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SCOW to address municipal court’s subject matter jurisdiction over criminal OWI

City of Cedarburg v. Ries B. Hansen, 2018AP1129, petition for bypass granted 2/12/19; case activity (including briefs)

Issue (from petition for bypass):

City of Eau Claire v. Booth, 2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738 held that when a circuit court handles a 1st offense OWI that is mischarged due to an unknown prior offense, it is a defect in the circuit court’s competency but not the circuit court’s subject matter jurisdiction. Accordingly, a defendant must timely object to the circuit court’s lack of competency or the objection is forfeited. Is the same true when the mischarged OWI is in municipal court?

In 2016, Hansen was charged with an OWI 3rd. He moved a municipal court to vacate as void his 2005 OWI 1st conviction on the grounds that it lacked subject matter jurisdiction because the OWI 1st should have been charged as an OWI 2nd, which is a criminal offense. This would reduce his OWI 3rd to an OWI 2nd.

You might be wondering “why doesn’t Booth automatically apply to municipal courts?” The answer is that the Wisconsin Constitution grants circuit courts subject matter jurisdiction over “all matters civil and criminal.” Wis. Const. art. VII §8.  But it grants municipal courts limited subject matter jurisdiction. They may only address “actions and proceedings arising under the ordinances of the municipality.”  Wis. Const. art. VII §14. Here the municipal court had no subject matter jurisdiction over an OWI 1st that should have been charged as an OWI 2nd.  Without subject matter jurisdiction the municipal court could not act.

Justice Abrahamson’s dissent in Booth warned that problems would follow from the majority’s sweeping statement that it was withdrawing any language from County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982) “and any other cases” suggesting that noncompliance with a statutory mandate affects subject matter jurisdiction rather than competency to proceed. Booth, ¶¶14-15 and the dissent ¶46 n.10. Also see our post here.  It seems she was right. Apparently the only Wisconsin case to address a municipal court’s authority to act in a situation like this one is City of Kenosha v. Jensen, 184 Wis. 2d 91, 516 N.W.2d 4 (Ct. App. 1994), which relied solely on Rohner to hold that the municipal court lacked subject matter jurisdiction. Booth withdrew that part of Rohner, but Jensen appears to have been correct. Clear as mud? If you are working in this area of law, you might want to skim the parties’ briefs which you will find here.


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