¶15 Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein. Section 948.22(2) in pertinent part provides, “Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty . . . .” On the face of § 948.22(2), the elements of this crime are: (1) an intentional failure to provide child support; (2) that continued for 120 or more consecutive days; and (3) actual or constructive knowledge of the legal obligation to provide support. The Jury Instructions Committee has come to the same conclusion, proposing these same three elements in Wisconsin Jury Instructions——Criminal 2152. 
 …. We have recognized that the work of the Wisconsin Criminal Jury Instructions Committee, while not precedential, may be persuasive. State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993).
Issue/Holding2: Although “child support” is defined by § 948.22(1)(a) as an amount ordered “by a court of competent jurisdiction,” that “phrase is not an element of the crime of failure to pay child support under § 948.22(2),” and therefore its existence need not be submitted in the jury instructions, ¶16.
It’s possible to agree with the result (whether a court of competent jurisdiction issued an order is not for the jury to decide) and yet find the court’s reasoning less than satisfying. Clearly, one of the elements of non-support is knowledge of the legal obligation to provide support. How can a support obligation not be an element? In theory, you could be misinformed as to your obligation – you would then know that you were obliged to pay some amount, but that knowledge would be incorrect: is the court seriously saying that you could still be guilty, given that an order by a “competent” court isn’t an element? That can’t be right, and the court can’t be saying as much.Something’s fundamentally missing from the court’s analysis; to see what it is, you have to start at the beginning, which is precisely where the court goes astray. The court begins its analysis with § 939.12 (“A crime is conduct….”), as previously applied by State v. McAllister, 107 Wis. 2d 532, 535, 319 N.W.2d 865 (1982) (prior OWI conviction is penalty enhancer, not element) and draws this conclusion:
… whether a court of competent jurisdiction issued the child support order  focuses on the characteristics of a court. By contrast, elements of a crime generally are focused on a defendant’s conduct. See McAllister, 107 Wis. 2d at 535, 538. … All of the acts described in subsection (2) focus on the conduct of the defendant, while the phrase relied on by Smith focuses on the characteristics of a court. This leads us to conclude that the phrase is not an element of the crime of failure to pay child support under § 948.22(2).
But this analysis simply can’t be correct. A particular mental state isn’t “conduct,” yet is of course commonly an element; indeed, scienter is an element of this very offense. Status offenses include elements that aren’t “conduct” (such as “felon” in possession of a firearm). For that matter, the harm suffered by a victim can’t fairly be termed “conduct” – it is, rather, the consequence of conduct. No need to elaborate further; it’s perfectly clear that simply labeling the issue non-conduct isn’t decisive as to whether or not it’s an element. And it’s equally clear why § 939.12 doesn’t advance the analytical ball: of course, crime is conduct-based – that’s simply another way of stating the obvious, that we don’t countenance thought crimes, and in that sense the definition is virtually tautological. The court’s approach, then, is much too concrete, and distinctly unhelpful.This doesn’t mean the court’s conclusion was necessarily incorrect. We should first pause to recognize that we’re in the midst of a sentencing revolution that affects the discernment of “elements” of any given crime – the Apprendi-Booker-Blakely line of cases – but pause further to acknowledge that this case doesn’t quite implicate those principles. (No claim can be made that proof of “court of competent jurisdiction” was needed to impose punishment beyond a statutory maximum penalty.) However, the ferment from those cases helps leaven the analysis in this one: as one especially astute commentator has recently noted, “the fact-law distinction” which allocates roles respectively to the jury and the judiciary under the Seventh Amendment in civil cases might have application to Sixth Amendment jurisprudence. (Paul F. Kirgis, “The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment can Teach the Sixth.”) Kirgis’ analysis is worth reading, if you’ve got the time, but his basic point is that the fault line between fact and law isn’t always easy to discern, but is informed by a pragmatic, somewhat intuitive understanding of which body “is best suited to decide a particular issue. … (W)hen judges use the terms ‘fact’ and ‘law,’ they are using those terms conventionally to describe a normative conclusion that a particular matter should be decided by a judge (law) or should be decided by a jury (fact).” That gets to the nub of the present problem, doesn’t it? Deciding whether a court exercised “competent jurisdiction” is so legally technical, that it only makes sense to have it determined by judge rather than jury. In other words, the law-fact, and not the conduct-characteristics, distinction ought to be decisive. For a case illustrating this principle, see State v. Leist, 141 Wis.2d 34, 37-38, 414 N.W.2d 45, 46-47 (Ct. App. 1987) (trial court empowered to define an element; “It is not within the province of the trial court, however, to determine as a matter of law that certain facts before the jury fit within the given definition. In that situation, the trial court is applying the facts to the law …”). In any event, this is a complex area that will bedevil the courts so long as they embrace the sort of ad hoc approach undertaken in Smith. See, e.g., U.S. v. Smith-Baltiher, 424 F. 3d 913 (9th Cir 2005), for the idea that, because alienage is element of offense of illegal entry, the defendant” is entitled to have the jury determine that question at trial,” citing, not suprisingly, Apprendi; the court, incidentally, rejected an argument that this shouldn’t be a jury question because citizenship is a status decided exclusively by the AG. And compare State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005) (validity of DV no-contact order not element of offense of violating the order, but instead “is a question of law appropriately within the province of the trial court to decide as part of the court’s gate-keeping function”; court’s analysis seems driven by fact-law distinction noted above); People v. McGee, 133 P. 3d 1054 (Cal 2006) (court rather than jury determines whether record of earlier proceeding establishes defendant’s conviction of qualifying sentencing enhancer: “Such a function is a task for which a judge is particularly well suited and is quite different from the type of factual inquiry —assessing the credibility of witnesses or the probative value of demonstrative evidence — ordinarily entrusted to a jury”).
(“The distinguishing characteristics among questions of law, questions of fact, and mixed questions of law and fact are uniquely examined by the authors of a monograph developed for the Federal Judicial Center entitled The Analysis and Decision of Summary Judgment Motions,” as quoted at length in State v. Kendall, 639 SE 2d 778 (WV 2006), fn. 2.)
This approach doesn’t necessarily make court-of-competent-jurisdiction an element. If it were an element, then the holding of United States v. Gaudin, 515 U.S. 506 (1995) (at least arguably doing away with the fact-law distinction so far as elements are concerned, and absolutely requiring submission of all elements to the jury) could well dictate relief, as the court of appeals held. Indeed, one might surmise that the court’s slapdash approach was informed by concern that treating the matter as anything remotely like an element would trigger Gaudin. But the court could have used the fact-law distinction, nonetheless, as an aid of statutory construction: it would be unreasonable to assume that the legislature intended to delegate such an obviously legal matter to the jury. As noted above, you can’t really read out of the statute an elemental requirement of proof of a court order, but whether the order was issued by a “competent” court is a definitional problem, one of law determined by the judge.
Interestingly, the court goes on to suggest that however defined, “court of competent jurisdiction … is a question of law, to be determined by a court,” ¶20, although any dispute of historical fact as to the issuing court’s jurisdiction would be for the jury to resolve, id. and fn. 10. The court, that is, ultimately adopts a fact-law-distinction analysis, without quite saying so explicitly.
Variation on this overall theme: Medley v. Runnels, 506 F. 3d 857 (9th Cir 2007). Medley’s offense involved discharge of a firearm; he used a flare gun; the trial court’s instruction the jury that a flare gun is a firearm unconstitutionally took from the jury determination of that element, entitling him to habeas relief. The habeas court rejected the state’s argument that “fiream” is a “legal term of art” and that the instruction merely provided a legal interpretation of the term (sound familiar?). The holding, however, is actually limited: the state could have defined firearm to include flare gun, in which case the instruction would have been proper; but it didn’t, and defining it thusly after the fact would be an unconstitutional expansion of the crime.
One final observation, utterly tangential. Suppose an element was omitted from the jury instructions. Current caselaw says that the omission is subject to harmless analysis, Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), but there’s reason to revisit that conclusion in light of Blakely, et al. – Freeze v. State, 827 NE 2d 600 (Ind. App. 2005):
We believe the validity of Neder might be short-lived, in light of the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence since 1999. Specifically, Justice Scalia wrote a vigorous dissent in Neder, joined in part by Justice Stevens and fully by Justices Ginsburg and Souter – in other words, four of the five members of the Blakely majority. Justice Thomas, the fifth Blakely justice, was in the Neder majority. After Neder, and beginning at least with Apprendi, he has repudiated a narrow interpretation of the Sixth Amendment jury trial right and has joined Justice Scalia’s broad view of it.