OWI specialists, pay attention to this case! It abolishes subject matter jurisdiction challenges to improperly-charged 1st offense OWIs. Everyone else, pay attention too. Justice Abrahamson’s 33-page dissent offers a comprehensive analysis of how the majority opinion (written by R.G. Bradley) fundamentally misunderstands circuit court competency and subject matter jurisdiction and broadly impacts public policy as well as civil and criminal litigation.
In 1990, Booth Britton was convicted of an OWI 1st in Minnesota. In 1992, the circuit court entered a civil forfeiture judgment against her for another OWI 1st. In 2014, she moved to reopen the 1992 civil forfeiture judgment, arguing that it was void for lack of subject matter jurisdiction because an OWI 2nd cannot be prosecuted as a civil ordinance violation in Wisconsin. See County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 683 (1982). The City argued that the charging error here affected the circuit court’s competency rather than its subject matter jurisdiction. See Village of Trempeleau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (per Article VII § 8 of the Wisconsin Constitution, circuit courts are “never without subject matter jurisdiction” over all civil and criminal matters)(emphasis supplied).
The majority “harmonizes” Rohner and Mikrut by determining that:
[M]ischarging an OWI affects competency, not subject matter jurisdiction . . . Although Rohner referred to a lack of subject matter jurisdiction due to noncompliance with state statutes, we clarified, in Mikrut, that noncompliance with statutory mandates affects only a court’s competency and will never affect its subject matter jurisdiction. As a result, 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. Accordingly, we withdraw any language from Rohner and any other case that suggests otherwise. Slip op. ¶14 (emphasis supplied).
If Mikrut was the “great clarifier,” then what is to be done with later cases holding that a circuit court lacks subject matter jurisdiction over offenses not known at law or actions based on facially unconstitutional statutes? ¶¶17-18. See State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699, N.W.2d 80. Easy. Rewrite them too:
We withdraw any language from Bush purporting to impair the ability of a court to exercise its subject matter jurisdiction over challenges to the constitutionality of a statute. ¶18.
In the end, the majority holds that the circuit court merely lacked competency to enter the 1992 civil judgment of conviction for an OWI 1st that should have been charged as an OWI 2nd. By failing to object in 1992, Booth Britton forfeited her right to challenge the circuit court’s competency to address the error. ¶26.
This means you can forget about §806.07 motions to reopen improperly-charged OWI convictions for lack of subject matter jurisdiction. This must be raised as a challenge to circuit court competency at the time the OWI is prosecuted. If it isn’t, the objection is forfeited. Too bad if the prior offense was unknown or if you were pro se and had never heard of “circuit court competency.”
Justice Abrahamson’s dissent acknowledges that the case law regarding subject matter jurisdiction versus competency is very messy and urges courts to proceed carefully on this issue. Holding that a circuit lacks subject matter jurisdiction means that its judgment is void and forever vulnerable to attack. Holding that it lacks competency places the finality of the judgment above its validity because and objection to competency can be forfeited. ¶¶30-31.
Abrahamson criticizes the majority for “granting circuit courts subject matter jurisdiction over any and all OWI-related conduct regardless of the text of the statutes,” when that’s the legislature’s prerogative. ¶63. And she asks what now prevents state or local governments from charging an OWI first when it should be charging a criminal OWI 2nd? ¶70.
She criticizes the majority for “harmonizing” the law by withdrawing language from Rohner, Bush and other cases that might stand in its way here. This amounts to overruling unidentified cases, which creates more confusion. ¶47 n.10.
And she impugns the majority for stressing Mikrut‘s erroneous statement that “a circuit court is never without subject matter jurisdiction.” “Repeating, and repeating, and repeating it does not make it correct.” “‘Never’ in Mikrut does not mean ‘never ever’.” ¶83. And she’s got a point. Like the Captain of the Pinafore, the majority perhaps meant “hardly ever” because there is a long list of cases finding a lack of circuit court subject matter jurisdiction over all sorts of criminal and civil matters–most notably when a statute is facially unconstitutional or when a criminal complaint alleges an offense unknown to law. ¶58 n.16. There’s also a long list of cases holding that the legislature may divest a circuit court of subject matter jurisdiction. ¶¶96-99.
The majority’s stress on “never” does make you wonder whether motions to dismiss for lack of subject matter jurisdiction remain viable in Wisconsin. Odds are this decision will generate more petitions for review than it expects to prevent.