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Village of West Salem v. Low, 2009AP2654, Dist IV, 3/25/2010

court of appeal decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Challenge to OWI-1st in municipal court fails for want of jurisdiction, where judgment had been entered in circuit court because at the time no local municipal court existed.

An obscure problem, to be sure, but possibly of enough interest to be disseminated. Municipal courts have exclusive jurisdiction over municipal ordinance violations, subject to a few enumerated exceptions, § 755.045(1). But, where a municipal court hasn’t been established, jurisdiction over ordinance violations vests in circuit courts—or so the parties and the court of appeals seem to assume (see ¶5, suggesting that circuit court jurisdiction attached “under Chapter 778”; failure to cite a specific statute isn’t entirely helpful, but we’ll assume that everyone got this right, reserving the possibility that they’re mistaken). Sometime after judgment was entered against Low, a local municipal court was established, and that is where he raised his collateral attack, relying on the exclusive jurisdiction proviso of § 755.045(1). The court rejects the attempt, reasoning that “there is nothing in § 755.045(1) that suggests the legislature intended to divest the circuit court of jurisdiction over the actions properly filed in that court before the new municipal court was established,” ¶8. The larger lesson though, and the one to take away from the case is this: “It is well established that one court does not have the authority to re-open and set aside the judgment of another court. See, e.g., Salter v. Cook, 131 Wis. 20, 23, 110 N.W. 823 (1907); Coon v. Seymour, 71 Wis. 340, 346, 37 N.W. 243 (1888),” ¶8. Totally separate point: It bears remembering that you can collaterally attack the alleged enhancer within the ongoing prosecution, if but only if you can claim denial of counsel in the prior case, State v. Joseph J. Hammill, 2006 WI App 128, ¶¶15-17. And, because there is no right to counsel in an OWI-1st, you simply can’t launch such an attack, id. So Low did the only thing he could do, launch an independent collateral attack. It was reasonable for him to assume that the “exclusive jurisdiction” provision applied, but now he knows differently. And so do you.

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