Disagreeing with the result reached in two recent unpublished decisions that addressed the same issue, a court of appeals judge holds that a circuit court had jurisdiction to convict Navrestad of OWI 1st in violation of a local ordinance even though he had a prior offense at the time of the conviction.
The two recent cases are City of Stevens Point v. Lowery, No. 2014AP742 (Wis. Ct. App. Feb. 5, 2015) (unpublished), and Clark County v. Potts, No. 2012AP2001 (Wis. Ct. App. March 28, 2013) (unpublished). Both held that a circuit court has no subject matter jurisdiction over a first OWI charged under an ordinance because the statutes governing OWI give the State exclusive authority over second and subsequent OWI offenses. Lowery, ¶¶7-9; Potts, ¶¶8-9. In reaching that conclusion both cases relied on County of Walworth v. Rohner, 108 Wis. 2d 713, 716, 718, 722, 324 N.W.2d 682 (1982).
But the judge in this case rejects the reasoning of Lowery and Potts, concluding instead that a subsequent case from the supreme court—Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190—conflicts with Rohner and, therefore, controls:
¶7 …. Although Mikrut had nothing to do with intoxicated driving offenses, the supreme court in Mikrut made a pronouncement that “a circuit court is never without subject matter jurisdiction.” Mikrut, 273 Wis. 2d 76, ¶1 (emphasis added). The Mikrut court concluded that, although a court’s “competency,” or power to exercise jurisdiction, can be limited by statute, subject matter jurisdiction cannot. Id., ¶2. The Mikrut court further concluded that objections to competency can be forfeited. See id., ¶3 & n.1.
¶8 It is true that Mikrut’s discussion of subject matter jurisdiction did not expressly overrule or even cite Rohner. However, as the circuit court here recognized, Mikrut’s pronouncement that a circuit court is “never without subject matter jurisdiction” is categorical and conflicts with the part of Rohner that matters here. Given this conflict, I am bound to follow the more recent supreme court pronouncement in Mikrut and conclude that Navrestad’s 1992 conviction presents no problem of subject matter jurisdiction. See Spacesaver Corp. v. DOR, 140 Wis. 2d 498, 502, 410 N.W.2d 646 (Ct. App. 1987) (“When the decisions of our supreme court appear to be inconsistent, we follow its most recent pronouncement.”).
Because Mikrut controls, Navrestad’s challenge to the OWI 1st conviction (which occurred in 1992) is an objection to the court’s competency to convict him, not to the court’s jurisdiction. Unlike an objection to jurisdiction, an objection to competency may be forfeited, and Navrestad failure to challenge the court’s competency back in 1992 means he’s forfeited the objection. (¶13).
When supreme court decisions appear to conflict, the court of appeals must harmonize them, if it can; if it can’t, then it follows the more recent decision. Doepke-Kline v. LIRC, 2005 WI App 209, ¶19, 287 Wis. 2d 337, 704 N.W.2d 605. The judge in Lowery concluded Rohner and Mikrut can coexist, first because “Mikrut made no reference to its earlier holding in Rohner in discussing the distinction between a court’s subject matter jurisdiction and competency,” and second because the cases are distinguishable: Mikrut involved the loss of competency during a validly commenced proceeding, while Rohner involved a proceeding that was invalid from its commencement. Lowery, ¶¶11, 12. The judge in this case disagrees: “The distinction that Lowery draws may suggest that Mikrut’s categorical pronouncement went beyond what was necessary. Nonetheless, I am bound by it.” (¶12).
The judge here also disagrees with Navrestad that a post-Mikrut decision, State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, modifies Mikrut or calls Mikrut into question. Bush held that a facial constitutional challenge to a statute “is a matter of subject matter jurisdiction and cannot be waived,” 283 Wis. 2d 90, ¶17. The judge here concludes that is “most reasonably read as carving out or reviving an exception to Mikrut in the context of facial constitutional challenges, not as a broader overruling of Mikrut,” as Bush “seemed to take a pass on that broader topic.” (¶10).
As the decision points out (¶12 n.3), the state’s petition in Lowery was recently denied, though of course that doesn’t mean the supreme court agrees with the reasoning of the court in Lowery. W.W.W. v. M.C.S., 156 Wis. 2d 446, 458, 456 N.W.2d 899 (Ct. App. 1990) (“A supreme court denial of a petition for review … carr[ies] no implication of approval or agreement.”), aff’d, 161 Wis. 2d 1015, 468 N.W.2d 719 (1991). Now that there are inconsistent court of appeals decisions, it is more likely the supreme court will take up the issue.
A final practice note: In addition to Lowery and Potts, Navrestad cited a third unpublished decision in support of his argument, La Crosse County v. Pettis, No. 2008AP2075 (Wis. Ct. App. April 9, 2009) (unpublished). As the court notes (¶3 n.2), Pettis shouldn’t have been cited because it was decided before July 1, 2009, the cut-off date in Rule 809.23(3)(a) and (b).