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Appellate Procedure – Waiver: Competency of Trial Court

Village of Trempeleau v. Mike R. Mikrut, 2004 WI 79, affirming unpublished decision

Issue/Holding: (Emphasis supplied)

¶15. Mikrut did not raise his challenge to the circuit court’s competency until long after the judgment against him had been upheld on appeal. The circuit court and the court of appeals therefore held that the argument was waived. ……

¶18. Wisconsin case law is inconsistent on the question of whether a challenge to the circuit court’s competency is subject to the common-law rule of waiver. …

¶26. To summarize, the cases regarding the waiver rule as applied to competency challenges have variously held as follows: 1) competency challenges cannot be waived at all (Nadia S.); 2) competency challenges cannot be waived if the alleged lack of competency relates to noncompliance with mandatory statutory time limitations, but no clear rule exists in other situations (B.J.N.); 3) competency challenges may be raised for the first time on direct appeal but are waived if not raised on direct appeal, that is, if raised for the first time on collateral challenge (Mueller); 4) competency challenges are waived for purposes of appeal if not first raised in the circuit court (G.L.K.); and 5) competency challenges are waived if not raised in the initial pleading (Wall). This conflicting body of case law cannot be reconciled.

¶27. We conclude that the following principles are sound and should be maintained: the common-law waiver rule applies to challenges to the circuit court’s competency, such that a challenge to the court’s competency will be deemed waived if not raised in the circuit court, subject to the inherent authority of the reviewing court to disregard the waiver and address the merits of the unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35. Because competency does not equate with subject matter jurisdiction, we see no reason not to apply the rule of waiver to these challenges as a general matter. A judgment rendered where competency is lacking is not void for lack of subject matter jurisdiction. Accordingly, a categorical rule that competency objections can never be waived is not justified. We withdraw the overbroad language in Nadia S. that attributed such a categorical rule of nonwaiver to the decision in B.J.N.

¶28. On the other hand, the approach in Wall was also unjustified. The failure to raise an objection to competency in a notice of appearance does not waive the right to bring such an objection in the circuit court action. We overrule Wall to the extent that it purported to establish such a restrictive pleading waiver rule.

¶30. Accordingly, we hold that challenges to the circuit court’s competency are waived if not raised in the circuit court, subject to the reviewing court’s inherent authority to overlook a waiver in appropriate cases or engage in discretionary review of a waived competency challenge pursuant to Wis. Stat. §§ 751.06 or 752.35. Because the competency challenge in this case is not premised upon noncompliance with statutory time limitations, we do not decide whether the particularized rule of nonwaiver stated in B.J.N. (statutory time periods cannot be waived) should be maintained.

¶38. We conclude that challenges to the circuit court’s competency are waived if not raised in the circuit court. The waiver rule is a rule of judicial administration, and therefore a reviewing court has inherent authority to disregard a waiver and address a competency argument in appropriate cases. Also, Wis. Stat. §§ 751.06 and 752.35 may provide an avenue for discretionary review of an otherwise waived competency challenge in extraordinary cases. In addition, Wis. Stat. § 806.07(1)(h) may provide a vehicle for collateral relief from judgment on the basis of an otherwise waived competency argument–again, however, only in extraordinary cases. Mikrut’s challenge to the circuit court’s competency was waived.

 

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