≡ Menu

Waiver of Argument: Constitutionality of Statute – Facial Challenge

State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell

Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:

¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void. See Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965). Once again, the premise behind the rule is simple. Circuit courts have original jurisdiction over all matters civil and criminal, except as otherwise provided by law. If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.¶19 We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim. [8]

[8] Common law principles of waiver generally apply to Bush’s “as applied” constitutional challenge. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (noting that the waiver rule exists to promote efficiency and fairness); see also State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. Because Bush failed to raise this issue in his earlier appeals, and because we do not have all components of the record, we conclude that Bush has waived his as applied challenge. However, we decline to reach the question of whether a procedural bar, similar to one announced in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), applies.

The court of appeals applied a serial-litigation bar to Bush’s challenge and thus refused to reach the merits at all, 2004 WI App 193, ¶¶13-19, hence it’s fair to characterize the supreme court result as “overruling in part” the court of appeals’ holding. Yet, the supreme court explicitly leaves open the possibility of such a bar, in the footnote reproduced above. Presumably, such a bar is limited to as-applied challenges, given that the court proceeds to reach the merits of the facial challenge.

Also see, State v. Scott R. Nelson, 2007 WI App 2, ¶7 n. 3:

Because Nelson is making facial challenges to the constitutionality of chapter 980, the State’s assertion that Nelson has waived his constitutional arguments lacks merit. See State v. Bush, 2005 WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 (“[B]ecause Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court [and] … cannot be waived ….”), cert. denied, 126 S. Ct. 631 (2005).


{ 0 comments… add one }

Leave a Comment