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Pro se defendant wins motion to vacate revocation order

State v. Michael R. Hess, 2015AP2423, 7/20/16, District 2 (1-judge opinion; ineligible for publication) case activity

A decade after the circuit court entered a default judgment and revoked Hess’s license due to a drunk-driving event, he filed a motion to vacate per §806.07(1)(h). He claimed that he was not served with the notice of intent to revoke required by §343.05 and due process. On appeal Hess prevails in an opinion reaffirming that there is no deadline for filing a motion to vacate a void judgment.

The circuit court gave Hess a terse decision: “The Motion you filed is denied, not timely, and no basis to grant.” Slip op. ¶3. In reversing, the court of appeals first explained that:

[A] motion seeking relief from a void judgment may be brought at any time without regard to whether the moving party has been “dilatory or lackadaisical in his [or her] efforts to overturn the judgment.” ¶4 (quoting Neylan v. Vorwald, 124 Wis. 2d 85, 97, 100, 368 N.W.2d 648 (1985))(emphasis supplied).

The court’s reliance on Neylan is interesting. Just 10 days ago SCOW issued City of Eau Claire v. Booth, in which the majority criticized the defendant’s delay in challenging a void judgment, suggesting that it was an attempt to play “fast and loose” with the system. Booth, ¶25. Justice Abrahamson’s dissent objected to this characterization, see ¶43 n.8, and noted:

Although Wis. Stat. § 806.07(2) further requires that motions for relief from judgments be made “within a reasonable time,” the court has held that “[a] void judgment may be expunged by a court at any time.” See Wis. Stat. § 806.07(2); Neylan v. Vorwald, 124 Wis.2d 85, 97, 368 N.W.2d 648 (1985). If a judgment is void, it cannot acquire validity because of the lapse of time, and the judgment should be treated as legally ineffective in a subsequent proceeding. Neylan, 124 Wis.2d at 98100, 368 N.W.2d 648. Booth¶48.

Abrahamson’s dissent discusses this subject in depth and should be read by attorneys researching this issue. See our post on Booth here.

As for Hess’s motion to vacate, the court of appeals faulted the circuit court for not explaining its cryptic decision:

¶5 . . In light of Neylan and because we are unable to determine what the circuit court was relying upon in its determination that Hess’s motion was “not timely,” and that it had “no basis to grant,” we are reversing the court’s order denying Hess’s amended motion and remanding to the circuit court for further proceedings.

¶6  Hess claims he was never served with the notice of intent to revoke his operating privileges, and a material factual question appears to exist on this issue. If he is correct, the circuit court may have lacked personal jurisdiction, the 2003 judgment and related revocation order may be void, and he may be entitled to relief. See Moline, 170 Wis. 2d at 536-42. While Hess ultimately may or may not be able upon remand to meet his burden of proof for reopening this matter and vacating the default judgment and revocation order . . . we conclude the court erred in determining without a hearing that his amended motion was “not timely, and no basis to grant.”


{ 1 comment… add one }
  • Michael R Hess January 1, 2017, 1:09 am

    The Booth case cited above involves “subject matter” jurisdiction, not personal jurisdiction as in my case, a person has to be served, has nothing to do with subject matter.

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