City of Cedarburg, Plaintiff-Appellant, v. Ries B. Hansen, Defendant-Respondent.
2018AP1129
SUPREME COURT OF WISCONSIN
February 11, 2020
2020 WI 11
ON BYPASS FROM THE COURT OF APPEALS; SOURCE OF APPEAL: Circuit Court, Ozaukee County; JUDGE: Paul V. Malloy
ORAL ARGUMENT: September 9, 2019
JUSTICES: ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
ATTORNEYS:
For the plaintiff-appellants, there were briefs (in the court of appeal) filed by Jonathan G. Woodward and Houseman & Feind, LLP, Grafton. There was an oral argument by Jonathan G. Woodward.
For the defendant-respondent, there was a brief (in the court of appeals) filed by Andrew Mishlove and Mishlove & Stuckert, LLC, Glendale. There was an oral argument by Andrew Mishlove.
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
(L.C. No. 2017CV411)
FILED FEB 11, 2020 Sheila T. Reiff Clerk of Supreme Court
ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
APPEAL from an order of the Circuit Court of Ozaukee County. Reversed.
¶2 In 2005, Ries B. Hansen was convicted by the Mid-Moraine Municipal Court of Operating While Intoxicated (OWI) in violation of a City of Cedarburg ordinance, based upon Hansen‘s guilty plea to the alleged violation.3 In 2016, when he was again charged with OWI, Hansen collaterally attacked his 2005 conviction by proving that he had a 2003 OWI conviction in Florida. He contended that his 2005 OWI was factually a second offense and therefore, outside of the municipal court‘s limited subject matter jurisdiction. The circuit court agreed and vacated Hansen‘s 2005 conviction.
¶3 We conclude that the 2005 municipal citations invoked the municipal court‘s subject matter jurisdiction, which was granted by
¶4 And finally, an objection to a court‘s competence may be forfeited if it is not raised in a timely manner. Id., ¶1. Hansen was silent about his 2003 Florida OWI conviction until he was again arrested for OWI in 2016. We conclude that, by his 11 years of silence, Hansen has forfeited any competence objection that could exist. Accordingly, his 2005 and 2003 convictions were countable offenses in 2016 for purposes of Wisconsin‘s statutory progressive penalty requirements, and we reverse the order of the circuit court.
I. BACKGROUND
¶5 This case is grounded in three OWI convictions and their effects on each other due to Wisconsin‘s statutory progressive penalty requirements for OWI-related events. In 2005, Hansen was arrested in Wisconsin for OWI.4 The arresting officer who issued the civil citations, the municipal court, and the municipal attorney who prosecuted the 2005 offense did not know that Hansen had a 2003 OWI conviction in Florida.
¶6 Therefore, Hansen was charged with violating a Cedarburg ordinance, and he was prosecuted as an OWI first-offender. Hansen alleges, in a footnote in his brief, that the Ozaukee County District Attorney knew of the Florida OWI and “declined to prosecute that matter as a criminal offense due to a lack of clarity in the records.”5 However, he admits he is “unable to confirm whether that occurred.”6 Cedarburg asserts that the Florida OWI was unknown. It points to Hansen‘s Wisconsin driving record dated May 22, 2005 that was submitted by affidavit and does not show a prior OWI offense.7
¶7 However, as Hansen‘s 2016 collateral attack shows, he knew of his Florida OWI conviction, but he did not disclose it in 2005. Instead, by written stipulation signed by his attorney, he pled guilty to a municipal OWI citation and the PAC citation was dismissed.
¶8 In 2016, when Hansen again was arrested for OWI, he was charged under state statute as OWI-third because the arresting officer had knowledge of the 2005 OWI conviction, as well as the Florida conviction. Hansen collaterally attacked the validity of the 2005 municipal court conviction. He asserted that the municipal court did not have jurisdiction to prosecute him in 2005 because that OWI was factually a second offense, which is a criminal offense, for which municipal courts have no jurisdiction. He contended that his 2016 OWI violation could be counted only as a first-offense OWI because the 2005 conviction was void due to lack of municipal court jurisdiction and his 2003 Florida OWI occurred more than 10 years before his 2016 Wisconsin OWI.
¶9 In his collateral attack, Hansen moved the circuit court to vacate his 2005 conviction. The circuit court granted the motion. The court concluded that the municipal court did not have subject matter jurisdiction to adjudicate the 2005 OWI offense because factually it was a second
¶10 Hansen also moved the municipal court to vacate its judgment of conviction for the 2005 OWI.8 The municipal court denied Hansen‘s motion. It reasoned that an error in charging affected the municipal court‘s competence but not its jurisdiction. Hansen sought review of the municipal court‘s decision in the Ozaukee County Circuit Court. The circuit court reversed the municipal court, for a second time concluding that the 2005 judgment was void for lack of municipal court subject matter jurisdiction.
¶11 We granted bypass to determine whether Hansen‘s undisclosed 2003 Florida OWI conviction negated the municipal court‘s jurisdiction or impacted only its competence in 2005. We conclude that any error that occurred affected only the municipal court‘s competence. Accordingly, we reverse the circuit court.
II. DISCUSSION
A. Standard of Review
¶12 We independently interpret and apply Wisconsin statutes under known facts as questions of law. Daniel v. Armslist, LLC, 2019 WI 47, ¶13, 386 Wis. 2d 449, 926 N.W.2d 710.
¶13 Similarly, “We independently review questions of subject matter jurisdiction and competenc[e].” Booth, 370 Wis. 2d 595, ¶6 (citing Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190). Lastly, we independently review whether a party has forfeited his or her right to challenge a court‘s competence. See Booth, 370 Wis. 2d 595, ¶6 (citing Mikrut, 273 Wis. 2d 76, ¶7).
B. Statutory Progressive Penalties
1. Overview
¶14 This case involves the legal issue of whether the municipal court‘s lack of knowledge of Hansen‘s 2003 Florida conviction affected its subject matter jurisdiction or only its competence in 2005. Wisconsin‘s OWI penalties escalate with each countable offense both in regard to the nature of the conviction and in regard to the monetary and confinement consequences. As a beginning, a first offense is a civil forfeiture.9
¶15 Under Wisconsin‘s progressive penalties for OWI-related offenses, a countable offense does not have to be an OWI conviction.
¶17 Prosecutors and courts cannot knowingly disregard countable offenses. County of Walworth v. Rohner, 108 Wis. 2d 713, 721, 324 N.W.2d 682 (1982). For example, a prosecutor has no discretion to prosecute a second-offense OWI, which he knows is a second offense, as a first offense. Id. at 718. Wisconsin‘s progressive OWI penalties are mandatory directives from the legislature “to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence . . . .”
¶18 Initially, municipal courts were not involved in prosecuting OWI-related events. However, in 1957, the Wisconsin legislature authorized municipalities to adopt such traffic regulations, as long as the regulations were in “strict conformity with the state statute.” Id. at 719. The legislation required that the municipality‘s penalty was a civil forfeiture. Id. Problematically, at the time, violation of a state OWI traffic regulation was a crime. Id. Giving local governments the power to enact non-criminal versions of state traffic regulations led to inequality. Id. That is, under those provisions, a person whose OWI violation was adjudicated by a municipal court would face a civil penalty, whereas another person who engaged in the same conduct would face a criminal penalty in circuit court. Id.
¶19 In 1971, the legislature tried to remedy that inequality. Id. (citing § 66, ch. 278, Laws of 1971). First, it decriminalized violations of several state traffic regulations, including first-offense OWI. Id. at 720. Second, the law “provided a uniform statewide procedure governing prosecutions under both state statutes and conforming local regulations.” Id.
2. Wisconsin Stat. § 343.307
¶20 Progressive penalties for OWI violations are set out in
¶21
(1) The court shall count the following to determine the length of a revocation under s. 343.30(1q)(b) and to determine the penalty under ss. 114.09(2) and 346.65(2):
(a) Convictions for violations under s. 346.63(1), or a local ordinance in conformity with that section. . . . .
(d) Convictions under the law of another jurisdiction that prohibits . . . using
a motor vehicle while intoxicated . . . .
¶22 Statutory interpretation begins with the language chosen by the legislature. If the meaning is plain, we ordinarily stop the inquiry. Sorenson v. Batchelder, 2016 WI 34, ¶11, 368 Wis. 2d 140, 885 N.W.2d 362 (citing Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 119). Plain meaning is assisted by the context in which the words are used. Batchelder, 368 Wis. 2d 140, ¶11. We also interpret the statutory language reasonably “to avoid absurd or unreasonable results.” Id.
¶23
¶24 However, Hansen contends that he has no OWI convictions that can be counted when his 2016 OWI violation is adjudicated. He argues that because the municipal court did not count his 2003 Florida conviction in 2005, the court adjudicated a matter for which it had no subject matter jurisdiction. This lack of jurisdiction, he argues, voids his 2005 conviction and causes his 2003 Florida conviction to occur more than 10 years before his 2016 violation, thereby preventing his 2003 Florida conviction from having an effect on the penalty for his 2016 violation.
¶25 Hansen‘s argument fails because the municipal court had subject matter jurisdiction in 2005, as we explain directly below. Therefore, his 2005 conviction stands and it, together with his 2003 Florida conviction, must be counted in 2016 under the plain terms of
C. Invoking Municipal Court Jurisdiction
¶26
¶27 It is undisputed that at the time the proceeding in municipal court commenced, it was based on an alleged ordinance violation. Stated otherwise, in 2005, the proceeding was commenced by Hansen‘s civil traffic citations, which are the pleadings that alleged that the OWI and PAC violations arose under an ordinance.
¶28 The means by which an action or proceeding arises is central to our discussion. In another context, we have described the phrase, “arising under,” as conferring jurisdiction at the time that “the plaintiff is able, from the nature of his
¶29 Confining ourselves to the four corners of the municipal citations that commenced the municipal court proceeding, Hansen was charged with two violations of a municipal ordinance that was in conformity with statutory provisions.12 Hansen contends that subject matter jurisdiction in municipal court is defeated by his 2003 Florida conviction. Whether the alleged OWI violation was, or was not, preceded by a prior offense is not an element of an OWI ordinance violation, nor is it an element of an OWI criminal violation. State v. McAllister, 107 Wis. 2d 532, 538, 319 N.W.2d 865 (1982) (“[W]e hold that the fact of a prior violation, civil or criminal, is not an element of the crime of [OWI] either in the ordinary sense of the meaning of the word element, i.e., the incidents of conduct giving rise to the prosecution, or in the constitutional sense.“).
¶30 A defendant‘s prior convictions determine his status as a repeat offender, not his guilt. State v. Saunders, 2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263. However, the State must prove a defendant‘s status as a prior offender at sentencing, where prior convictions must be established beyond a reasonable doubt.13 Id.
Importantly, the city attorney is not required to allege or prove that the defendant had no prior offenses.
¶31 We also have said that “arising under” jurisdiction is incredibly broad. Beck v. State, 196 Wis. 242, 244, 219 N.W. 197, 199 (1928) (explaining that a court has “jurisdiction to hear and determine all questions arising under the provisions of the inheritance tax laws“). We said, “[i]t is difficult to see how a broader jurisdiction
¶32 We conclude that the municipal court did not entertain a suit for a second-offense OWI because there was no allegation of a prior offense in the charging documents.14 Therefore, he was
prosecuted for ordinance violations shown on the civil citations he was issued.
¶33 The history of the 1977 constitutional amendment that created
The proposed amendment would limit the jurisdiction of municipal courts to actions and proceedings arising under the ordinances of the municipality in which established. Presently, municipal courts could constitutionally be given jurisdiction equal to that of circuit courts, although municipal courts are statutorily restricted to hearing cases involving ordinance violations.
Jim Fullin, Summary and Analysis of 1975 Enrolled Joint Resolution 13 Relating to the State Court System 4 (1976) (on file at the David T. Prosser, Jr. Wisconsin State Law Library). The reference to “hearing cases involving ordinance violations” is telling. A municipal court is hearing such a case when that is what has been alleged in a charging document, such as a civil citation for OWI.
¶34 In 1973, a similar attempt had been made at reforming municipal courts. The proposal was summarized by a Report from the Wisconsin Legislative Council:
In present section 2, the Legislature is authorized to create municipal courts with trial powers in their municipalities equal to that of the circuit courts. Assembly Joint Resolution 5 provides that the Legislature may provide for municipal courts, but under amended section 14, the trial jurisdiction of these courts as provided by law may not be greater than the trial of ordinance violations, state traffic offenses and forfeiture actions.
Wis. Legislative Council, Report to the 1973 Legislature on Court Reorganization 10–11 (Mar. 1973) (on file at the David T. Prosser, Jr. Wisconsin State Law Library).
¶35 Of particular importance is the report‘s reference to “trial of ordinance violations.” A trial, by definition, is a fact-finding mission to determine the truth of allegations in a pleading. Trial, Black‘s
¶36 Federal case law has persuasive value in defining “arising under” because both the United States Constitution and federal statutes use the phrase, “arising under.”15 At oral
argument, Hansen argued by analogizing to federal case law on jurisdictional facts. Specifically, Hansen referred us to the United States Supreme Court‘s decision in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), which we conclude supports our conclusion that municipal court subject matter jurisdiction is invoked by the pleadings.
¶37 Arbaugh concluded that “[a] plaintiff properly invokes
¶38 However, even when Congress creates a prerequisite jurisdictional fact, it does not necessarily follow that the fact‘s non-existence when the merits of the action are tried negates subject matter jurisdiction that has been invoked by the allegations in the pleadings. Diversity jurisdiction is an example. Currently, the amount-in-controversy must be greater than $75,000.
[I]f the defendant does not lodge a challenge, the plaintiff‘s good-faith allegation controls, even if the amount in controversy does not, in fact, exceed the jurisdictional threshold. The parties’ pleading choices can thus establish jurisdiction even when the amount in controversy is, in fact, below the threshold.
Scott Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619, 631 (2017). It is not as if, should the jury return a verdict for less than $75,000, the lack of finding for the
¶39 Other federal cases also have concluded that “arising under” jurisdiction is invoked by the pleadings. In Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908), the United States Supreme Court explained, “It is the settled interpretation . . . that a suit arises under the Constitution and laws of the United States only when the plaintiff‘s statement of his own cause of action shows that it is based upon those laws or that Constitution.”18 Id. at 152 (emphasis added); see also Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (quoting Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir. 1998) (modifications in original) (“If Johnson presents ‘a non-frivolous claim under federal law; no more is necessary for subject-matter jurisdiction. A plaintiff‘s inability to demonstrate that the defendant [is an “employer“] is just like any other failure to meet a statutory requirement. There is a gulf between defeat on the merits and a lack of jurisdiction.‘“)); Kulick v. Pocono Downs Racing Ass‘n, Inc., 816 F.2d 895, 897–98 (3d Cir. 1987) (“Under either section [of federal law], a court has jurisdiction over the dispute . . . . Once the plaintiff has met [a] threshold pleading
requirement, however, the truth of the facts alleged in the complaint is a question on the merits, as is the legal question whether the facts alleged establish a violation.“).
¶40 Legal scholars have described “arising under” jurisdiction similarly. As one wrote:
[T]he “arising under” (or “brought under” or “commenced to redress a deprivation of“) jurisdictional grants do not ask historical factual questions. They ask only for a prediction from the court: Does it appear (based solely on the pleadings) that the plaintiff seeks relief created or made possible by a federal enactment?
Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev. 643, 701 (2005). The same scholar has also stated, “[a] court measuring its subject mat[t]er jurisdiction cannot look anywhere other than the affirmative claims properly stated in the complaint.” Howard M. Wasserman, Jurisdiction, Merits, and Substantiality, 42 Tulsa L. Rev. 579, 590 (2007); see also Brianna J. Fuller, Developments in the Law, III. Federal Question Jurisdiction, 37 Loy. L.A. L. Rev. 1443, 1474 (2004) (citing The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)) (modifications in original) (“If done by the book, the court should look at the allegations in the complaint to see if they would raise a substantial federal question as alleged. This should be made independently of ‘whether the claim ultimately [would] be held good or bad.‘“).
¶41 We conclude that Cedarburg invoked municipal court subject matter jurisdiction conferred by
¶42 We discussed the impact of municipal and state OWI charges on circuit court subject matter jurisdiction in Rohner. Rohner, 108 Wis. 2d 713. Paul Rohner was first convicted for OWI in 1979. Id. at 715. In 1980, he was cited for OWI under a county ordinance. Id. The case proceeded in circuit court, but pursuant to an alleged violation of a county ordinance. Id. When it went to trial, Rohner moved to dismiss the proceedings on the ground that the court lacked subject matter jurisdiction to adjudicate an ordinance violation. Id. The circuit court recognized that Rohner had a prior OWI conviction, but concluded that, nonetheless, it had jurisdiction to proceed on the 1980 OWI ordinance violation. Id.
¶43 We disagreed. Id. at 720–21. We explained “that the [S]tate has the exclusive authority to prosecute second offenses for drunk driving” under State statutes, so Rohner could not be convicted of violation of a county ordinance. Id. at 722. “The legislative goal of providing uniform traffic enforcement would be subverted if local governments were allowed to punish second offenders with first offense penalties.” Id. at 720. We held that a county ordinance “can have no application to a second or subsequent offense.” Id. at 722.
¶44 Over time, our holding in Rohner was understood as imposing a duty on city attorneys and prosecutors who had knowledge of a prior OWI conviction to correctly charge subsequent OWIs. In one such case, Albert R. Jensen was undercharged with a first-offense OWI in municipal court. City of Kenosha v. Jensen, 184 Wis. 2d 91, 93, 516 N.W.2d 4 (Ct. App. 1994). Jensen pled no contest, and the municipality was unaware of Jensen‘s prior offense. Id. Subsequently, the City realized it had made a charging error, and it asked the municipal court to vacate the judgment and dismiss the municipal citation without prejudice. Id. at 93-94. The municipal court did so, permitting the State to proceed criminally against Jensen for his second OWI. Jensen objected, saying the municipal court lacked the ability to do so. Id. at 94. The court of appeals agreed with the City of Kenosha and held that the municipal court had the inherent authority to vacate its judgment. Id. at 98. However, the court of appeals also opined:
We are not holding that in every OWI-BAC case where the municipal attorney finds out that an offense is actually a second or subsequent offense within five years, the municipal attorney must seek vacation of the municipal judgment before criminal proceedings can ensue. Quite the contrary, the State may proceed regardless of whether the municipal attorney or the municipal court first acts. As the State points out in its amicus curiae brief, a municipal court does
not have subject matter jurisdiction to try and convict a criminal operating while intoxicated. Any such municipal action is null and void [under Rohner].
¶45 Notably, “[a]t the time we decided Rohner, our case law did not clearly distinguish between the concepts of subject matter jurisdiction and competenc[e].” Booth, 370 Wis. 2d 595, ¶14 (citing Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8, 349 Wis. 2d 234, 833 N.W.2d 665). Therefore, we labeled the concern one of subject matter jurisdiction in Rohner, as did the court of appeals in Jensen.
¶46 In Booth, we took the opportunity to clarify the legal foundation of Rohner. Booth, 370 Wis. 2d 595, ¶14. The facts of Booth are highly similar to the facts of the matter now before us, except that the undercharged offense in Booth proceeded in circuit court. Id., ¶¶2–5. After a thorough discussion, we concluded that our subsequent case law on competence better explained the results in Rohner. Id., ¶14. We also withdrew language from all decisions that suggested otherwise. Id. This withdrawal included language in Jensen that stated, “a municipal court does not have subject matter jurisdiction to try and convict a criminal operating while intoxicated.” Jensen, 184 Wis. 2d at 99. It was competence that the municipal court lacked in Jensen, not subject matter jurisdiction.
¶47 The reasoning in our decision in Mikrut is important to review here because in Mikrut, we detailed the significant difference between subject matter jurisdiction and competence. We said, “If a court has the power, i.e., subject matter jurisdiction, to entertain a particular type of action, its judgment is not void even though entertaining it was erroneous and contrary to the statute.” Mikrut, 273 Wis. 2d 76, ¶14. We said that a loss of competence “can be triggered by a variety of defects in statutory procedure.” Id., ¶12. Furthermore, “a lack of competency does not negate subject matter jurisdiction or nullify the judgment . . . . Lack of competency is not ‘jurisdictional’ and does not result in a void judgment.” Id., ¶34 (citation omitted).
¶48 Upon our review of Mikrut in Booth, we reasoned: “the proper characterization of the circuit court‘s deficiency in Rohner was loss of circuit court competency to proceed to judgment rather than negation of subject matter jurisdiction.” Booth, 370 Wis. 2d 595, ¶14. We referred to Mikrut as teaching that “noncompliance with statutory mandates affects only a court‘s competency and will never affect its subject matter jurisdiction.” Id.
¶49 To explain further, subject matter jurisdiction and competence are related but distinct concepts. “Subject matter jurisdiction . . . ‘refers to the power of a . . . court to decide certain types of actions.‘” Id., ¶7 (quoting State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508). In other words, subject matter jurisdiction is about the type or category of case brought. Competence presupposes a court has subject matter jurisdiction and is about a court‘s ability to exercise its jurisdiction in an individual case. As we explained in Booth:
A circuit court‘s ability to exercise its subject matter jurisdiction in individual cases . . . may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction. The failure to comply with these statutory conditions does not negate subject matter jurisdiction but may under certain circumstances affect the circuit court‘s competency to proceed to
judgment in the particular case before the court. A judgment rendered under these circumstances may be erroneous or invalid because of the circuit court‘s loss of competency but is not void for lack of subject matter jurisdiction.
Booth, 370 Wis. 2d 595, ¶12 (quoting Mikrut, 273 Wis. 2d 76, ¶2). An objection to subject matter jurisdiction cannot be forfeited. Booth, 370 Wis. 2d 595, ¶1. However, an objection to a court‘s competence can be forfeited if it is not raised in a timely manner. Id.
¶50 Hansen argues that our rationale in Booth rested on the circuit court‘s plenary subject matter jurisdiction. Id., ¶¶8, 12. He argues that the circuit court could have heard the proceeding in Booth if the OWI had been correctly charged as a second-offense. Id. Hansen contends however, that municipal courts are courts of limited jurisdiction, and therefore, the reasoning in Booth does not apply. He says that had his 2005 violation been correctly charged, the municipal court could not have heard it. However, it was charged based on the traffic citations which were the pleadings that commenced the action. Hansen knew that he had a prior OWI, but he chose to admit to OWI-first and take advantage of the municipal court action.
¶51 In summary, we are unpersuaded that the municipal court lacked subject matter jurisdiction. Hansen‘s contention goes only to an initial inability to follow Wisconsin statutes that require progressive penalties for OWI-related offenses. Accordingly, under the facts of this case, only the municipal court‘s competence was affected by the pleading.
D. Forfeiture of Competence Objections
¶52 Having concluded that the municipal court‘s subject matter jurisdiction was properly invoked by the pleadings but that the municipal court may have lacked competence, we next address whether Hansen has forfeited his competence-based objection. We conclude that he has.
¶53 The facts of this case are similar to Booth. The defendant in Booth waited 22 years to object. Id., ¶25. We suggested the delay and subsequent objection was “an attempt to play fast and loose with the court system, which is something this court frowns upon.” Id. (citing State v. Petty, 201 Wis. 2d 337, 346–47, 548 N.W.2d 817 (1996)). For that reason, we did not exercise our inherent authority to vacate the judgment. Booth, 370 Wis. 2d 595, ¶25. Here, Hansen waited more than a decade to seek vacatur. We see no legal or equitable distinction between the passage of time in this case and the passage of time in Booth. Furthermore, we need not decide precisely when Hansen forfeited an objection to competence, because he clearly did forfeit.
III. CONCLUSION
¶54 We conclude that the 2005 pleadings filed invoked the municipal court‘s subject matter jurisdiction, which was granted by
¶55 And finally, an objection to a court‘s competence may be forfeited if it is not raised in a timely manner. Id., ¶1. Hansen was silent about his 2003 Florida OWI conviction until he was again arrested for
By the Court.—The decision of the circuit court is reversed.
CITY OF CEDARBURG, PLAINTIFF-APPELLANT-CROSS-RESPONDENT, V. RIES B. HANSEN, DEFENDANT-RESPONDENT-CROSS-APPELLANT.
¶56 DANIEL KELLY, J. (concurring). I join the majority‘s opinion in its entirety. The sole purpose of my concurrence is to address the dissent‘s deft, but pointless, reduction of a straw man to a fine powder.
¶57 This case calls for us to determine whether the municipal court had subject matter jurisdiction over the case it heard, and if so, whether it was competent to hear it. When we talk about subject matter jurisdiction, we are addressing a court‘s ability to hear a particular type of case. City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738 (Subject matter jurisdiction “refers to the power of a court to decide certain types of actions.” (quoted source omitted)). When we talk about competence, on the other hand, we are asking whether a court should have heard a specific case. Id., ¶21 (“[A] failure to comply with a statutory mandate pertaining to the exercise of subject matter jurisdiction may result in a loss of the circuit court‘s competency to adjudicate the particular case before the court.” (quoted source omitted)). Here, we must determine whether the municipal court had subject matter jurisdiction over the type of case brought against Mr. Hansen, and whether it was competent to hear this specific case.
¶58 The analytical engine powering the dissent is its failure to keep these concepts distinct. But perhaps more surprising than that is the point at which the muddling of the two began. The dissent insists that we may not analyze the municipal court‘s subject matter jurisdiction with respect to the case it actually heard. Instead, it says, we are supposed to act as if the municipal court heard something it refers to as a “second-offense OWI” and then perform the jurisdictional analysis on that non-existent case. Based on its analysis of this case that was not, the dissent concludes that the municipal court did not have subject matter jurisdiction to hear the actual case it did hear. So its premise is a straw man: “[A] municipal court lacks the power to sentence someone convicted of a subsequent OWI offense precisely because that charge cannot be an ordinance violation, no matter how it is pled.” Dissent, ¶104 n.8.
¶59 Why is this a straw man? Because Mr. Hansen was not charged with, convicted of, or sentenced for, a “second-offense OWI.”1 Instead, the City cited Mr. Hansen
municipality‘s ordinance adopting the statutory prohibition against operating a motor vehicle while “[u]nder the influence of an intoxicant” (“OWI“).
¶60 But for the dissent, none of this matters in determining what type of case the municipal court heard. Apropos of quite literally nothing, the dissent believes the municipal court wasn‘t really hearing an OWI ordinance violation. Instead, contra the entirety of the record, the dissent assumes the municipal court was hearing a “second-offense OWI.” Even if such a violation existed (it doesn‘t), the dissent says it wouldn‘t matter what offense the prosecuting agency actually presented to the municipal court, or what evidence the court heard, or what judgment it
Although the majority uses the term “first-offense OWI” and “second-offense OWI” as harmless shorthand references, when the dissent uses them it‘s clear they are driving its legal analysis. So, for example, it says that “[a] first-offense OWI citation for someone with a prior countable OWI offense is a violation that does not exist at law.” Dissent, ¶113 n.10 (emphasis in original). I suppose it‘s true that there is no such thing as a first-offense OWI, but only because there is no such thing as any OWI offense defined by the number of prior OWI convictions (or lack thereof). An OWI offense stands alone, without reference to or reliance on the defendant‘s prior OWI convictions. This error suffuses the dissent‘s reasoning so thoroughly that it would be cumbersome to call it out each time it occurs. So I won‘t.
entered, or which sanctions it imposed.2 Instead, it believes the case is properly defined and categorized solely by the defendant‘s actions, “no matter how it is pled.” Dissent, ¶104 n.8.
¶61 “No matter how it is pled“? It is hornbook law that the pleadings define, form, and create the claims the court adjudicates: “The pleading is to define the pleader‘s position in the pending litigation.” Hansher v. Kaishian, 79 Wis. 2d 374, 385, 255 N.W.2d 564 (1977) (emphasis added). The pleadings “frame the issues to be resolved in the action . . . .” Id. (emphasis added). “The function of pleadings is . . . creation of the issue(s) to be tried.” Knapke v. Grain Dealers Mut. Ins. Co., 54 Wis. 2d 525, 533, 196 N.W.2d 737 (1972) (emphasis added).
¶63 Perhaps the dissent‘s insistence that we ignore the pleadings’ content grew out of the close similarity between the actual case we are considering and the case that should have been brought against Mr. Hansen (an OWI violation seeking civil penalties versus an OWI violation seeking criminal penalties). The dissent‘s logical error will fluoresce if we observe how it would function when the charges are not so similar. Suppose that, instead of driving drunk, someone (let‘s call him Mr. Smith) robbed an individual as he was walking through a Cedarburg park. Suppose further that, instead of arresting Mr. Smith for robbery, the police cited him for disorderly conduct (a violation of Cedarburg‘s ordinances). And finally, suppose that the municipal court heard the disorderly conduct case, entered judgment against Mr. Smith for disorderly conduct, and assessed a fine allowed by the ordinances for such a violation. Now, years later, Mr. Smith appears before us claiming——just like Mr. Hansen——that the judgment against him is null and void because the municipal court lacked subject matter jurisdiction over his case.
¶64 If we were to employ the dissent‘s reasoning, Mr. Smith would succeed. He committed robbery, he would tell us, not disorderly conduct. So when the municipal court heard the disorderly conduct case, it was actually purporting to exercise jurisdiction over a robbery case. And because municipal courts have no subject matter jurisdiction over robbery cases, the judgment against him must be a nullity. The dissent‘s analysis would require the conclusion that “a municipal court lacks the power to sentence someone convicted of a [robbery] precisely because [a robbery] cannot be an ordinance violation, no matter how it is pled.” Dissent, ¶104 n.8 (creative editing added).
¶65 Now, it is certainly true that if the City (in my hypothetical) had pled a robbery instead of disorderly conduct, the municipal court would have rightly dismissed the complaint for lack of subject matter jurisdiction. But must it also dismiss the case when the City pleads disorderly conduct instead of robbery? Of course not. There is no legal theory in our canon
has no subject matter jurisdiction. So the offense the charging agency pleads is not just important, it is nigh on dispositive.5
¶66 The dissent says this illustration is a mere curiosity because “a person can validly be charged with a disorderly conduct ordinance violation regardless of whether a more serious charge is warranted, but cannot be given a citation for first-offense OWI unless it is in fact a first-offense OWI.”6 Dissent, ¶113 n.10. I could not have crystallized the dissent‘s logical hitch better than that statement. Yes, Mr. Smith could be cited for disorderly conduct even though all the facts add up to robbery (a crime over which the municipal court has no subject matter jurisdiction), but only because pleadings define the offense the court is adjudicating. And in my illustration the pleadings described an offense over which a municipal court has subject matter jurisdiction. It must also be true, therefore, that if the pleadings describe an OWI ordinance violation, then the municipal court has jurisdiction over the case even though the totality of the facts add up to an offense for which criminal sanctions are available. That is to say, what is true for the first clause in the quote must also be true for the second clause. So the quote evidences a logical glitch that is causing the dissent to reject the pleading‘s definitional power in the OWI context even as it accepts it in my illustration.
¶67 Now we arrive at the only meaningful distinction between my illustration and
¶68 The answer, quite obviously, is that it cannot inasmuch as a statute cannot revoke what a constitution grants. State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, ¶71, 334 Wis. 2d 70, 798 N.W.2d 436 (Prosser, J., concurring) (“Constitutional commands cannot be changed at the whim of the legislature; statutory provisions may.“). The source of subject matter jurisdiction for both municipal courts and circuit courts is the Wisconsin Constitution,7 a source impervious to statutory modifications. We have already recognized this foundational principle in the OWI context, where we said that restricting a prosecutor‘s charging discretion does not, and cannot, affect a court‘s subject matter jurisdiction: “[N]oncompliance with statutory mandates [that is, the charging decision] affects only a court‘s competency and will never affect its subject matter jurisdiction.” Booth, 370 Wis. 2d 595, ¶14. So a statute limiting a prosecutor‘s charging discretion can do nothing to a municipal court‘s subject matter jurisdiction.
¶69 If that is so (and it is), then we return full circle to the dissent‘s problematic understanding of what a pleading is. The dissent‘s conclusion depends on the premise that pleadings do not define, form, or create the issues to be tried. Instead, it must assume that a pleading‘s contents automatically conform to, or are supplemented by, someone‘s birds-eye view of all the facts. That is a concept entirely unknown to the law. See Hansher, 79 Wis. 2d at 385; Knapke, 54 Wis. 2d at 533.
¶70 With these principles in mind, the unavoidable conclusion is that the municipal court had subject matter jurisdiction to hear the case it heard. We all agree that municipal courts have subject matter jurisdiction over OWI ordinance violations. And as discussed above, the pleadings define the type of action the municipal court adjudicates. The pleading in this case said Mr. Hansen had violated Cedarburg, Wisconsin Municipal Code § 10-1-1(a) (2005). That ordinance adopted “the statutory provisions in Chapters 340 to 348 of the Wisconsin Statutes, describing and defining regulations with respect to vehicles and traffic,” except for “any regulations for which the statutory penalty is a fine or term of imprisonment or exclusively state charges . . . .” Because Cedarburg did not adopt any criminal penalties, the offense described in the pleading can be nothing but an OWI ordinance violation punishable by civil penalties.
¶71 According to our law (but not according to the dissent, of course) the pleading defined the case as a type of action over which the municipal court had subject matter jurisdiction. And the proceedings never deviated from that foundational definition. It did not hear evidence that would require imposition of criminal sanctions, and it did not in fact impose a criminal sanction. From start to finish, therefore, the “type of action[]” over which the municipal court presided remained an ordinance violation. And because it was the type of matter the constitution entrusts to municipal courts, the municipal court had subject matter jurisdiction over Mr. Hansen‘s case.
¶72 But just because the municipal court had subject matter jurisdiction does not mean the municipal court should have adjudicated Mr. Hansen‘s case. Not because the case was of the wrong type, but because a piece of information (unknown to the City and the municipal court at the time) triggered a statutory command that Mr. Hansen be prosecuted as a criminal instead of an ordinance violator. This is where the concept of “competency” plays its role. Whereas subject matter jurisdiction addresses the “type” of case a court may hear, “competency refers to its ‘ability to exercise the subject matter jurisdiction vested in it’ . . . .” Vill. of Elm Grove v. Brefka, 2013 WI 54, ¶16, 348 Wis. 2d 282, 832 N.W.2d 121, amended, 2013 WI 86, 350 Wis. 2d 724, 838 N.W.2d 87 (quoted source omitted). Consequently, a court may simultaneously have subject matter jurisdiction over a case, but have no ability to exercise it.
¶73 Because Mr. Hansen had a prior OWI, his commission of an OWI violation was punishable by criminal sanctions. See generally
¶74 The dissent‘s straw man indelibly colored its understanding and discussion of Booth, Rohner, and City of Kenosha v. Jensen. But if it had reoriented its analysis to account for the fact that the municipal court adjudicated an OWI ordinance violation, it would have found that these cases are consistent with the court‘s conclusion today. This trio (after Booth‘s adjustment to account for the difference between competency and subject matter jurisdiction) teaches that circuit courts have exclusive jurisdiction to prosecute OWI violations punishable by criminal
sanctions, and that they lack the competency to adjudicate such cases as ordinance violations. To the extent the court of appeals suggested in Jensen that the municipal court had heard a criminal OWI case, it made the same mistake as the dissent. Eliminating that mistaken assumption and applying the Booth adjustment brings Jensen into perfect alignment with both Booth and Rohner.
¶75 The dissent derides Booth‘s correction of prior cases as a “chiropractic adjustment,” whatever that means, but otherwise refuses to acknowledge its import with respect to Banks and Jensen. The Booth analysis applies to municipal courts as well as circuit courts. The effects are not as broad because a municipal court‘s subject matter is not as broad as that of a circuit court. But with respect to the matter at hand, there is no relevant distinction. Both the circuit court in Booth and the municipal court here had subject matter jurisdiction to hear OWI ordinance cases. In both Booth and this case, it turns out that the defendant should not have been charged with an OWI ordinance violation. That error, however, affects competency, not jurisdiction. As we said in Booth, “noncompliance with statutory mandates affects only a court‘s competency and will never affect its subject matter jurisdiction.” 370 Wis. 2d 595, ¶14. Therefore, we concluded, “the proper characterization of the circuit court‘s deficiency in Rohner was loss of circuit court competency to proceed to judgment rather than negation of subject matter jurisdiction.” Id. There is no reason this principle does not apply to municipal courts just as it does to circuit courts. Indeed, it must apply with equal force to municipal courts, and could hardly be otherwise. The Wisconsin Constitution‘s conferral of subject matter jurisdiction on municipal courts is no more susceptible to statutory modification than its conferral of subject matter jurisdiction on circuit courts. Our OWI statutes can deprive the municipal court of competency to hear a specific case, but as we recognized in Booth, they can never affect the court‘s subject matter jurisdiction. Consequently, because the municipal court had subject matter jurisdiction to hear an OWI ordinance violation, Booth says its jurisdiction cannot be dislodged simply because the case should have been charged as a criminal OWI violation. It merely loses competence.
¶76 The dissent‘s refusal to read Banks and Jensen in light of Booth apparently stems from its belief that we shared its straw man‘s assumption that we must perform the jurisdictional analysis on the case that should have been brought rather than the case the court actually adjudicated. But we did not, and the entirety of Booth‘s analysis rejects that assumption. The whole point of Booth was to determine whether the circuit court had competency to adjudicate the case presented to it——an OWI ordinance violation. Our conclusion
¶77 The dissent contains one more significant error that bears some discussion. It correctly observes that subject matter jurisdiction is always subject to challenge. State v. Bush, 2005 WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 holding modified by Booth, 370 Wis. 2d 595 (“[C]hallenges to subject matter jurisdiction cannot be waived[.]“). But in making that observation, it simultaneously misconstrues the nature of such a challenge:
If the pleading, trial, judgment, and consequences imposed effectually establish subject-matter jurisdiction, how can that oft-repeated precedent allowing subject-matter jurisdiction challenges after the fact still be true? This is not the way subject-matter jurisdiction works in federal court, and this is not the way we have ever described the subject-matter jurisdiction of municipal courts or other judicial bodies with limited subject-matter jurisdiction until today.
Dissent, ¶113 n.10.
¶78 The key to a successful jurisdictional challenge is understanding that it is a subtractive endeavor. That is to say, a litigant setting out to demonstrate a court lacks jurisdiction must establish that one or more conditions or facts necessary to the invocation of jurisdiction does not exist. State ex rel. R.G. v. W.M.B., 159 Wis. 2d 662, 668, 465 N.W.2d 221 (Ct. App. 1990) (“The party claiming that a judgment is void for lack of subject matter jurisdiction has the burden of proving subject matter jurisdiction did not exist.“). Thus, if the plaintiff in a federal case invokes diversity jurisdiction, the defense can defeat the court‘s jurisdiction by demonstrating one of two conditions is not true——either that the parties are not diverse, or the amount in controversy does not satisfy the threshold. Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006) (affirming the district court‘s order remanding a case to state court for lack of complete diversity of the parties); and Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) (“Unless the amount in controversy was present on the date the case began, the suit must be dismissed for want of jurisdiction.“).
¶79 The nature of the challenge is no different when considering the municipal court‘s subject matter jurisdiction. If Mr. Hansen is to succeed, he must prove that a fact or condition necessary to the invocation of the municipal court‘s subject matter jurisdiction does not obtain. We know that, pursuant to the
¶80 The dissent‘s misunderstanding of jurisdictional challenges apparently flows from its assumption that they can be additive, as opposed to subtractive, in nature. That is, it seems to believe that if a defendant‘s conduct adds up to an offense over which the municipal court does not have jurisdiction, then it necessarily follows that the defendant‘s conduct cannot comprise an offense over which it does have subject matter jurisdiction. But as demonstrated by my disorderly conduct/robbery illustration, that is most assuredly not true. And the statutory elimination of the prosecutor‘s charging discretion cannot change this because we know that statutes cannot affect constitutional grants of subject matter jurisdiction.
¶81 That is not to say that OWI ordinance violations are immune from jurisdictional challenges. To the contrary, it is simply to say that, like all other such challenges, they are subtractive in nature. An attempt to assess criminal sanctions against Mr. Hansen in municipal court, for example, would be subject to a jurisdictional challenge. Mr. Hansen would merely need to point out that criminal sanctions do not arise under a municipal ordinance. Because the municipal court only has jurisdiction over ordinance violations, with their attendant civil penalties, Mr. Hansen‘s challenge would effectively demonstrate that one of the necessary conditions to invoking the municipal court‘s subject matter jurisdiction has not been satisfied.11
¶82 There is no need to catalog the rest of the errors in the dissent‘s analysis——they are all premised on the initial assumption that we must act as though the municipal court heard a case that it did not. Because of that mistaken assumption, the dissent was unable to keep the concept of subject matter jurisdiction distinct from a court‘s competence. Without those foundational errors, the case resolves as a matter of course in a manner that I suspect even the dissent would accept. As the majority explained, objections to a court‘s competency must be timely raised, whereas objections to a court‘s subject matter jurisdiction may be raised at any time.12 Majority op., ¶49. Because Mr. Hansen‘s challenge goes to the municipal court‘s competence to hear his case, his failure to raise it in a timely manner means he may no longer challenge the judgment. Booth, 370 Wis. 2d 595, ¶25.
¶83 Because I agree that the municipal court had subject matter-jurisdiction, but
¶84 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this concurrence.
¶85 BRIAN HAGEDORN, J. (dissenting). The question in this case is whether a municipal court had subject-matter jurisdiction over an OWI offense that was brought as an ordinance violation when it should have been criminally charged as a second-offense OWI in circuit court. The majority says yes, and establishes a new rule: as long as an ordinance violation was pled, a municipal court‘s subject-matter jurisdiction is established. Respectfully, this is wrong.
¶86 A faithful application of our constitution, statutes, and cases yields a contrary result. Our law makes clear that municipal courts are courts of limited subject-matter jurisdiction that may only hear ordinance violations. A second-offense OWI is a criminal offense, not an ordinance violation, and must be brought as such. Accordingly, the municipal court lacked subject-matter jurisdiction to entertain the improperly charged OWI offense, and the judgment is null and void.
I
¶87 The basic principles governing this case are not complicated. In order to hear a particular case, a court must have power to entertain the kind of action brought. This power is known as subject-matter jurisdiction.
¶88 If a court lacks subject-matter jurisdiction, a judgment entered by the court is null and void because the court never had the power to hear the case in the first place. Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977). A court may also lose its competence——and thus be deprived of the power to enter a valid judgment——“when the parties seeking judicial review fail to meet certain statutory requirements.”2 Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶28, 349 Wis. 2d 234, 833 N.W.2d 665. But unlike the absence of subject-matter jurisdiction, a court‘s loss of competence generally does not void a prior judgment.
¶89 The subject-matter jurisdiction of circuit courts is defined by the
¶90 How then do we categorize failures to comply with various statutory requirements in circuit court? These failures are not matters of subject-matter jurisdiction——which, again, “is plenary and constitutionally-based.” Id., ¶9. Rather, statutory noncompliance implicates only a circuit court‘s competence. Id.
¶91 The subject-matter jurisdiction of municipal courts works quite differently. We begin once more with the
¶92 This limited grant of subject-matter jurisdiction is further colored by statute.3
¶93 Understanding the issue in this case, as well as prior cases on these matters, requires one additional piece of background: our statutory scheme for OWIs and its escalating penalty structure. Wisconsin statutes define the violation of operating while intoxicated in
II
¶94 With this background in mind, we turn to our cases applying these principles. In 1981, this court first explained the mandatory OWI penalty structure described above. State v. Banks, 105 Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981). Banks involved a civil forfeiture judgment entered on an OWI citation that should have been charged as a second-offense crime. Id. at 43. At the time the judgment was entered, the presiding court commissioner was “unaware” that only two weeks earlier the defendant had
¶95 We said no such violation had occurred. Instead, we stated that, because the OWI offense should have been criminally charged as a second offense,5 the proceeding before the court commissioner was “in effect a nullity for lack of jurisdiction.” Id. at 43-44. This is so because the court commissioner had no statutory authority to preside over a case involving a criminal drunk driving offense, and therefore the civil forfeiture judgment on the incorrectly charged OWI offense had been properly vacated. Id. at 40-41.
¶96 Then, in 1982, this court considered whether a prosecutor had discretion to charge what was factually a second-offense criminal OWI as a civil forfeiture ordinance violation. County of Walworth v. Rohner, 108 Wis. 2d 713, 715, 324 N.W.2d 682 (1982). The issue in Rohner arose at trial——on an ordinance violation pleading——when it was revealed that the defendant‘s OWI was a second offense. Id. at 715. After the prosecutor chose not to file a new criminal complaint, the circuit court heard the action as an ordinance violation. Id. We unanimously reversed. Id. at 722. Relying on the mandatory escalating penalty structure established by the legislature, we held that a second-offense OWI must be brought as a criminal offense. Id. at 717-18 (citing Banks, 105 Wis. 2d at 39). Charging authorities have no discretion to charge what is in fact a second-offense OWI as a first-offense civil forfeiture. Id. at 720-21. And given this, it is the State that “has exclusive authority to prosecute second offenses for drunk driving.” Id. at 722.
¶97 After Banks and Rohner, the court of appeals addressed the question of what becomes of a municipal court judgment on an OWI charge that should have been——indeed, per our earlier decisions, was required to be——brought as a criminal offense. In City of Kenosha v. Jensen, the City had moved the municipal court to vacate an OWI civil forfeiture judgment on the grounds that the court lacked subject-matter jurisdiction over an incorrectly charged OWI offense. 184 Wis. 2d 91, 92-93, 516 N.W.2d 4 (Ct. App. 1994). In raising its motion for postjudgment relief, the City informed the municipal court that, unbeknownst at the time the forfeiture judgment was entered, the defendant had been previously convicted of a separate OWI offense. Id. at 92-94. The municipal court found it necessary to vacate the judgment, as did the circuit court. Id. Likewise, before the court of appeals, the State appeared as an amici and argued that the municipal court
[W]e want to make clear what we are not deciding. We are not holding that in every [OWI] case where the municipal attorney finds out that an offense is actually a second or subsequent offense within five years, the municipal attorney must seek vacation of the municipal judgment before criminal proceedings can ensue. Quite the contrary, the State may proceed regardless of whether the municipal attorney or the municipal court first acts. As the State points out in its amicus curiae brief, a municipal court does not have subject matter jurisdiction to try and convict a criminal operating while intoxicated. Any such municipal action is null and void. See County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682, 686 (1982); State v. Banks, 105 Wis. 2d 32, 40-41, 313 N.W.2d 67, 71 (1981). As no jeopardy has attached as a result of municipal court action, the State may proceed regardless of what the municipal attorney or the municipal court does. The municipal judgment having no force or effect, it is as if it never took place.
Id. (emphasis added).
¶98 The court of appeals then rejected Jensen‘s argument that the City “knew or should have known” of the earlier offense at the time it negotiated a plea agreement for the now-vacated judgment. Id. at 100. As the court explained, “the City had no authority to enter the plea agreement in the first place” because as a factual matter the underlying OWI was a second-offense criminal charge. Id.
¶99 For several decades now, the courts of our state have understood and held that a municipal court has no subject-matter jurisdiction over a second or subsequent OWI offense, and hence, such judgments are null and void. See, e.g., State v. Strohman, No. 2014AP1265-CR, unpublished slip op., ¶¶2-3, 17 (Wis. Ct. App. Feb. 3, 2015) (citing Jensen for the proposition that “because an offense that is actually a qualified second (or greater) OWI offense can only be criminally prosecuted, any municipal proceeding regarding such an offense is ‘null and void[,]’ with any such municipal judgment ‘having no force or effect, [such that] it is as if it never took place‘“).
¶100 Three years ago, in City of Eau Claire v. Booth, we addressed whether a circuit court lacks subject-matter jurisdiction over an action based on a mischarged OWI offense. 2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738. Booth arose from a civil forfeiture judgment on a first-offense OWI that had been voided by a circuit court in reliance on Rohner. Id., ¶4. Applying the same long-established principles, we explained that mischarging an OWI does not affect a circuit court‘s subject-matter jurisdiction because circuit courts have plenary subject-matter jurisdiction under our constitution. Id., ¶¶1, 14. That is, regardless of whether an OWI is incorrectly charged as a first-offense ordinance violation or correctly charged as a second-offense crime, our constitution grants circuit courts power to hear the action and enter a judgment on the matter. Thus, even though mischarging an OWI as a civil forfeiture in circuit court constitutes a failure to abide by the mandatory OWI penalty structure, statutory noncompliance of that kind results only in a loss of the circuit court‘s competence. Id., ¶¶14, 19, 24. Playing this logic out, we determined that the defendant forfeited her competence challenge after waiting 22 years to bring a collateral attack. Id., ¶25.
III
¶102 Applying the constitutional text and our precedent to the case before us today yields a clear outcome. Unlike circuit courts, municipal courts have limited subject-matter jurisdiction. They can only hear municipal ordinance violations. Relying on the OWI statutory scheme, our cases make clear that an ordinance violation for a second-offense OWI does not exist at law; a second-offense OWI is a criminal matter. The State has exclusive authority to prosecute such charges, and circuit courts have exclusive subject-matter jurisdiction to hear such cases. Thus, a municipal court has no constitutional grant of power——i.e., no subject-matter jurisdiction——to entertain an action based on an OWI offense that statutorily should have been and must be charged as a second-offense OWI. Any judgment or order entered in such an action is null and void.
¶103 The majority‘s contrary conclusion finds its footing in a single proposition that amounts to a false foundation. It maintains that municipal court subject-matter jurisdiction is established based on the four corners of an ordinance citation alone. Majority op., ¶¶3, 29, 54. The majority‘s discussion in support of its pleading-establishes-jurisdiction rule covers three areas. First, the majority relies on the “arising under” language in
¶104 Starting with the constitution, as already explained, municipal court jurisdiction is limited to “actions and proceedings arising under ordinances of the municipality in which established.”
¶105 With no Wisconsin law to support its cause, the majority seeks refuge in the law of federal jurisdiction. The majority suggests subject-matter jurisdiction in federal court works in a similar way to the rule it is announcing. Not even close. While federal jurisdiction must be invoked in a pleading, it is most certainly not established in all cases simply on the grounds that it was pled.
¶106 Like municipal courts in Wisconsin, federal courts are courts of limited subject-matter jurisdiction, empowered only to hear cases as authorized by the U.S. Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, jurisdiction must be affirmatively alleged by citation to a statutory basis or by sufficient factual allegations. Id. Mere pleading of federal jurisdiction doesn‘t settle the matter, however. Rather, federal jurisdiction is subject to challenge throughout the proceeding. See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a federal court.“); see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction, because it involves a court‘s power to hear a case, can never be forfeited or waived.“). Importantly, federal courts themselves are obligated to independently ensure that jurisdiction is had at all stages of a proceeding.9 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999). Thus, even on appeal, a federal court must dismiss any action upon discovery that jurisdiction is not had or was not had by a court below. Id.
¶107 It is hard to overstate the obvious: the majority‘s rule, which it presents as somehow supported by the law of federal jurisdiction, stands instead in direct conflict. If mere invocation is enough, how is it that a party can challenge jurisdiction after it has been pled? What of the federal court‘s independent obligation to ensure jurisdiction is had——again, regardless of the invocation of subject-matter jurisdiction in a pleading? How is it that a federal appeals court can dismiss the case for lack of subject-matter jurisdiction years after the pleading was filed? None of the cases the majority cites support the proposition that federal jurisdiction is conclusively established by virtue of its invocation in a pleading. It is not. Federal jurisdiction is challengeable in federal court regardless of the sufficiency of the pleading. The majority‘s rule granting subject-matter jurisdiction through a pleading finds no support in Wisconsin or federal law.
¶108 This lack of support notwithstanding, the majority aims to align its conclusion here with several of the on-point Wisconsin cases explained above. Across eight paragraphs, the majority describes those cases and closes by simply reasserting that subject-matter jurisdiction is had based on the allegations in the citation. Majority op., ¶¶42-50. No effort is made to engage the actual holdings or reasoning of the cases. The majority fails to engage our cases because it cannot; its proposed rule runs right over what those cases actually say.
¶109 For instance, the majority concludes the charging document alone establishes subject-matter jurisdiction. But in Banks, the defendant pled to a first-offense civil forfeiture, and that fact made no difference when we determined that the entire proceeding was “in effect a nullity” because the court commissioner had no jurisdictional authority to hear what was in fact a second-offense criminal OWI. 105 Wis. 2d at 36, 43. Jensen reached the same conclusion: a judgment was entered on a civil forfeiture, but later vacated because the incorrectly charged OWI meant the entire action was “null and void” because the municipal court had no subject-matter jurisdiction. 184 Wis. 2d at 93, 99. Neither of these outcomes are consistent with, much less possible under, the majority‘s new rule.
¶110 The majority also suggests, albeit indirectly, that the prosecuting authority‘s knowledge of a prior offense might affect a court‘s subject-matter jurisdiction. See Majority op., ¶¶14, 17, 44. But in Banks, we noted that the court commissioner entered a civil forfeiture judgment “unaware” of the defendant‘s prior offense. 105 Wis. 2d at 36. This lack of knowledge had no effect on our conclusion that that judgment was null and void because there was no subject-matter jurisdiction. Id. at 41, 43. Similarly in Jensen, the municipal court was without subject-matter
¶111 Along these lines, while the majority never quite says so, it implies that Booth stands for the proposition that statutory noncompliance equals a competence problem no matter what court you‘re dealing with. As explained above, however, Booth was about statutory noncompliance and loss of competence in circuit courts, which have plenary subject-matter jurisdiction under our constitution. Regardless of whether an OWI is incorrectly charged as a first-offense ordinance violation or correctly charged as a second-offense crime, a circuit court has subject-matter jurisdiction to hear the action and enter a judgment on the matter. A municipal court‘s subject-matter jurisdiction, on the other hand, hinges entirely on whether the offense is actually an ordinance violation. No “Booth adjustment,” in the concurrence‘s parlance, allows us to paper over the constitution‘s very different grants of subject-matter jurisdiction to circuit and municipal courts.
¶112 Collecting all of the above, if the majority is correct, and pleading an OWI ordinance violation establishes subject-matter jurisdiction, Banks and Jensen must be overruled. If an OWI offense is considered correctly charged solely because a municipal prosecutor lacked knowledge of a prior offense, Rohner——and every other case that explains and relies on the mandatory nature of the OWI penalty structure, including Booth——needs to be modified. See Banks, 105 Wis. 2d at 39-43; City of Lodi v. Hine, 107 Wis. 2d 118, 122-23, 318 N.W.2d 383 (1982); Rohner, 108 Wis. 2d at 717-18; State v. Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852 N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24. Rather than forthrightly acknowledge any of this, the majority simply sidesteps any substantive engagement with these decisions.
¶113 It is difficult to figure out the consequences of a rule that pleading conclusively establishes subject-matter jurisdiction——a rule heretofore unknown in the law.10 What if the city attorney finds out midway through the proceeding (i.e., post-pleading) that a prior OWI conviction exists,
Further, the concurrence‘s rule suffers from the same fatal disease as the majority‘s. Our cases have repeatedly said subject-matter jurisdiction can always be challenged, even after a case is completed, and that a defect in subject-matter jurisdiction renders a previously entered judgment null and void. E.g., Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977) (“When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time.“). If the pleading, trial, judgment, and consequences imposed effectually establish subject-matter jurisdiction, how can that oft-repeated precedent allowing subject-matter jurisdiction challenges after the fact still be true? This is not the way subject-matter jurisdiction works in federal court, and this is not the way we have ever described the subject-matter jurisdiction of municipal courts or other judicial bodies with limited subject-matter jurisdiction until today.
The concurrence also sets up a curious hypothetical regarding a municipal court‘s judgment for disorderly conduct. The obvious problem with this is that a person can validly be charged with a disorderly conduct ordinance violation regardless of whether a more serious charge is warranted, but cannot be given a citation for first-offense OWI unless it is in fact a first-offense OWI. A first-offense OWI citation for someone with a prior countable OWI offense is a violation that does not exist at law. It is not and cannot be an ordinance violation. This quirk of our OWI statutes is unlike other areas of law. The concurrence finds this “revolutionary“; but as our cases make clear, it is actually the long-established way we have interpreted our OWI statutory scheme.
Finally, the concurrence suggests a “Booth adjustment” to our prior cases is all the chiropractic correction needed to realign those decisions. Concurrence, ¶74. But it does not really conduct an accounting of those cases. Instead, its effort to synthesize our body of cases rests wholly on its novel subject-matter jurisdiction analysis. Booth was founded entirely on the plenary subject-matter jurisdiction of circuit courts. Any effort to make it do more than that here begs the question.
¶114 No small part of the reason we are left guessing at potential unintended consequences is the fact that none of the briefing or arguments in this case went to the majority‘s holding that a municipal court‘s subject-matter jurisdiction is established by pleading an ordinance violation, or its suggestion that the prosecuting authority‘s knowledge of a prior OWI offense is relevant to that question. All of this innovation originates solely from the majority‘s own inspiration.
¶115 So far as I can tell, the upshot of the majority is if municipal courts accidentally or unintentionally violate the constitution by deciding a case the constitution says they have no power to decide, they haven‘t actually violated the constitution at all. Good intentions notwithstanding, the constitution‘s limited grant of power to municipal courts should be read to mean what it says.
¶116 Under our long-established law, the straightforward answer to the issue in this case is that a municipal court lacks subject-matter jurisdiction over an OWI offense that was brought as an ordinance violation when it should have been criminally charged as a second-offense OWI in circuit court. The incorrectly charged OWI here is therefore null and void. I respectfully dissent.
¶117 I am authorized to state that Justices ANN WALSH BRADLEY and REBECCA FRANK DALLET join this dissent.
Notes
The dissent embedded a pretty significant error of law in its straw man, to wit, its belief that there is something known as a “second-offense OWI.” There isn‘t. Nor is there any such thing as a “first-offense OWI.” The substantive offense known as “OWI” exists without reference to the number of prior OWI convictions. Here‘s why.
The definition of an OWI offense appears in
“The question in this case is whether a municipal court had subject-matter jurisdiction over an OWI offense that was brought as an ordinance violation in municipal court when it should have been criminally charged as a second-offense OWI in circuit court. The majority says yes, and establishes a new rule: As long as an ordinance violation was pled, a municipal court‘s subject-matter jurisdiction is established. Respectfully, this is wrong.” Dissent, ¶85.
A statutory mandate that is “central to the statutory scheme” deprives a court of its competence. See Xcel Energy Servs., Inc., 349 Wis. 2d 234, ¶28 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶10, 273 Wis. 2d 76, 681 N.W.2d 190).The dissent says this is inconsistent with the court‘s opinion that the pleadings, alone, establish jurisdiction: “I have no idea how both rules can be true. Either subject-matter jurisdiction is established based on the pleading, and is not challengeable afterwards, or not.” Dissent, ¶113 n.10. It does not appear the dissent has accounted for ¶38 n.17 and ¶39 n.18 of the majority opinion, both of which acknowledge that subject matter jurisdiction is subject to challenge after pleading. I have also addressed the evidence, judgment, and penalty phases of the case in the interest of comprehensiveness. The majority opinion contains no suggestion that it would disagree with the proposition that the municipal court must remain within its constitutionally-conferred jurisdictional boundaries throughout the proceedings.
BecauseIt is only “nigh on” dispositive because, as already noted, we must also account for the evidence produced and the court‘s disposition of the matter.
Starting with Banks, our cases have consistently interpreted the OWI penalty structure to require mandatory escalating penalties with each subsequent offense. See State v. Banks, 105 Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981); City of Lodi v. Hine, 107 Wis. 2d 118, 122-23, 318 N.W.2d 383 (1982); County of Walworth v. Rohner, 108 Wis. 2d 713, 717-18, 324 N.W.2d 682 (1982); State v. Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852 N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24.Once again, the dissent‘s analysis depends on its belief in an offense known as “first-offense OWI.”
The majority latches onto the fact that the phrase “arising under” is also found in federal law. It is hornbook law that federal-question subject-matter jurisdiction is invoked when the pleading party presents a colorable claim “arising under” the Constitution or laws of the United States. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (citingSee