d 692, 2004 WI App 219 (Cite as: 277 Wis.2d 421, 689 N.W.2d 692) Even under the "will of the electorate" rule, votes will be discarded despite the apparent good faith of the electors if noncompliance with the election law is not de minimis. [8] Elections 305(4) 144k305(4) Most Cited Cases Even if the "will of the electorate" rule applied, requirement in statute governing appeals from a recount determination by the board of canvassers that challenger serve "other candidates" was a core protection that was hardly de minimis and, thus, was mandatory rather than directory. W.S.A. 9.01(6)(a). [9] Elections 305(4) 144k305(4) Most Cited Cases Unsuccessful mayoral candidate's service of appeal from recount of city board of canvassers on city clerk was not effective as to incumbent candidate; incumbent was running for office in his personal, not his official, capacity, and there was no evidence that incumbent had either authorized or appointed clerk to accept service for him in his capacity as a candidate. W.S.A. 9.01(6)(a). **693 *423 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Basil M. Loeb, Mequon. On behalf of the defendant-respondent, the cause was submitted on the brief of Joseph G. Murphy, South Milwaukee. Intervenor-respondent represented by Michael S. Maistelman, Milwaukee, joins in the brief of defendant-respondent. *424 Before WEDEMEYER, P.J., FINE and CURLEY, JJ. ¶ 1 FINE, J. James Logic, a candidate for mayor of the City of South Milwaukee in the April 6, 2004, election, appeals the circuit court's dismissal of his action contesting a recount by the City of South Milwaukee Board of Canvassers. The circuit court held that Logic's failure to serve his notice of appeal on the other and, according to the Board of Canvassers, successful, mayoral candidate meant that the court had no jurisdiction over the appeal. We affirm. [FN1] FN1. This is an expedited appeal under Wis. Stat. Rule 809.17. Page 2 I. ¶ 2 Both Logic and the then incumbent, David Kieck, ran for mayor of South Milwaukee. The initial tally had them tied at 2,783 votes apiece. Kieck sought a recount under Wis. Stat. § 9.01. As a result of that recount, the Board of Canvassers determined that Kieck won by one vote. Logic, contending that the Board of Canvassers erred in the recount, sought review by the circuit court. See Wis. Stat. § 9.01(6)(a). Section 9.01(6)(a) provides, as material to this appeal: Within 5 business days after completion of the recount determination by the board of canvassers ... any candidate ... may appeal to circuit court. The appeal shall commence by serving a written notice of appeal on the other candidates.... The appellant shall serve the notice by certified mail or in person. Logic did not serve Kieck either personally or by certified mail, and, as noted, the circuit court dismissed Logic's appeal. Our review is de novo. See **694Burnett v. Hill, 207 Wis.2d 110, 118, 557 N.W.2d 800, 803 (1997). *425 II. A. "Fundamental" versus "Technical" Defect. [1][2] ¶ 3 Failure to follow statutory requirements in commencing an action, serving a party, or taking an appeal deprives the court from which relief is sought of jurisdiction over the action, party, or appeal if the defect of process is "fundamental" rather than merely "technical." See American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis.2d 524, 533, 481 N.W.2d 629, 632 (1992). A defect is "fundamental" if it defeats "the purpose of the rule." Jadair Inc. v. United States Fire Ins. Co., 209 Wis.2d 187, 208, 211-213, 562 N.W.2d 401, 409, 411 (1997) (overriding purpose of preventing non-lawyers from practicing law rendered ineffective a notice of appeal filed on corporation's behalf by its non-lawyer president); Burnett, 207 Wis.2d at 123-125, 557 N.W.2d at 805-806 ("mailing of an unauthenticated copy of the publication summons along with authenticated copies of the original summons and complaint, although not in strict compliance, fulfilled the purpose" of statute and was, therefore, a "technical" defect); Gaddis v. LaCrosse Prods., Inc., 198 Wis.2d 396, 405-407, 542 N.W.2d 454, 457-458 (1996) (serving unsigned summons together with signed complaint © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 321