Issue (copied from the petition for review):
Can a person be criminally responsible for acts he allegedly committed before the age of original juvenile court jurisdiction?
A jury convicted Sanders of enticement, incest, and child sexual assault of his sister. He argues that his trial counsel was ineffective for waiting until after the State rested its case to raise the question of whether the court had “subject matter jurisdiction” over conduct he allegedly engaged in at age 8 or 9.
As noted in our post on the court of appeals decision, this case really boils down to concerns raised in Judge Reilly’s concurrence. Criminal and juvenile jurisdiction is generally determined by a person’s age at the time he is charged, not at the time he committed the acts at issue. Reilly notes that the state may pull a “CHIPS category act” into a delinquency petition, so there is no logical legal reason why the state cannot pull a “CHIPS category” act into a criminal complaint. But he also had some reservations about this:
At some stage a child does not have the capacity to commit a crime, i.e., siblings, aged two and three, sharing a bath and playing “doctor” do not have the capacity to commit the crime of sexual assault of a child. The disturbed four year old who abuses animals and the five year old who likes to play with matches and burn things should be treated as children who need help rather than convicted and locked up as animal abusers or arsonists. The imprisonment of an adult for conduct the person engaged in when they were between the ages of one and nine years old strikes me as akin to punishing a puppy two days after the puppy had an accident in the house—the child/puppy has no idea why they were just struck and all they have learned is a fear of their master. Op. ¶45.
This case also highlights the continuing confusion over a circuit court’s “subject matter jurisdiction” versus its “competency to proceed.” The difference matters because a litigant may waive an objection to competency but not an objection to subject matter jurisdiction. In theory, SCOW’s decision in City of Eau Claire v. Booth, 2016 WI 65, ¶6, 370 Wis. 2d 595, 882 N.W.2d 738 cleaned up that mess by withdrawing or overruling all prior cases (known and unknown) that used those terms incorrectly. However, as Justice Abrahamson’s dissent in Booth predicted, this whole sale “overruling” was bound to create confusion. See our post here. Among other things, lots of cases discuss the legislature right to divest circuit courts of subject matter jurisdiction.