City of Cedarburg v. Ries B. Hansen ( 2020 )

2020 WI 11
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1129
COMPLETE TITLE: City of Cedarburg,
Plaintiff-Appellant,
v.
Ries B. Hansen,
Defendant-Respondent.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: February 11, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Paul V. Malloy
JUSTICES:
ROGGENSACK, C.J., delivered the majority opinion of the Court, in
which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined.
KELLY, J., filed a concurring opinion, in which REBECCA GRASSL
BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion,
in which ANN WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellants, there were briefs (in the court
of appeal) filed by Jonathan G. Woodward and Houseman & Feind,
LLP, Grafton. There was an oral argument by Jonathan G. Woodward.
For the defendant-respondent, there was a brief (in the court
of appeals) filed by Andrew Mishlove and Mishlove & Stuckert, LLC,
Glendale. There was an oral argument by Andrew Mishlove.
2020 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1129
(L.C. No. 2017CV411)
STATE OF WISCONSIN : IN SUPREME COURT
City of Cedarburg,
Plaintiff-Appellant, FILED
v. FEB 11, 2020
Ries B. Hansen, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
ROGGENSACK, C.J., delivered the majority opinion of the Court, in
which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined.
KELLY, J., filed a concurring opinion, in which REBECCA GRASSL
BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion, in
which ANN WALSH BRADLEY and DALLET, JJ., joined.
APPEAL from an order of the Circuit Court of Ozaukee County.
Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case comes before
us on bypass, pursuant to Wis. Stat. § 809.60 (2017–18),1 from the
circuit court for Ozaukee County.2
1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2 The Honorable Paul V. Malloy of Ozaukee County presided.
No. 2018AP1129
¶2 In 2005, Ries B. Hansen was convicted by the Mid-Moraine
Municipal Court of Operating While Intoxicated (OWI) in violation
of a City of Cedarburg ordinance, based upon Hansen's guilty plea
to the alleged violation.3 In 2016, when he was again charged with
OWI, Hansen collaterally attacked his 2005 conviction by proving
that he had a 2003 OWI conviction in Florida. He contended that
his 2005 OWI was factually a second offense and therefore, outside
of the municipal court's limited subject matter jurisdiction. The
circuit court agreed and vacated Hansen's 2005 conviction.
¶3 We conclude that the 2005 municipal citations invoked
the municipal court's subject matter jurisdiction, which was
granted by Article VII, Section 14 of the Wisconsin Constitution.
Therefore, the municipal court had power to adjudicate the
allegation that Hansen operated a motor vehicle while intoxicated
in violation of a municipal ordinance. And further, even if we
were to agree with Hansen that Wisconsin's statutory progressive
OWI penalties were not followed in 2005, the municipal court would
have lacked competence not subject matter jurisdiction. City of
Eau Claire v. Booth, 2016 WI 65, ¶14, 370 Wis. 2d 595, 882
N.W.2d 738.
¶4 And finally, an objection to a court's competence may be
forfeited if it is not raised in a timely manner. Id., ¶1. Hansen
was silent about his 2003 Florida OWI conviction until he was again
arrested for OWI in 2016. We conclude that, by his 11 years of
3The Mid-Moraine Municipal Court serves multiple
municipalities in Washington County and Ozaukee County.
2
No. 2018AP1129
silence, Hansen has forfeited any competence objection that could
exist. Accordingly, his 2005 and 2003 convictions were countable
offenses in 2016 for purposes of Wisconsin's statutory progressive
penalty requirements, and we reverse the order of the circuit
court.
I. BACKGROUND
¶5 This case is grounded in three OWI convictions and their
effects on each other due to Wisconsin's statutory progressive
penalty requirements for OWI-related events. In 2005, Hansen was
arrested in Wisconsin for OWI.4 The arresting officer who issued
the civil citations, the municipal court, and the municipal
attorney who prosecuted the 2005 offense did not know that Hansen
had a 2003 OWI conviction in Florida.
¶6 Therefore, Hansen was charged with violating a Cedarburg
ordinance, and he was prosecuted as an OWI first-offender. Hansen
alleges, in a footnote in his brief, that the Ozaukee County
District Attorney knew of the Florida OWI and "declined to
prosecute that matter as a criminal offense due to a lack of
clarity in the records."5 However, he admits he is "unable to
confirm whether that occurred."6 Cedarburg asserts that the
Florida OWI was unknown. It points to Hansen's Wisconsin driving
4He was arrested for operating a vehicle with both a
prohibited alcohol concentration (PAC) and while intoxicated.
Based on his plea, the municipal court convicted him of OWI and
the PAC charge was dismissed.
5 Resp't br. at 1 n.2.
6 Id.
3
No. 2018AP1129
record dated May 22, 2005 that was submitted by affidavit and does
not show a prior OWI offense.7
¶7 However, as Hansen's 2016 collateral attack shows, he
knew of his Florida OWI conviction, but he did not disclose it in
2005. Instead, by written stipulation signed by his attorney, he
pled guilty to a municipal OWI citation and the PAC citation was
dismissed.
¶8 In 2016, when Hansen again was arrested for OWI, he was
charged under state statute as OWI-third because the arresting
officer had knowledge of the 2005 OWI conviction, as well as the
Florida conviction. Hansen collaterally attacked the validity of
the 2005 municipal court conviction. He asserted that the
municipal court did not have jurisdiction to prosecute him in 2005
because that OWI was factually a second offense, which is a
criminal offense, for which municipal courts have no jurisdiction.
He contended that his 2016 OWI violation could be counted only as
a first-offense OWI because the 2005 conviction was void due to
lack of municipal court jurisdiction and his 2003 Florida OWI
occurred more than 10 years before his 2016 Wisconsin OWI.
¶9 In his collateral attack, Hansen moved the circuit court
to vacate his 2005 conviction. The circuit court granted the
motion. The court concluded that the municipal court did not have
subject matter jurisdiction to adjudicate the 2005 OWI offense
because factually it was a second offense, and therefore, a
criminal offense outside of the municipal court's jurisdiction.
7 Exhibit E, R: 9-7.
4
No. 2018AP1129
¶10 Hansen also moved the municipal court to vacate its
judgment of conviction for the 2005 OWI.8 The municipal court
denied Hansen's motion. It reasoned that an error in charging
affected the municipal court's competence but not its
jurisdiction. Hansen sought review of the municipal court's
decision in the Ozaukee County Circuit Court. The circuit court
reversed the municipal court, for a second time concluding that
the 2005 judgment was void for lack of municipal court subject
matter jurisdiction.
¶11 We granted bypass to determine whether Hansen's
undisclosed 2003 Florida OWI conviction negated the municipal
court's jurisdiction or impacted only its competence in 2005. We
conclude that any error that occurred affected only the municipal
court's competence. Accordingly, we reverse the circuit court.
II. DISCUSSION
A. Standard of Review
¶12 We independently interpret and apply Wisconsin statutes
under known facts as questions of law. Daniel v. Armslist, LLC,
2019 WI 47, ¶13, 386 Wis. 2d 449, 926 N.W.2d 710.
¶13 Similarly, "We independently review questions of subject
matter jurisdiction and competenc[e]." Booth, 370 Wis. 2d 595, ¶6
(citing Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273
Wis. 2d 76, 681 N.W.2d 190). Lastly, we independently review
whether a party has forfeited his or her right to challenge a
8 The Honorable Steven M. Cain of Ozaukee County presided.
5
No. 2018AP1129
court's competence. See Booth, 370 Wis. 2d 595, ¶6 (citing Mikrut,
273 Wis. 2d 76, ¶7).
B. Statutory Progressive Penalties
1. Overview
¶14 This case involves the legal issue of whether the
municipal court's lack of knowledge of Hansen's 2003 Florida
conviction affected its subject matter jurisdiction or only its
competence in 2005. Wisconsin's OWI penalties escalate with each
countable offense both in regard to the nature of the conviction
and in regard to the monetary and confinement consequences. As a
beginning, a first offense is a civil forfeiture.9 Wis. Stat.
§ 346.65(2)(am). Second and third offenses are misdemeanors.
§ 346.65(2)(am)2. & 3. A fourth offense is a Class H Felony.
§ 346.65(2)(am)4. The penalty continues to escalate until a tenth
offense, which is a Class E Felony. § 346.65(2)(am)7.
¶15 Under Wisconsin's progressive penalties for OWI-related
offenses, a countable offense does not have to be an OWI
conviction. Wisconsin Stat. § 343.307(1) lists a variety of
offenses, some of which do not arise from OWI convictions. For
example, revocation for improper refusal to take a chemical test
that law enforcement has requested counts the same as an OWI
9 Wisconsin is the only state where the penalty for a first-
offense OWI is a civil forfeiture. Todd Richmond, Criminalizing
1st-time DUIs Is a Tough Sell in Wisconsin, Chi. Tribune (Jan. 13,
2019), https://www.chicagotribune.com/nation-world/ct-wisconsin-
criminal-dui-20190113-story.html; Andrew Mishlove & Lauren
Stuckert, Wisconsin's New OWI Law, Wis. Lawyer, June 2010,
https://www.wisbar.org/NewsPublications/WisconsinLawyer/
Pages/Article.aspx?Volume=83&Issue=6&ArticleID=2045.
6
No. 2018AP1129
conviction for purposes of increasing statutory penalties. Wis.
Stat. § 343.307(1)(f); Wis. Stat. § 343.305(10).
¶16 Furthermore, the prohibited conduct need not occur in
Wisconsin. Out-of-state OWI-related events count as
"[c]onvictions under the law of another jurisdiction that
prohibits a person from refusing chemical testing." Wis. Stat.
§ 343.307(1)(d). A court also counts administrative "[o]perating
privilege suspensions or revocations under the law of another
jurisdiction arising out of a refusal to submit to chemical
testing." § 343.307(1)(e).
¶17 Prosecutors and courts cannot knowingly disregard
countable offenses. County of Walworth v. Rohner, 108 Wis. 2d 713,
721, 324 N.W.2d 682 (1982). For example, a prosecutor has no
discretion to prosecute a second-offense OWI, which he knows is a
second offense, as a first offense. Id. at 718. Wisconsin's
progressive OWI penalties are mandatory directives from the
legislature "to encourage the vigorous prosecution of offenses
concerning the operation of motor vehicles by persons under the
influence . . . ." Wis. Stat. § 967.055(1)(a).
¶18 Initially, municipal courts were not involved in
prosecuting OWI-related events. However, in 1957, the Wisconsin
legislature authorized municipalities to adopt such traffic
regulations, as long as the regulations were in "strict conformity
with the state statute." Id. at 719. The legislation required
that the municipality's penalty was a civil forfeiture. Id.
Problematically, at the time, violation of a state OWI traffic
regulation was a crime. Id. Giving local governments the power
7
No. 2018AP1129
to enact non-criminal versions of state traffic regulations led to
inequality. Id. That is, under those provisions, a person whose
OWI violation was adjudicated by a municipal court would face a
civil penalty, whereas another person who engaged in the same
conduct would face a criminal penalty in circuit court. Id.
¶19 In 1971, the legislature tried to remedy that
inequality. Id. (citing § 66, ch. 278, Laws of 1971). First, it
decriminalized violations of several state traffic regulations,
including first-offense OWI. Id. at 720. Second, the law
"provided a uniform statewide procedure governing prosecutions
under both state statutes and conforming local regulations." Id.
2. Wisconsin Stat. § 343.307
¶20 Progressive penalties for OWI violations are set out in
Wis. Stat. § 346.6510 based on the application of Wis. Stat.
§ 343.307 to OWI-related events. Interpretation of § 343.307
underlies the specific competence question presented in this case,
but neither party directly engages in statutory interpretation
because each simply assumes a somewhat different interpretation
and then argues from that interpretation.
¶21 Wisconsin Stat. § 343.307 provides in relevant part:
10Relevant to our discussion here, the minimum punishment for
a first offense OWI is a $150 forfeiture, Wis. Stat.
§ 346.65(2)(am)1., while the minimum punishment for a third
offense OWI is a $600 fine and 45 days in county jail.
§ 346.65(2)(am)3. The maximum punishment for a first offense OWI
is a $300 forfeiture, while the maximum punishment for a third
offense is a $2,000 fine and one year in county jail.
§ 346.65(2)(am)1. & 3.
8
No. 2018AP1129
(1) The court shall count the following to determine the
length of a revocation under s. 343.30(1q)(b) and to
determine the penalty under ss. 114.09(2) and 346.65(2):
(a) Convictions for violations under s. 346.63(1),
or a local ordinance in conformity with that section.
. . . .
(d) Convictions under the law of another
jurisdiction that prohibits . . . using a motor vehicle
while intoxicated . . . .
¶22 Statutory interpretation begins with the language chosen
by the legislature. If the meaning is plain, we ordinarily stop
the inquiry. Sorenson v. Batchelder, 2016 WI 34, ¶11, 368 Wis. 2d
140, 885 N.W.2d 362 (citing Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 119). Plain meaning
is assisted by the context in which the words are used.
Batchelder, 368 Wis. 2d 140, ¶11. We also interpret the statutory
language reasonably "to avoid absurd or unreasonable results."
Id.
¶23 Wisconsin Stat. § 343.307 plainly requires a court to
"count" prior convictions. The statute employs mandatory terms,
"shall count." The court is to do so in order "to determine" the
length of revocation and other penalties that arise from OWI
convictions. There is nothing in the plain wording of § 343.307
that even implies that a court is precluded from counting an OWI
conviction to determine the length of revocation or other penalty.
¶24 However, Hansen contends that he has no OWI convictions
that can be counted when his 2016 OWI violation is adjudicated.
He argues that because the municipal court did not count his 2003
Florida conviction in 2005, the court adjudicated a matter for
9
No. 2018AP1129
which it had no subject matter jurisdiction. This lack of
jurisdiction, he argues, voids his 2005 conviction and causes his
2003 Florida conviction to occur more than 10 years before his
2016 violation, thereby preventing his 2003 Florida conviction
from having an effect on the penalty for his 2016 violation.
¶25 Hansen's argument fails because the municipal court had
subject matter jurisdiction in 2005, as we explain directly below.
Therefore, his 2005 conviction stands and it, together with his
2003 Florida conviction, must be counted in 2016 under the plain
terms of Wis. Stat. § 343.307. Furthermore, although Hansen's
silence gave him a lesser penalty in 2005, the progressive
penalties set out in Wis. Stat. § 346.65 were honored when Hansen
was charged in 2016 with OWI-third pursuant to § 343.307. Hansen's
silence in 2005 had an effect only on the municipal court's
competence in 2005. As we said in Mikrut, and explain more fully
below, a loss of competence "can be triggered by a variety of
defects in statutory procedure." Mikrut, 273 Wis. 2d 76, ¶12.
C. Invoking Municipal Court Jurisdiction
¶26 Article VII, Section 14 of the Wisconsin Constitution
provides, "All municipal courts shall have uniform jurisdiction
limited to actions and proceedings arising under ordinances of the
municipality." Wis. Const. art. VII, § 14. Accordingly, the
constitution confers jurisdiction on municipal courts to
adjudicate alleged ordinance violations. Wisconsin Stat.
§ 755.045(1) further provides that municipal courts have
"exclusive jurisdiction" to enforce their ordinances. Because it
is foundational to jurisdiction of municipal courts, we interpret
10
No. 2018AP1129
the phrase "actions and proceedings arising under ordinances of
the municipality" in Article VII, Section 14.
¶27 It is undisputed that at the time the proceeding in
municipal court commenced, it was based on an alleged ordinance
violation. Stated otherwise, in 2005, the proceeding was commenced
by Hansen's civil traffic citations, which are the pleadings that
alleged that the OWI and PAC violations arose under an ordinance.
¶28 The means by which an action or proceeding arises is
central to our discussion. In another context, we have described
the phrase, "arising under," as conferring jurisdiction at the
time that "the plaintiff is able, from the nature of his case, to
set up in his declaration or complaint, some right or equity
against the defendant, arising under the constitution, laws or
treaties of the United States." Ableman v. Booth, 11 Wis. 517
(*498), 531-32 (*512) (1859). We further explained, "the facts
conferring jurisdiction, would, by the plaintiff's showing, appear
affirmatively upon the record, and the court might entertain the
case." Id. at 532. As Ableman shows, we concluded that "arising
under" was tied to the facts that the pleading alleged.11
¶29 Confining ourselves to the four corners of the municipal
citations that commenced the municipal court proceeding, Hansen
was charged with two violations of a municipal ordinance that was
11Ableman was a one justice opinion. In 1859, the Wisconsin
Supreme Court had only three justices. One justice recused and
another dissented without filing an opinion. We note that the
disagreement between the two justices was not with the portion of
Ableman on which we rely.
11
No. 2018AP1129
in conformity with statutory provisions.12 Hansen contends that
subject matter jurisdiction in municipal court is defeated by his
2003 Florida conviction. Whether the alleged OWI violation was,
or was not, preceded by a prior offense is not an element of an
OWI ordinance violation, nor is it an element of an OWI criminal
violation. State v. McAllister, 107 Wis. 2d 532, 538, 319
N.W.2d 865 (1982) ("[W]e hold that the fact of a prior violation,
civil or criminal, is not an element of the crime of [OWI] either
in the ordinary sense of the meaning of the word element, i.e.,
the incidents of conduct giving rise to the prosecution, or in the
constitutional sense.").
¶30 A defendant's prior convictions determine his status as
a repeat offender, not his guilt. State v. Saunders, 2002 WI 107,
¶3, 255 Wis. 2d 589, 649 N.W.2d 263. However, the State must prove
a defendant's status as a prior offender at sentencing, where prior
convictions must be established beyond a reasonable doubt.13 Id.
12Wisconsin Stat. § 349.06(1)(a) states, in relevant part,
that "any local authority may enact and enforce any traffic
regulation which is in strict conformity with one or more
provisions of chs. 341 to 348 and 350 for which the penalty for
violation thereof is a forfeiture." Citations E626967-4 and -5
allege that Hansen twice violated Cedarburg ordinance 10-1-1a (in
strict conformity with Wis. Stat. § 346.63(1)(a)) for operating
while intoxicated and (in strict conformity with § 346.63(1)(b))
because of a "prohibited B.A.C. (breath)."
13 In a criminal OWI prosecution, the jury never hears about
the number of prior offenses. Wis. JI——Criminal 2663 (2006). This
does not pose constitutional problems because prior convictions
are not facts that must be submitted to the jury. Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."). Indeed, in practice,
12
No. 2018AP1129
Importantly, the city attorney is not required to allege or prove
that the defendant had no prior offenses.
¶31 We also have said that "arising under" jurisdiction is
incredibly broad. Beck v. State, 196 Wis. 242, 244, 219 N.W. 197,
199 (1928) (explaining that a court has "jurisdiction to hear and
determine all questions arising under the provisions of the
inheritance tax laws"). We said, "[i]t is difficult to see how a
broader jurisdiction could be conferred upon any court upon a given
subject." Id. at 247. We then quoted the United States Supreme
Court describing jurisdiction as the "power to entertain the suit,
consider the merits and render a binding decision thereon; and by
merits we mean the various elements which enter into or qualify
the plaintiff's right to the relief sought." Id. (quoting General
Inv. Co. v. N.Y. Cent. R.R. Co., 271 U.S. 228 (1926)).
¶32 We conclude that the municipal court did not entertain
a suit for a second-offense OWI because there was no allegation of
a prior offense in the charging documents.14 Therefore, he was
defendants are often the ones asking that prior convictions not be
introduced into evidence. The fear is that the jury will treat
the prior convictions as establishing a propensity for the conduct
in question. "The policy of the law recognizes the difficulty of
containing the effects of such information which, once dropped
like poison in the juror's ear, 'swift as quicksilver it courses
through the natural gates and alleys of the body.'" R. v. Handy,
[2002] 2 S.C. 908, ¶40 (Can.) (quoting Hamlet, Act I, Scene v,
11).
14We also note that according to Hansen's argument, neither
a defendant nor defense counsel has any requirement to inform a
court about prior offenses. Indeed, a defense attorney may have
an ethical obligation to safeguard information about prior
convictions. Revised Wis. Ethics Op. E-86-06 (Dec. 29, 2018) at
4 n.9 ("Counsel's knowledge of the client's prior conviction is
13
No. 2018AP1129
prosecuted for ordinance violations shown on the civil citations
he was issued.
¶33 The history of the 1977 constitutional amendment that
created Article VII, Section 14 of the Wisconsin Constitution is
instructive. The amendment process started with the passage of
1975 Joint Resolution 13. A summary and analysis of the resolution
explained:
The proposed amendment would limit the jurisdiction of
municipal courts to actions and proceedings arising
under the ordinances of the municipality in which
established. Presently, municipal courts could
constitutionally be given jurisdiction equal to that of
circuit courts, although municipal courts are
statutorily restricted to hearing cases involving
ordinance violations.
Jim Fullin, Summary and Analysis of 1975 Enrolled Joint Resolution
13 Relating to the State Court System 4 (1976) (on file at the
David T. Prosser, Jr. Wisconsin State Law Library). The reference
to "hearing cases involving ordinance violations" is telling. A
municipal court is hearing such a case when that is what has been
alleged in a charging document, such as a civil citation for OWI.
information that relates to the representation and is protected by
SCR 20:1.6(a)."). The Ethics Opinion does, however, explain that
a defense lawyer "has a duty not to provide false information to
the court" and discusses counsel's obligations under SCR
20:3.3(a)(1) when the "court directly asks counsel or the defendant
about the prior record." In those situations, "counsel may not
knowingly report an incorrect number of prior OWI convictions."
Invoking subject matter jurisdiction should not depend on facts
that no party has an obligation to bring to the court's attention.
14
No. 2018AP1129
¶34 In 1973, a similar attempt had been made at reforming
municipal courts. The proposal was summarized by a Report from
the Wisconsin Legislative Council:
In present section 2, the Legislature is authorized to
create municipal courts with trial powers in their
municipalities equal to that of the circuit courts.
Assembly Joint Resolution 5 provides that the
Legislature may provide for municipal courts, but under
amended section 14, the trial jurisdiction of these
courts as provided by law may not be greater than the
trial of ordinance violations, state traffic offenses
and forfeiture actions.
Wis. Legislative Council, Report to the 1973 Legislature on Court
Reorganization 10–11 (Mar. 1973) (on file at the David T. Prosser,
Jr. Wisconsin State Law Library).
¶35 Of particular importance is the report's reference to
"trial of ordinance violations." A trial, by definition, is a
fact-finding mission to determine the truth of allegations in a
pleading. Trial, Black's Law Dictionary (11th ed. 2019) (defining
a trial as "[a] formal judicial examination of evidence and
determination of legal claims in an adversary proceeding"). It
should go without saying that a municipal court trial can occur
only after jurisdiction arises under Article VII, Section 14.
¶36 Federal case law has persuasive value in defining
"arising under" because both the United States Constitution and
federal statutes use the phrase, "arising under."15 At oral
15U.S. Const. art. III, § 2 ("The judicial power shall extend
to all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall
be made, under their Authority . . . ."); 28 U.S.C. § 1331 ("The
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
15
No. 2018AP1129
argument, Hansen argued by analogizing to federal case law on
jurisdictional facts. Specifically, Hansen referred us to the
United States Supreme Court's decision in Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006), which we conclude supports our conclusion
that municipal court subject matter jurisdiction is invoked by the
pleadings.
¶37 Arbaugh concluded that "[a] plaintiff properly invokes
§ 1331 [federal question] jurisdiction . . . when she pleads a
colorable claim 'arising under' the Constitution or laws of the
United States." Id. at 513 (citing Bell v. Hood, 327 U.S. 678,
681–85 (1946)). Arbaugh explained that there is a difference
between invoking and establishing jurisdiction: the United States
Constitution establishes jurisdiction when a plaintiff's case
arises under a federal law and the plaintiff invokes that
jurisdiction. Arbaugh, 546 U.S. at 513. Congress can make certain
facts a prerequisite to a claim arising under federal law, e.g.,
the amount-in-controversy threshold in diversity actions.16 Id.
at 515–16 (citing 28 U.S.C. § 1332). These facts are distinguished
from facts going to the merits of the case. Id. at 513–14.
United States.").
16The United States Supreme Court concluded that Congress
must use clear language to create a prerequisite fact necessary to
jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006)
(internal citations removed) (modifications in the original)
("Given the 'unfair[ness]' and 'waste of judicial resources'
entailed in tying the employee-numerosity requirement to subject-
matter jurisdiction, we think it the sounder course to refrain
from constricting [U.S.C.] § 1331 or Title VII's jurisdictional
provision, 42 U.S.C. § 2000e-5(f)(3), and to leave the ball in
Congress' court.").
16
No. 2018AP1129
¶38 However, even when Congress creates a prerequisite
jurisdictional fact, it does not necessarily follow that the fact's
non-existence when the merits of the action are tried negates
subject matter jurisdiction that has been invoked by the
allegations in the pleadings. Diversity jurisdiction is an
example. Currently, the amount-in-controversy must be greater
than $75,000. 28 U.S.C. § 1332(a). If a plaintiff invokes
diversity jurisdiction, the defendant can contest the amount-in-
controversy with the possibility of proving subject matter
jurisdiction is not established. However:
[I]f the defendant does not lodge a challenge, the
plaintiff's good-faith allegation controls, even if the
amount in controversy does not, in fact, exceed the
jurisdictional threshold. The parties' pleading choices
can thus establish jurisdiction even when the amount in
controversy is, in fact, below the threshold.
Scott Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619, 631
(2017). It is not as if, should the jury return a verdict for
less than $75,000, the lack of finding for the jurisdictional
amount negates the federal court's jurisdiction. Federal court
jurisdiction does not turn on facts unknown at the start of the
proceeding, but rather, jurisdiction is invoked by unchallenged
pleadings.17
17Federal courts allow subject matter jurisdiction to be
raised for the first time on appeal. Arbaugh, 546 U.S. at 514
(quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
However, as already explained, an unchallenged good-faith
allegation can be sufficient to invoke jurisdiction. And once
jurisdiction is invoked and the time of direct appeal has passed,
the defendant has no valid objection.
17
No. 2018AP1129
¶39 Other federal cases also have concluded that "arising
under" jurisdiction is invoked by the pleadings. In Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908), the United
States Supreme Court explained, "It is the settled
interpretation . . . that a suit arises under the Constitution and
laws of the United States only when the plaintiff's statement of
his own cause of action shows that it is based upon those laws or
that Constitution."18 Id. at 152 (emphasis added); see also Johnson
v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (quoting
Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir. 1998)
(modifications in original) ("If Johnson presents 'a non-frivolous
claim under federal law; no more is necessary for subject-matter
jurisdiction. A plaintiff's inability to demonstrate that the
defendant [is an "employer"] is just like any other failure to
meet a statutory requirement. There is a gulf between defeat on
the merits and a lack of jurisdiction.'")); Kulick v. Pocono Downs
Racing Ass'n, Inc., 816 F.2d 895, 897–98 (3d Cir. 1987) ("Under
either section [of federal law], a court has jurisdiction over the
dispute . . . . Once the plaintiff has met [a] threshold pleading
18 We have discussed federal case law in this opinion for the
sole purpose of interpreting the phrase, "arising under." We note
that federal law has permitted jurisdictional challenges on
appeal; however, generally, it does not permit collateral attacks
on subject matter jurisdiction. See Chicot Cty. Drainage Dist. v.
Baxter State Bank, 308 U.S. 371, 375–78 (1940); see also Michael
J. Edney, Comment, Preclusive Abstention: Issue Preclusion and
Jurisdictional Dismissals after Ruhrgas, 68 U. Chi. L. Rev. 193,
196–97 (2001) ("If the rendering court never addressed the question
of subject matter jurisdiction, and vertical appeals have been
exhausted, then any objection to subject matter jurisdiction has
been waived.").
18
No. 2018AP1129
requirement, however, the truth of the facts alleged in the
complaint is a question on the merits, as is the legal question
whether the facts alleged establish a violation.").
¶40 Legal scholars have described "arising under"
jurisdiction similarly. As one wrote:
[T]he "arising under" (or "brought under" or "commenced
to redress a deprivation of") jurisdictional grants do
not ask historical factual questions. They ask only for
a prediction from the court: Does it appear (based
solely on the pleadings) that the plaintiff seeks relief
created or made possible by a federal enactment?
Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev.
643, 701 (2005). The same scholar has also stated, "[a] court
measuring its subject mat[t]er jurisdiction cannot look anywhere
other than the affirmative claims properly stated in the
complaint." Howard M. Wasserman, Jurisdiction, Merits, and
Substantiality, 42 Tulsa L. Rev. 579, 590 (2007); see also Brianna
J. Fuller, Developments in the Law, III. Federal Question
Jurisdiction, 37 Loy. L.A. L. Rev. 1443, 1474 (2004) (citing The
Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913))
(modifications in original) ("If done by the book, the court should
look at the allegations in the complaint to see if they would raise
a substantial federal question as alleged. This should be made
independently of 'whether the claim ultimately [would] be held
good or bad.'").
¶41 We conclude that Cedarburg invoked municipal court
subject matter jurisdiction conferred by Article VII, Section 14
of the Wisconsin Constitution by the pleadings (civil traffic
citations) that alleged violations that arose under municipal
19
No. 2018AP1129
ordinances. Stated otherwise, the proceedings on the traffic
citations were grounded in allegations that Hansen operated a
vehicle while intoxicated in violation of municipal ordinance.
¶42 We discussed the impact of municipal and state OWI
charges on circuit court subject matter jurisdiction in Rohner.
Rohner, 108 Wis. 2d 713. Paul Rohner was first convicted for OWI
in 1979. Id. at 715. In 1980, he was cited for OWI under a county
ordinance. Id. The case proceeded in circuit court, but pursuant
to an alleged violation of a county ordinance. Id. When it went
to trial, Rohner moved to dismiss the proceedings on the ground
that the court lacked subject matter jurisdiction to adjudicate an
ordinance violation. Id. The circuit court recognized that Rohner
had a prior OWI conviction, but concluded that, nonetheless, it
had jurisdiction to proceed on the 1980 OWI ordinance violation.
Id.
¶43 We disagreed. Id. at 720–21. We explained "that the
[S]tate has the exclusive authority to prosecute second offenses
for drunk driving" under State statutes, so Rohner could not be
convicted of violation of a county ordinance. Id. at 722. "The
legislative goal of providing uniform traffic enforcement would be
subverted if local governments were allowed to punish second
offenders with first offense penalties." Id. at 720. We held
that a county ordinance "can have no application to a second or
subsequent offense." Id. at 722.
¶44 Over time, our holding in Rohner was understood as
imposing a duty on city attorneys and prosecutors who had knowledge
of a prior OWI conviction to correctly charge subsequent OWIs. In
20
No. 2018AP1129
one such case, Albert R. Jensen was undercharged with a first-
offense OWI in municipal court. City of Kenosha v. Jensen, 184
Wis. 2d 91, 93, 516 N.W.2d 4 (Ct. App. 1994). Jensen pled no
contest, and the municipality was unaware of Jensen's prior
offense. Id. Subsequently, the City realized it had made a
charging error, and it asked the municipal court to vacate the
judgment and dismiss the municipal citation without prejudice.
Id. at 93-94. The municipal court did so, permitting the State to
proceed criminally against Jensen for his second OWI. Jensen
objected, saying the municipal court lacked the ability to do so.
Id. at 94. The court of appeals agreed with the City of Kenosha
and held that the municipal court had the inherent authority to
vacate its judgment. Id. at 98. However, the court of appeals
also opined:
We are not holding that in every OWI-BAC case where the
municipal attorney finds out that an offense is actually
a second or subsequent offense within five years, the
municipal attorney must seek vacation of the municipal
judgment before criminal proceedings can ensue. Quite
the contrary, the State may proceed regardless of
whether the municipal attorney or the municipal court
first acts. As the State points out in its amicus curiae
brief, a municipal court does not have subject matter
jurisdiction to try and convict a criminal operating
while intoxicated. Any such municipal action is null
and void [under Rohner].
Id. at 98-99.
¶45 Notably, "[a]t the time we decided Rohner, our case law
did not clearly distinguish between the concepts of subject matter
jurisdiction and competenc[e]." Booth, 370 Wis. 2d 595, ¶14
(citing Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8, 349
21
No. 2018AP1129
Wis. 2d 234, 833 N.W.2d 665). Therefore, we labeled the concern
one of subject matter jurisdiction in Rohner, as did the court of
appeals in Jensen.
¶46 In Booth, we took the opportunity to clarify the legal
foundation of Rohner. Booth, 370 Wis. 2d 595, ¶14. The facts of
Booth are highly similar to the facts of the matter now before us,
except that the undercharged offense in Booth proceeded in circuit
court. Id., ¶¶2–5. After a thorough discussion, we concluded
that our subsequent case law on competence better explained the
results in Rohner. Id., ¶14. We also withdrew language from all
decisions that suggested otherwise. Id. This withdrawal included
language in Jensen that stated, "a municipal court does not have
subject matter jurisdiction to try and convict a criminal operating
while intoxicated." Jensen, 184 Wis. 2d at 99. It was competence
that the municipal court lacked in Jensen, not subject matter
jurisdiction.
¶47 The reasoning in our decision in Mikrut is important to
review here because in Mikrut, we detailed the significant
difference between subject matter jurisdiction and competence. We
said, "If a court has the power, i.e., subject matter jurisdiction,
to entertain a particular type of action, its judgment is not void
even though entertaining it was erroneous and contrary to the
statute." Mikrut, 273 Wis. 2d 76, ¶14. We said that a loss of
competence "can be triggered by a variety of defects in statutory
procedure." Id., ¶12. Furthermore, "a lack of competency does
not negate subject matter jurisdiction or nullify the
22
No. 2018AP1129
judgment . . . . Lack of competency is not 'jurisdictional' and
does not result in a void judgment." Id., ¶34 (citation omitted).
¶48 Upon our review of Mikrut in Booth, we reasoned: "the
proper characterization of the circuit court's deficiency in
Rohner was loss of circuit court competency to proceed to judgment
rather than negation of subject matter jurisdiction." Booth, 370
Wis. 2d 595, ¶14. We referred to Mikrut as teaching that
"noncompliance with statutory mandates affects only a court's
competency and will never affect its subject matter jurisdiction."
Id.
¶49 To explain further, subject matter jurisdiction and
competence are related but distinct concepts. "Subject matter
jurisdiction . . . 'refers to the power of a . . . court to decide
certain types of actions.'" Id., ¶7 (quoting State v. Smith, 2005
WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508). In other words,
subject matter jurisdiction is about the type or category of case
brought. Competence presupposes a court has subject matter
jurisdiction and is about a court's ability to exercise its
jurisdiction in an individual case. As we explained in Booth:
A circuit court's ability to exercise its subject
matter jurisdiction in individual cases . . . may be
affected by noncompliance with statutory requirements
pertaining to the invocation of that jurisdiction. The
failure to comply with these statutory conditions does
not negate subject matter jurisdiction but may under
certain circumstances affect the circuit court's
competency to proceed to judgment in the particular case
before the court. A judgment rendered under these
circumstances may be erroneous or invalid because of the
circuit court's loss of competency but is not void for
lack of subject matter jurisdiction.
23
No. 2018AP1129
Booth, 370 Wis. 2d 595, ¶12 (quoting Mikrut, 273 Wis. 2d 76, ¶2).
An objection to subject matter jurisdiction cannot be forfeited.
Booth, 370 Wis. 2d 595, ¶1. However, an objection to a court's
competence can be forfeited if it is not raised in a timely manner.
Id.
¶50 Hansen argues that our rationale in Booth rested on the
circuit court's plenary subject matter jurisdiction. Id., ¶¶8,
12. He argues that the circuit court could have heard the
proceeding in Booth if the OWI had been correctly charged as a
second-offense. Id. Hansen contends however, that municipal
courts are courts of limited jurisdiction, and therefore, the
reasoning in Booth does not apply. He says that had his 2005
violation been correctly charged, the municipal court could not
have heard it. However, it was charged based on the traffic
citations which were the pleadings that commenced the action.
Hansen knew that he had a prior OWI, but he chose to admit to OWI-
first and take advantage of the municipal court action.
¶51 In summary, we are unpersuaded that the municipal court
lacked subject matter jurisdiction. Hansen's contention goes only
to an initial inability to follow Wisconsin statutes that require
progressive penalties for OWI-related offenses. Accordingly,
under the facts of this case, only the municipal court's competence
was affected by the pleading.
24
No. 2018AP1129
D. Forfeiture of Competence Objections
¶52 Having concluded that the municipal court's subject
matter jurisdiction was properly invoked by the pleadings but that
the municipal court may have lacked competence, we next address
whether Hansen has forfeited his competence-based objection. We
conclude that he has.
¶53 The facts of this case are similar to Booth. The
defendant in Booth waited 22 years to object. Id., ¶25. We
suggested the delay and subsequent objection was "an attempt to
play fast and loose with the court system, which is something this
court frowns upon." Id. (citing State v. Petty, 201 Wis. 2d 337,
346–47, 548 N.W.2d 817 (1996)). For that reason, we did not
exercise our inherent authority to vacate the judgment. Booth,
370 Wis. 2d 595, ¶25. Here, Hansen waited more than a decade to
seek vacatur. We see no legal or equitable distinction between
the passage of time in this case and the passage of time in Booth.
Furthermore, we need not decide precisely when Hansen forfeited an
objection to competence, because he clearly did forfeit.
III. CONCLUSION
¶54 We conclude that the 2005 pleadings filed invoked the
municipal court's subject matter jurisdiction, which was granted
by Article VII, Section 14 of the Wisconsin Constitution.
Therefore, the municipal court had power to adjudicate the
allegation that Hansen operated a motor vehicle while intoxicated
in violation of a municipal ordinance. And further, even if we
were to agree with Hansen that Wisconsin's statutory progressive
OWI regulations were not followed in 2005, the municipal court
25
No. 2018AP1129
would have lacked only competence, not subject matter
jurisdiction. Id., ¶14.
¶55 And finally, an objection to a court's competence may be
forfeited if it is not raised in a timely manner. Id., ¶1. Hansen
was silent about his 2003 Florida OWI conviction until he was again
arrested for OWI in 2016. We conclude that, by his 11 years of
silence, Hansen has forfeited any competence objection that could
exist. Accordingly, both his 2005 and 2003 convictions were
countable offenses in 2016 for purposes of Wisconsin's statutory
progressive penalty requirements, and we reverse the order of the
circuit court.
By the Court.—The decision of the circuit court is reversed.
26
No. 2018AP1129.dk
¶56 DANIEL KELLY, J. (concurring). I join the majority's
opinion in its entirety. The sole purpose of my concurrence is to
address the dissent's deft, but pointless, reduction of a straw
man to a fine powder.
¶57 This case calls for us to determine whether the municipal
court had subject matter jurisdiction over the case it heard, and
if so, whether it was competent to hear it. When we talk about
subject matter jurisdiction, we are addressing a court's ability
to hear a particular type of case. City of Eau Claire v. Booth,
2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738 (Subject matter
jurisdiction "refers to the power of a court to decide certain
types of actions." (quoted source omitted)). When we talk about
competence, on the other hand, we are asking whether a court should
have heard a specific case. Id., ¶21 ("[A] failure to comply with
a statutory mandate pertaining to the exercise of subject matter
jurisdiction may result in a loss of the circuit court's competency
to adjudicate the particular case before the court." (quoted source
omitted)). Here, we must determine whether the municipal court
had subject matter jurisdiction over the type of case brought
against Mr. Hansen, and whether it was competent to hear this
specific case.
¶58 The analytical engine powering the dissent is its
failure to keep these concepts distinct. But perhaps more
surprising than that is the point at which the muddling of the two
began. The dissent insists that we may not analyze the municipal
court's subject matter jurisdiction with respect to the case it
actually heard. Instead, it says, we are supposed to act as if
1
No. 2018AP1129.dk
the municipal court heard something it refers to as a "second-
offense OWI" and then perform the jurisdictional analysis on that
non-existent case. Based on its analysis of this case that was
not, the dissent concludes that the municipal court did not have
subject matter jurisdiction to hear the actual case it did hear.
So its premise is a straw man: "[A] municipal court lacks the
power to sentence someone convicted of a subsequent OWI offense
precisely because that subsequent OWI offense cannot be an
ordinance violation, no matter how it is pled." Dissent, ¶20 n.8.
¶59 Why is this a straw man? Because Mr. Hansen was not
charged with, convicted of, or sentenced for, a "second-offense
OWI."1 Instead, the City cited Mr. Hansen for violating the
1 The dissent embedded a pretty significant error of law in
its straw man, to wit, its belief that there is something known as
a "second-offense OWI." There isn't. Nor is there any such thing
as a "first-offense OWI." The substantive offense known as "OWI"
exists without reference to the number of prior OWI convictions.
Here's why.
The definition of an OWI offense appears in Wis. Stat.
§ 363.63, and contains no reference to prior OWI convictions; the
penalties associated with that offense (which do depend on the
number of prior OWI convictions) may be found in Wis. Stat.
§ 346.65. The penalty, however, is not an element of the
substantive offense. State v. Wideman, 206 Wis. 2d 91, 104, 556
N.W.2d 737 (1996) ("A prior offense is an element of Wis. Stat.
§ 346.65(2)(c), the OWI penalty enhancement statute, rather than
of Wis. Stat. § 346.63(1), the substantive crime charged."). In
fact, the penalties are entirely distinct from the substantive
offense: "[Wis. Stat. §] 346.63(1) . . . defines the offense of
driving while intoxicated; it does not state the sentencing penalty
and it does not state the term of revocation. The penalty
provisions, "[Wis. Stat. §] 346.65 . . . are entirely independent
of the provision that defines the offense." State v. Banks, 105
Wis. 2d 32, 42, 313 N.W.2d 67 (1981) (quoting and agreeing with
Criminal Law; Drunk Driving, 69 Wis. Att'y Gen. Op. 49 (1980)).
So, as a matter of law, there is no such thing as a "second-offense
OWI," as the dissent seems to think.
2
No. 2018AP1129.dk
municipality's ordinance adopting the statutory prohibition
against operating a motor vehicle while "[u]nder the influence of
an intoxicant" ("OWI"). Wis. Stat. § 346.63(1)(a) (2005-06) (as
adopted by the City; see Cedarburg, Wisconsin Municipal Code § 10-
1-1(a) (2005)). The City prosecuted the ticket in municipal court
by presenting evidence that Mr. Hanson committed an OWI ordinance
violation. Upon Mr. Hanson's plea to an OWI ordinance violation,
the municipal court entered judgment against him for that ordinance
violation. The case ended with the municipal court imposing a
forfeiture for an OWI ordinance violation.
¶60 But for the dissent, none of this matters in determining
what type of case the municipal court heard. Apropos of quite
literally nothing, the dissent believes the municipal court wasn't
really hearing an OWI ordinance violation. Instead, contra the
entirety of the record, the dissent assumes the municipal court
was hearing a "second-offense OWI." Even if such a violation
existed (it doesn't), the dissent says it wouldn't matter what
offense the prosecuting agency actually presented to the municipal
court, or what evidence the court heard, or what judgment it
Although the majority uses the term "first-offense OWI" and
"second-offense OWI" as harmless shorthand references, when the
dissent uses them it's clear they are driving its legal analysis.
So, for example, it says that "[a] first-offense OWI citation for
someone with a prior countable OWI offense is a violation that
does not exist at law." Dissent, ¶29 n.9 (emphasis in original).
I suppose it's true that there is no such thing as a first-offense
OWI, but only because there is no such thing as any OWI offense
defined by the number of prior OWI convictions (or lack thereof).
An OWI offense stands alone, without reference to or reliance on
the defendant's prior OWI convictions. This error suffuses the
dissent's reasoning so thoroughly that it would be cumbersome to
call it out each time it occurs. So I won't.
3
No. 2018AP1129.dk
entered, or which sanctions it imposed.2 Instead, it believes the
case is properly defined and categorized solely by the defendant's
actions, "no matter how it is pled." Dissent, ¶20 n.8.
¶61 "No matter how it is pled"? It is hornbook law that the
pleadings define, form, and create the claims the court
adjudicates: "The pleading is to define the pleader's position in
the pending litigation." Hansher v. Kaishian, 79 Wis. 2d 374,
385, 255 N.W.2d 564 (1977) (emphasis added). The pleadings "frame
the issues to be resolved in the action . . . ." Id. (emphasis
added). "The function of pleadings is . . . creation of the
issue(s) to be tried." Knapke v. Grain Dealers Mut. Ins. Co., 54
Wis. 2d 525, 533, 196 N.W.2d 737 (1972) (emphasis added).
¶62 Pleadings are not protean documents that naturally
conform themselves to events as they actually occurred. Which is
why it is possible for a plaintiff to suffer judgment on the
pleadings even though the case could have gone forward if the
plaintiff had pled the case differently. See, e.g., Tietsworth v.
Harley-Davidson, Inc., 2007 WI 97, ¶61, 303 Wis. 2d 94, 735
N.W.2d 418 (plaintiff could not proceed on viable contract claims
because the pleading contained only tort claims); Piaskoski &
Assocs. v. Ricciardi, 2004 WI App 152, ¶29, 275 Wis. 2d 650, 686
N.W.2d 675 (plaintiff could not proceed on claims not contained in
2 "The question in this case is whether a municipal court had
subject-matter jurisdiction over an OWI offense that was brought
as an ordinance violation in municipal court when it should have
been criminally charged as a second-offense OWI in circuit court.
The majority says yes, and establishes a new rule: As long as an
ordinance violation was pled, a municipal court's subject-matter
jurisdiction is established. Respectfully, this is wrong."
Dissent, ¶1.
4
No. 2018AP1129.dk
the pleadings). For good or ill, a party is the master of its
pleadings and courts don't have the authority to act as though
they are not. See, e.g., Poeske v. Estreen, 55 Wis. 2d 238, 243
n.3, 198 N.W.2d 625 (1972) (In "challenges to pleadings the court
shall not '. . . give consideration to extrinsic evidence or
matters outside of the pleading or pleadings and not incorporated
or made part thereof . . . .'" (quoted source omitted)). So when
the dissent casually backhands the pleadings in this case with its
"no matter how it is pled" comment, it is ignoring the nature,
function, and role of pleadings in our courts. Under the dissent's
formulation, we are free to reject a pleading's contents in favor
of something we believe the proponent should have pled. That
proposition, if we were to accept it, would reduce pre-trial
practice (and, perhaps, every other aspect of a case) to chaos.
And the dissent offers neither reasoning nor authority to support
such a revolutionary concept.
¶63 Perhaps the dissent's insistence that we ignore the
pleadings' content grew out of the close similarity between the
actual case we are considering and the case that should have been
brought against Mr. Hansen (an OWI violation seeking civil
penalties versus an OWI violation seeking criminal penalties).
The dissent's logical error will fluoresce if we observe how it
would function when the charges are not so similar. Suppose that,
instead of driving drunk, someone (let's call him Mr. Smith) robbed
an individual as he was walking through a Cedarburg park. Suppose
further that, instead of arresting Mr. Smith for robbery, the
police cited him for disorderly conduct (a violation of Cedarburg's
5
No. 2018AP1129.dk
ordinances). And finally, suppose that the municipal court heard
the disorderly conduct case, entered judgment against Mr. Smith
for disorderly conduct, and assessed a fine allowed by the
ordinances for such a violation. Now, years later, Mr. Smith
appears before us claiming——just like Mr. Hansen——that the
judgment against him is null and void because the municipal court
lacked subject matter jurisdiction over his case.
¶64 If we were to employ the dissent's reasoning, Mr. Smith
would succeed. He committed robbery, he would tell us, not
disorderly conduct. So when the municipal court heard the
disorderly conduct case, it was actually purporting to exercise
jurisdiction over a robbery case. And because municipal courts
have no subject matter jurisdiction over robbery cases, the
judgment against him must be a nullity. The dissent's analysis
would require the conclusion that "a municipal court lacks the
power to sentence someone convicted of a [robbery] precisely
because a [robbery] cannot be an ordinance violation, no matter
how it is pled." Dissent, ¶20 n.8 (creative editing added).
¶65 Now, it is certainly true that if the City (in my
hypothetical) had pled a robbery instead of disorderly conduct,
the municipal court would have rightly dismissed the complaint for
lack of subject matter jurisdiction. But must it also dismiss the
case when the City pleads disorderly conduct instead of robbery?
Of course not. There is no legal theory in our canon authorizing
a court to pretend the plaintiff had pled something it had not,
and plenty that forbids the court from doing so. Poeske, 55
Wis. 2d at 243 n.3; Tietsworth, 303 Wis. 2d 94, ¶61; Ricciardi,
6
No. 2018AP1129.dk
275 Wis. 2d 650, ¶29. Therefore, the disorderly conduct claim
could still proceed because municipal courts have subject
jurisdiction over such offenses even though what Mr. Smith had
"actually" done was commit a robbery. The dissent's reasoning
would hold that the municipal court in my hypothetical was really
hearing a robbery case because the reference point is not the
pleadings or court proceedings, but what it knows about what Mr.
Smith "actually" did. For jurisdictional purposes, however, the
only things that matter are what the complaint pleads, what the
municipal court hears, what judgment it renders, and what
consequences it imposes.3 If each of those elements fits within
"actions and proceedings arising under ordinances of the
municipality,"4 the municipal court is properly exercising subject
matter jurisdiction——even when the defendant's conduct, taken as
a whole, also qualifies as something over which the municipal court
3 The dissent says this is inconsistent with the court's
opinion that the pleadings, alone, establish jurisdiction: "I
have no idea how both rules can be true. Either subject-matter
jurisdiction is established based on the pleading, and is not
challengeable afterwards, or not." Dissent, ¶29 n.10. It does
not appear the dissent has accounted for ¶38 n.17 and ¶39 n.18 of
the majority opinion, both of which acknowledge that subject matter
jurisdiction is subject to challenge after pleading. I have also
addressed the evidence, judgment, and penalty phases of the case
in the interest of comprehensiveness. The majority opinion
contains no suggestion that it would disagree with the proposition
that the municipal court must remain within its constitutionally-
conferred jurisdictional boundaries throughout the proceedings.
4 Wis. Const. art. VII, § 14.
7
No. 2018AP1129.dk
has no subject matter jurisdiction. So the offense the charging
agency pleads is not just important, it is nigh on dispositive.5
¶66 The dissent says this illustration is a mere curiosity
because "a person can validly be charged with a disorderly conduct
ordinance violation regardless of whether a more serious charge is
warranted, but cannot be given a citation for first-offense OWI
unless it is in fact a first-offense OWI."6 Dissent, ¶29 n.10. I
could not have crystallized the dissent's logical hitch better
than that statement. Yes, Mr. Smith could be cited for disorderly
conduct even though all the facts add up to robbery (a crime over
which the municipal court has no subject matter jurisdiction), but
only because pleadings define the offense the court is
adjudicating. And in my illustration the pleadings described an
offense over which a municipal court has subject matter
jurisdiction. It must also be true, therefore, that if the
pleadings describe an OWI ordinance violation, then the municipal
court has jurisdiction over the case even though the totality of
the facts add up to an offense for which criminal sanctions are
available. That is to say, what is true for the first clause in
the quote must also be true for the second clause. So the quote
evidences a logical glitch that is causing the dissent to reject
the pleading's definitional power in the OWI context even as it
accepts it in my illustration.
It is only "nigh on" dispositive because, as already noted,
5
we must also account for the evidence produced and the court's
disposition of the matter.
Once again, the dissent's analysis depends on its belief in
6
an offense known as "first-offense OWI."
8
No. 2018AP1129.dk
¶67 Now we arrive at the only meaningful distinction between
my illustration and Mr. Hansen's case——the question of a
prosecutor's charging discretion. In most circumstances, a
prosecutor has the discretion to charge an offense less serious
than the facts warrant. Sears v. State, 94 Wis. 2d 128, 133, 287
N.W.2d 785 (1980) ("In addition to his discretion in determining
whether or not to prosecute, the prosecuting attorney is afforded
great latitude in determining which of several related crimes he
chooses to file against the defendant."). But our OWI statutes
make no such allowance. If a defendant has committed a prior
countable OWI offense, the prosecutor may not pursue an ordinance
violation, but must instead charge the OWI offense in circuit court
so criminal penalties can be imposed. Booth, 370 Wis. 2d 595, ¶23
("[C]riminal penalties are required of all OWI convictions
following an OWI first-offense conviction."). So let's account
for that distinction and see if it makes a difference. Let's say
the Legislature enacts a statute providing that when the facts add
up to a robbery the defendant may not be tried for a disorderly
conduct ordinance violation, but must instead be criminally
charged. That puts my illustration on all fours with this case:
The municipal court has subject matter jurisdiction over both
disorderly conduct ordinance violations as well as OWI ordinance
violations; the municipal court has no jurisdiction over either
robbery or criminal sanctions for OWI offenses; and the prosecutor
has no discretion to charge ordinance violations when the
defendant's actions add up to either robbery or an OWI offense
punishable by criminal sanctions. The dissent says that under
9
No. 2018AP1129.dk
these circumstances the municipal court has no subject matter
jurisdiction to hear an OWI ordinance violation, and presumably
would say the same about the disorderly conduct ordinance
violation. But the only difference between my illustration as
originally constructed and as modified is a statute removing a
prosecutor's charging discretion. So the question is whether a
statute can oust the municipal court's subject matter
jurisdiction.
¶68 The answer, quite obviously, is that it cannot inasmuch
as a statute cannot revoke what a constitution grants. State ex
rel. Ozanne v. Fitzgerald, 2011 WI 43, ¶71, 334 Wis. 2d 70, 798
N.W.2d 436 (Prosser, J., concurring) ("Constitutional commands
cannot be changed at the whim of the legislature; statutory
provisions may."). The source of subject matter jurisdiction for
both municipal courts and circuit courts is the Wisconsin
Constitution,7 a source impervious to statutory modifications. We
have already recognized this foundational principle in the OWI
context, where we said that restricting a prosecutor's charging
discretion does not, and cannot, affect a court's subject matter
jurisdiction: "[N]oncompliance with statutory mandates [that is,
the charging decision] affects only a court's competency and will
never affect its subject matter jurisdiction." Booth, 370
Wis. 2d 595, ¶14. So a statute limiting a prosecutor's charging
discretion can do nothing to a municipal court's subject matter
jurisdiction.
7 See Wis. Const. art. VII, §§ 8, 14.
10
No. 2018AP1129.dk
¶69 If that is so (and it is), then we return full circle to
the dissent's problematic understanding of what a pleading is.
The dissent's conclusion depends on the premise that pleadings do
not define, form, or create the issues to be tried. Instead, it
must assume that a pleading's contents automatically conform to,
or are supplemented by, someone's birds-eye view of all the facts.
That is a concept entirely unknown to the law. See Hansher, 79
Wis. 2d at 385; Knapke, 54 Wis. 2d at 533.
¶70 With these principles in mind, the unavoidable
conclusion is that the municipal court had subject matter
jurisdiction to hear the case it heard. We all agree that
municipal courts have subject matter jurisdiction over OWI
ordinance violations. And as discussed above, the pleadings define
the type of action the municipal court adjudicates. The pleading
in this case said Mr. Hansen had violated Cedarburg, Wisconsin
Municipal Code § 10-1-1(a) (2005). That ordinance adopted "the
statutory provisions in Chapters 340 to 348 of the Wisconsin
Statutes, describing and defining regulations with respect to
vehicles and traffic," except for "any regulations for which the
statutory penalty is a fine or term of imprisonment or exclusively
state charges . . . ." Because Cedarburg did not adopt any
criminal penalties, the offense described in the pleading can be
nothing but an OWI ordinance violation punishable by civil
penalties.
¶71 According to our law (but not according to the dissent,
of course) the pleading defined the case as a type of action over
which the municipal court had subject matter jurisdiction. And
11
No. 2018AP1129.dk
the proceedings never deviated from that foundational definition.
It did not hear evidence that would require imposition of criminal
sanctions, and it did not in fact impose a criminal sanction. From
start to finish, therefore, the "type of action[]" over which the
municipal court presided remained an ordinance violation. And
because it was the type of matter the constitution entrusts to
municipal courts, the municipal court had subject matter
jurisdiction over Mr. Hansen's case.
¶72 But just because the municipal court had subject matter
jurisdiction does not mean the municipal court should have
adjudicated Mr. Hansen's case. Not because the case was of the
wrong type, but because a piece of information (unknown to the
City and the municipal court at the time) triggered a statutory
command that Mr. Hansen be prosecuted as a criminal instead of an
ordinance violator. This is where the concept of "competency"
plays its role. Whereas subject matter jurisdiction addresses the
"type" of case a court may hear, "competency refers to its 'ability
to exercise the subject matter jurisdiction vested in it' . . . ."
Vill. of Elm Grove v. Brefka, 2013 WI 54, ¶16, 348 Wis. 2d 282,
832 N.W.2d 121, amended, 2013 WI 86, 350 Wis. 2d 724, 838
N.W.2d 87 (quoted source omitted). Consequently, a court may
simultaneously have subject matter jurisdiction over a case, but
have no ability to exercise it.
¶73 Because Mr. Hansen had a prior OWI, his commission of an
OWI violation was punishable by criminal sanctions. See generally
Wis. Stat. § 356.65(2) (describing how penalties escalate for
successive OWI violations); see also Cty. of Walworth v. Rohner,
12
No. 2018AP1129.dk
108 Wis. 2d 713, 716, 324 N.W.2d 682 (1982) ("Sec. 346.65(2)
establishes an escalating penalty scheme for violation of the drunk
driving statute."). Therefore, the City erred when it cited Mr.
Hansen for an OWI ordinance violation——not because he committed a
"second-offense OWI," but because his OWI violation was subject to
criminal sanctions, which only circuit courts may assess. But
this error is extrinsic to the court's proceedings, not intrinsic.
That is to say, it affected what the case should have been, not
what the case was. Subject matter jurisdiction concerns itself
with what the case was. Competency concerns itself with what it
should have been. Mr. Hansen's case before the municipal court
was an OWI ordinance violation. It should have been an OWI
violation pursued in a circuit court so that criminal sanctions
could be assessed. So the municipal court simultaneously had
subject matter jurisdiction over the OWI ordinance violation, but
did not have competency to hear the case because our statutes
require that it be pursued in circuit court.
¶74 The dissent's straw man indelibly colored its
understanding and discussion of Booth, Rohner, and City of Kenosha
v. Jensen, 184 Wis. 2d 91, 516 N.W.2d 4 (Ct. App. 1994). But if
it had reoriented its analysis to account for the fact that the
municipal court adjudicated an OWI ordinance violation, it would
have found that these cases are consistent with the court's
conclusion today. This trio (after Booth's adjustment to account
for the difference between competency and subject matter
jurisdiction) teaches that circuit courts have exclusive
jurisdiction to prosecute OWI violations punishable by criminal
13
No. 2018AP1129.dk
sanctions, and that they lack the competency to adjudicate such
cases as ordinance violations. To the extent the court of appeals
suggested in Jensen that the municipal court had heard a criminal
OWI case, it made the same mistake as the dissent. Eliminating
that mistaken assumption and applying the Booth adjustment brings
Jensen into perfect alignment with both Booth and Rohner.
¶75 The dissent derides Booth's correction of prior cases as
a "chiropractic adjustment," whatever that means, but otherwise
refuses to acknowledge its import with respect to Banks and Jensen.
The Booth analysis applies to municipal courts as well as circuit
courts. The effects are not as broad because a municipal court's
subject matter is not as broad as that of a circuit court. But
with respect to the matter at hand, there is no relevant
distinction. Both the circuit court in Booth and the municipal
court here had subject matter jurisdiction to hear OWI ordinance
cases. In both Booth and this case, it turns out that the defendant
should not have been charged with an OWI ordinance violation. That
error, however, affects competency, not jurisdiction. As we said
in Booth, "noncompliance with statutory mandates affects only a
court's competency and will never affect its subject matter
jurisdiction." 370 Wis. 2d 595, ¶14. Therefore, we concluded,
"the proper characterization of the circuit court's deficiency in
Rohner was loss of circuit court competency to proceed to judgment
rather than negation of subject matter jurisdiction." Id. There
is no reason this principle does not apply to municipal courts
just as it does to circuit courts. Indeed, it must apply with
equal force to municipal courts, and could hardly be otherwise.
14
No. 2018AP1129.dk
The Wisconsin Constitution's conferral of subject matter
jurisdiction on municipal courts is no more susceptible to
statutory modification than its conferral of subject matter
jurisdiction on circuit courts. Our OWI statutes can deprive the
municipal court of competency to hear a specific case, but as we
recognized in Booth, they can never affect the court's subject
matter jurisdiction. Consequently, because the municipal court
had subject matter jurisdiction to hear an OWI ordinance violation,
Booth says its jurisdiction cannot be dislodged simply because the
case should have been charged as a criminal OWI violation. It
merely loses competence.
¶76 The dissent's refusal to read Banks and Jensen in light
of Booth apparently stems from its belief that we shared its straw
man's assumption that we must perform the jurisdictional analysis
on the case that should have been brought rather than the case the
court actually adjudicated. But we did not, and the entirety of
Booth's analysis rejects that assumption. The whole point of Booth
was to determine whether the circuit court had competency to
adjudicate the case presented to it——an OWI ordinance violation.
Our conclusion that it lacked competence depended entirely on the
fact that the case it adjudicated actually was an ordinance
violation, not a criminal OWI in disguise. Here, just as in Booth,
the municipal court heard an ordinance violation.8 And just like
in Booth, the municipal court had subject matter jurisdiction to
8The record is uncompromisingly clear on this point——the
pleadings, the evidence, the judgment, and the forfeiture all
demonstrate beyond a cavil of a doubt that the municipal court
adjudicated a first-offense OWI.
15
No. 2018AP1129.dk
hear such a case. And just like in Booth, the municipal court was
not competent to adjudicate the ordinance violation because it
should have been charged as a criminal matter.9
¶77 The dissent contains one more significant error that
bears some discussion. It correctly observes that subject matter
jurisdiction is always subject to challenge. State v. Bush, 2005
WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 holding modified by
Booth, 370 Wis. 2d 595 ("[C]hallenges to subject matter
jurisdiction cannot be waived[.]"). But in making that
observation, it simultaneously misconstrues the nature of such a
challenge:
If the pleading, trial, judgment, and consequences
imposed effectually establish subject-matter
jurisdiction, how can that oft-repeated precedent
allowing subject-matter jurisdiction challenges after
the fact still be true? This is not the way subject-
matter jurisdiction works in federal court, and this is
not the way we have ever described the subject-matter
jurisdiction of municipal courts or other judicial
bodies with limited subject-matter jurisdiction until
today.
Dissent, ¶29 n.10.
¶78 The key to a successful jurisdictional challenge is
understanding that it is a subtractive endeavor. That is to say,
a litigant setting out to demonstrate a court lacks jurisdiction
must establish that one or more conditions or facts necessary to
the invocation of jurisdiction does not exist. State ex rel. R.G.
v. W.M.B., 159 Wis. 2d 662, 668, 465 N.W.2d 221 (Ct. App. 1990)
9 There is no need to overrule Banks or Jensen in this case,
in whole or in part. But only because Booth already rejected the
conflation of subject matter jurisdiction and competence on which
the dissent's analysis depends.
16
No. 2018AP1129.dk
("The party claiming that a judgment is void for lack of subject
matter jurisdiction has the burden of proving subject matter
jurisdiction did not exist."). Thus, if the plaintiff in a federal
case invokes diversity jurisdiction, the defense can defeat the
court's jurisdiction by demonstrating one of two conditions is not
true——either that the parties are not diverse, or the amount in
controversy does not satisfy the threshold. Hart v. FedEx Ground
Package Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006) (affirming
the district court's order remanding a case to state court for
lack of complete diversity of the parties); and Gardynski-Leschuck
v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) ("Unless the
amount in controversy was present on the date the case began, the
suit must be dismissed for want of jurisdiction.").
¶79 The nature of the challenge is no different when
considering the municipal court's subject matter jurisdiction. If
Mr. Hansen is to succeed, he must prove that a fact or condition
necessary to the invocation of the municipal court's subject matter
jurisdiction does not obtain. We know that, pursuant to the
Wisconsin Constitution, a municipal court has subject matter
jurisdiction over "actions and proceedings arising under
ordinances of the municipality."10 We also know that Cedarburg has
an ordinance making it unlawful to operate a vehicle while
intoxicated as described by Wis. Stat. § 346.63(1)(a). See
Cedarburg, Wisconsin Municipal Code § 10-1-1(a) (2005). And
although we informally refer to the citation in this case as being
10 Wis. Const. art. VII, § 14.
17
No. 2018AP1129.dk
a "first-offense OWI," there is no such thing——an OWI offense
exists separate and apart from the number of the defendant's prior
OWI convictions. See supra ¶4 n.1. And that necessarily means
there is nothing in the ordinance or the Wisconsin Constitution
that requires proof that the defendant had no prior OWI convictions
as a predicate to invoking the municipal court's jurisdiction.
Consequently, because the citation pled a violation of Cedarburg's
ordinance, and invoking the municipal court's subject matter
jurisdiction did not require establishing that Mr. Hansen's
conduct did not require imposition of criminal penalties, the
jurisdictional challenge must necessarily fail.
¶80 The dissent's misunderstanding of jurisdictional
challenges apparently flows from its assumption that they can be
additive, as opposed to subtractive, in nature. That is, it seems
to believe that if a defendant's conduct adds up to an offense
over which the municipal court does not have jurisdiction, then it
necessarily follows that the defendant's conduct cannot comprise
an offense over which it does have subject matter jurisdiction.
But as demonstrated by my disorderly conduct/robbery illustration,
that is most assuredly not true. And the statutory elimination of
the prosecutor's charging discretion cannot change this because we
know that statutes cannot affect constitutional grants of subject
matter jurisdiction.
¶81 That is not to say that OWI ordinance violations are
immune from jurisdictional challenges. To the contrary, it is
simply to say that, like all other such challenges, they are
subtractive in nature. An attempt to assess criminal sanctions
18
No. 2018AP1129.dk
against Mr. Hansen in municipal court, for example, would be
subject to a jurisdictional challenge. Mr. Hansen would merely
need to point out that criminal sanctions do not arise under a
municipal ordinance. Because the municipal court only has
jurisdiction over ordinance violations, with their attendant civil
penalties, Mr. Hansen's challenge would effectively demonstrate
that one of the necessary conditions to invoking the municipal
court's subject matter jurisdiction has not been satisfied.11
¶82 There is no need to catalog the rest of the errors in
the dissent's analysis——they are all premised on the initial
assumption that we must act as though the municipal court heard a
case that it did not. Because of that mistaken assumption, the
dissent was unable to keep the concept of subject matter
jurisdiction distinct from a court's competence. Without those
foundational errors, the case resolves as a matter of course in a
manner that I suspect even the dissent would accept. As the
majority explained, objections to a court's competency must be
timely raised, whereas objections to a court's subject matter
jurisdiction may be raised at any time.12 Majority op., ¶49.
Because Mr. Hansen's challenge goes to the municipal court's
competence to hear his case, his failure to raise it in a timely
11This explanation, of course, is based on the fact that
pleadings define, form, and create the issues to be adjudicated.
I recognize that the dissent does not believe this.
12See United States v. Cotton, 535 U.S. 625, 630 (2002)
("[S]ubject-matter jurisdiction, because it involves a court's
power to hear a case, can never be forfeited or waived.").
19
No. 2018AP1129.dk
manner means he may no longer challenge the judgment. Booth, 370
Wis. 2d 595, ¶25.
¶83 Because I agree that the municipal court had subject
matter-jurisdiction, but not competency, over Mr. Hansen's case,
I join the majority opinion.
¶84 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
20
No. 2018AP1129.bh
¶85 BRIAN HAGEDORN, J. (dissenting). The question in this
case is whether a municipal court had subject-matter jurisdiction
over an OWI offense that was brought as an ordinance violation
when it should have been criminally charged as a second-offense
OWI in circuit court. The majority says yes, and establishes a
new rule: as long as an ordinance violation was pled, a municipal
court's subject-matter jurisdiction is established. Respectfully,
this is wrong.
¶86 A faithful application of our constitution, statutes,
and cases yields a contrary result. Our law makes clear that
municipal courts are courts of limited subject-matter jurisdiction
that may only hear ordinance violations. A second-offense OWI is
a criminal offense, not an ordinance violation, and must be brought
as such. Accordingly, the municipal court lacked subject-matter
jurisdiction to entertain the improperly charged OWI offense, and
the judgment is null and void.
I
¶87 The basic principles governing this case are not
complicated. In order to hear a particular case, a court must
have power to entertain the kind of action brought. This power is
known as subject-matter jurisdiction. Wis. Stat. § 801.04(1)
(2017-18).1 Subject-matter jurisdiction "is conferred by the
constitution and statutes of this state and by statutes of the
United States." Id. But even assuming a court has subject-matter
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
1
No. 2018AP1129.bh
jurisdiction, a court wishing to render a valid judgment must have
the power to exercise that jurisdiction in the particular case
before it. This is called competence. Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190.
¶88 If a court lacks subject-matter jurisdiction, a judgment
entered by the court is null and void because the court never had
the power to hear the case in the first place. Kohler Co. v.
DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977). A court may also
lose its competence——and thus be deprived of the power to enter a
valid judgment——"when the parties seeking judicial review fail to
meet certain statutory requirements."2 Xcel Energy Servs., Inc.
v. LIRC, 2013 WI 64, ¶28, 349 Wis. 2d 234, 833 N.W.2d 665. But
unlike the absence of subject-matter jurisdiction, a court's loss
of competence generally does not void a prior judgment.
¶89 The subject-matter jurisdiction of circuit courts is
defined by the Wisconsin Constitution, which states: "Except as
otherwise provided by law, the circuit court shall have original
jurisdiction in all matters civil and criminal within this
state . . . ." Wis. Const. art. VII, § 8. In recent years, we
have made an effort to clarify subject-matter jurisdiction and
competence. And in Mikrut, we explained that pursuant to this
constitutional language, circuit courts have plenary subject-
matter jurisdiction. 273 Wis. 2d 76, ¶¶8-9. That is, circuit
2 A statutory mandate that is "central to the statutory
scheme" deprives a court of its competence. See Xcel Energy
Servs., Inc. v. LIRC, 2013 WI 64, ¶28, 349 Wis. 2d 234, 833
N.W.2d 665 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79,
¶10, 273 Wis. 2d 76, 681 N.W.2d 190).
2
No. 2018AP1129.bh
courts have the power to hear any type of case, and this power may
not be curtailed by statute. Id.
¶90 How then do we categorize failures to comply with various
statutory requirements in circuit court? These failures are not
matters of subject-matter jurisdiction——which, again, "is plenary
and constitutionally-based." Id., ¶9. Rather, statutory
noncompliance implicates only a circuit court's competence. Id.
¶91 The subject-matter jurisdiction of municipal courts
works quite differently. We begin once more with the Wisconsin
Constitution, which provides in relevant part: "All municipal
courts shall have uniform jurisdiction limited to actions and
proceedings arising under ordinances of the municipality in which
established." Wis. Const. art. VII, § 14. Thus, the Wisconsin
Constitution does not grant municipal courts the same kind of
plenary subject-matter jurisdiction granted to circuit courts.
Rather, municipal court jurisdiction is "limited" only "to actions
and proceedings arising under ordinances." Id.
¶92 This limited grant of subject-matter jurisdiction is
further colored by statute.3 Wisconsin Stat. § 755.045(1) provides
that "[a] municipal court has exclusive jurisdiction over an action
in which a municipality seeks to impose forfeitures for violations
of municipal ordinances of the municipality that operates the
court . . . ." And relevant here, Wis. Stat. § 349.06(1) permits
3Because Article VII, Section 14 authorizes the legislature
to establish a municipal court, we have recognized our municipal
courts "are creatures of the legislature" that are bound by the
legislature's constitutional policy choices. See City of Sun
Prairie v. Davis, 226 Wis. 2d 738, 755-56, 595 N.W.2d 635 (1999).
3
No. 2018AP1129.bh
municipalities to adopt municipal traffic ordinances that strictly
conform to the state's traffic laws and "for which the penalty
thereof is a forfeiture."
¶93 Understanding the issue in this case, as well as prior
cases on these matters, requires one additional piece of
background: our statutory scheme for OWIs and its escalating
penalty structure. Wisconsin statutes define the violation of
operating while intoxicated in Wis. Stat. § 346.63(1). However,
the penalty for the violation is separately laid out in Wis. Stat.
§ 346.65(2)(am). That paragraph establishes an escalating penalty
structure that turns on the number of prior countable offenses.
The bottom line is that first-offense OWIs are civil in nature and
punishable by forfeiture——a policy decision unique to this state—
—while all subsequent OWI offenses are criminal matters. See
§ 346.65(2)(am).4
II
¶94 With this background in mind, we turn to our cases
applying these principles. In 1981, this court first explained
the mandatory OWI penalty structure described above. State v.
Banks, 105 Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981). Banks involved
a civil forfeiture judgment entered on an OWI citation that should
4 The concurrence accuses this dissent of "a pretty
significant error of law" for saying "something known as a 'second-
offense OWI'" exists. Concurrence, ¶4 n.1. Yet that same
nomenclature for OWI offenses under our unique statutory scheme is
used by the majority in this very case, and in innumerable other
cases in the Wisconsin Reports. Majority op., ¶¶14, 17, 19, 32;
see also, e.g., City of Eau Claire v. Booth, 2016 WI 65, ¶16, 370
Wis. 2d 595, 882 N.W.2d 738 ("Booth Britton's argument fails
because first-offense and second-offense OWIs are both offenses
known at law as set forth in our statutes.").
4
No. 2018AP1129.bh
have been charged as a second-offense crime. Id. at 43. At the
time the judgment was entered, the presiding court commissioner
was "unaware" that only two weeks earlier the defendant had been
convicted of a separate OWI offense. Id. at 36. When so advised,
the court commissioner vacated the judgment as null and void and
referred the matter for criminal prosecution, despite the fact
that the citation was pled and tried as a first-offense civil
forfeiture. Id. Banks was criminally charged with a second-
offense OWI, and eventually this court was called to address his
claim that the criminal prosecution constituted double jeopardy.
Id. at 38.
¶95 We said no such violation had occurred. Instead, we
stated that, because the OWI offense should have been criminally
charged as a second offense,5 the proceeding before the court
commissioner was "in effect a nullity for lack of jurisdiction."
Id. at 43-44. This is so because the court commissioner had no
statutory authority to preside over a case involving a criminal
drunk driving offense, and therefore the civil forfeiture judgment
on the incorrectly charged OWI offense had been properly vacated.
Id. at 40-41.
¶96 Then, in 1982, this court considered whether a
prosecutor had discretion to charge what was factually a second-
5 Starting with Banks, our cases have consistently interpreted
the OWI penalty structure to require mandatory escalating
penalties with each subsequent offense. See State v. Banks, 105
Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981); City of Lodi v. Hine, 107
Wis. 2d 118, 122-23, 318 N.W.2d 383 (1982); County of Walworth v.
Rohner, 108 Wis. 2d 713, 717-18, 324 N.W.2d 682 (1982); State v.
Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852
N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24.
5
No. 2018AP1129.bh
offense criminal OWI as a civil forfeiture ordinance violation.
County of Walworth v. Rohner, 108 Wis. 2d 713, 715, 324 N.W.2d 682
(1982). The issue in Rohner arose at trial——on an ordinance
violation pleading——when it was revealed that the defendant's OWI
was a second offense. Id. at 715. After the prosecutor chose not
to file a new criminal complaint, the circuit court heard the
action as an ordinance violation. Id. We unanimously reversed.
Id. at 722. Relying on the mandatory escalating penalty structure
established by the legislature, we held that a second-offense OWI
must be brought as a criminal offense. Id. at 717-18 (citing
Banks, 105 Wis. 2d at 39). Charging authorities have no discretion
to charge what is in fact a second-offense OWI as a first-offense
civil forfeiture. Id. at 720-21. And given this, it is the State
that "has exclusive authority to prosecute second offenses for
drunk driving." Id. at 722.
¶97 After Banks and Rohner, the court of appeals addressed
the question of what becomes of a municipal court judgment on an
OWI charge that should have been——indeed, per our earlier
decisions, was required to be——brought as a criminal offense. In
City of Kenosha v. Jensen, the City had moved the municipal court
to vacate an OWI civil forfeiture judgment on the grounds that the
court lacked subject-matter jurisdiction over an incorrectly
charged OWI offense. 184 Wis. 2d 91, 92-93, 516 N.W.2d 4 (Ct.
App. 1994). In raising its motion for postjudgment relief, the
City informed the municipal court that, unbeknownst at the time
the forfeiture judgment was entered, the defendant had been
previously convicted of a separate OWI offense. Id. at 92-94.
6
No. 2018AP1129.bh
The municipal court found it necessary to vacate the judgment, as
did the circuit court. Id. Likewise, before the court of appeals,
the State appeared as an amici and argued that the municipal court
had no jurisdiction to hear a case involving an OWI that should
have been criminally charged. Id. at 98-99. Relying on our
precedent saying as much, the court of appeals agreed:
[W]e want to make clear what we are not deciding. We
are not holding that in every [OWI] case where the
municipal attorney finds out that an offense is actually
a second or subsequent offense within five years, the
municipal attorney must seek vacation of the municipal
judgment before criminal proceedings can ensue. Quite
the contrary, the State may proceed regardless of
whether the municipal attorney or the municipal court
first acts. As the State points out in its amicus curiae
brief, a municipal court does not have subject matter
jurisdiction to try and convict a criminal operating
while intoxicated. Any such municipal action is null
and void. See County of Walworth v. Rohner, 108
Wis. 2d 713, 722, 324 N.W.2d 682, 686 (1982); State v.
Banks, 105 Wis. 2d 32, 40-41, 313 N.W.2d 67, 71 (1981).
As no jeopardy has attached as a result of municipal
court action, the State may proceed regardless of what
the municipal attorney or the municipal court does. The
municipal judgment having no force or effect, it is as
if it never took place.
Id. (emphasis added).
¶98 The court of appeals then rejected Jensen's argument
that the City "knew or should have known" of the earlier offense
at the time it negotiated a plea agreement for the now-vacated
judgment. Id. at 100. As the court explained, "the City had no
authority to enter the plea agreement in the first place" because
as a factual matter the underlying OWI was a second-offense
criminal charge. Id.
7
No. 2018AP1129.bh
¶99 For several decades now, the courts of our state have
understood and held that a municipal court has no subject-matter
jurisdiction over a second or subsequent OWI offense, and hence,
such judgments are null and void. See, e.g., State v. Strohman,
No. 2014AP1265-CR, unpublished slip op., ¶¶2-3, 17 (Wis. Ct. App.
Feb. 3, 2015) (citing Jensen for the proposition that "because an
offense that is actually a qualified second (or greater) OWI
offense can only be criminally prosecuted, any municipal
proceeding regarding such an offense is 'null and void[,]' with
any such municipal judgment 'having no force or effect, [such that]
it is as if it never took place'").
¶100 Three years ago, in City of Eau Claire v. Booth, we
addressed whether a circuit court lacks subject-matter
jurisdiction over an action based on a mischarged OWI offense.
2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738. Booth arose from
a civil forfeiture judgment on a first-offense OWI that had been
voided by a circuit court in reliance on Rohner. Id., ¶4.
Applying the same long-established principles, we explained that
mischarging an OWI does not affect a circuit court's subject-
matter jurisdiction because circuit courts have plenary subject-
matter jurisdiction under our constitution. Id., ¶¶1, 14. That
is, regardless of whether an OWI is incorrectly charged as a first-
offense ordinance violation or correctly charged as a second-
offense crime, our constitution grants circuit courts power to
hear the action and enter a judgment on the matter. Thus, even
though mischarging an OWI as a civil forfeiture in circuit court
constitutes a failure to abide by the mandatory OWI penalty
8
No. 2018AP1129.bh
structure, statutory noncompliance of that kind results only in a
loss of the circuit court's competence. Id., ¶¶14, 19, 24.
Playing this logic out, we determined that the defendant forfeited
her competence challenge after waiting 22 years to bring a
collateral attack. Id., ¶25.
¶101 Booth drew no blood on the core holdings of Banks,
Rohner, and Jensen. Because our cases since Rohner——Mikrut in
particular——have more clearly distinguished circuit court subject-
matter jurisdiction and competence, we withdrew any language that
suggested statutory deficiencies like the one in Booth were matters
of circuit court subject-matter jurisdiction as opposed to
competence. Booth, 370 Wis. 2d. 595, ¶14. In so doing, we
emphasized that our decision "leaves intact Rohner's holding 'that
the state has exclusive jurisdiction over a second offense for
drunk driving.'" Id., ¶15 (quoting Rohner, 108 Wis. 2d at 716).
And in line with this exclusive prosecutorial authority, "criminal
penalties are required of all OWI convictions following an OWI
first-offense conviction," meaning our circuit courts have
exclusive subject-matter jurisdiction to enter a judgment on a
second-offense OWI. Id., ¶23 (citing Rohner, 108 Wis. 2d at 717-
18, and Banks, 105 Wis. 2d at 39).
III
¶102 Applying the constitutional text and our precedent to
the case before us today yields a clear outcome. Unlike circuit
courts, municipal courts have limited subject-matter jurisdiction.
They can only hear municipal ordinance violations. Relying on the
9
No. 2018AP1129.bh
OWI statutory scheme, our cases make clear that an ordinance
violation for a second-offense OWI does not exist at law; a second-
offense OWI is a criminal matter. The State has exclusive
authority to prosecute such charges, and circuit courts have
exclusive subject-matter jurisdiction to hear such cases. Thus,
a municipal court has no constitutional grant of power——i.e., no
subject-matter jurisdiction——to entertain an action based on an
OWI offense that statutorily should have been and must be charged
as a second-offense OWI. Any judgment or order entered in such an
action is null and void.
¶103 The majority's contrary conclusion finds its footing in
a single proposition that amounts to a false foundation. It
maintains that municipal court subject-matter jurisdiction is
established based on the four corners of an ordinance citation
alone. Majority op., ¶¶3, 29, 54. The majority's discussion in
support of its pleading-establishes-jurisdiction rule covers three
areas. First, the majority relies on the "arising under" language
in Article VII, Section 14 of the Wisconsin Constitution. Second,
the majority endeavors to enlist the law of federal subject-matter
jurisdiction in aid of its argument. Finally, the majority implies
that its holding is grounded in our prior cases, especially our
recent decision in Booth. In fact, nothing in the text of our
constitution, nothing in the law of federal jurisdiction, and
nothing in our prior cases suggest that invoking jurisdiction
conclusively establishes jurisdiction. In reaching its conclusion
today, the majority not only fails to apply our law, it blatantly
defies it.
10
No. 2018AP1129.bh
¶104 Starting with the constitution, as already explained,
municipal court jurisdiction is limited to "actions and
proceedings arising under ordinances of the municipality in which
established." Wis. Const. art. VII, § 14. The straightforward
reading of the constitution is that we must actually be dealing
with an ordinance violation in order for the municipal court to
have the power to hear the case. Nothing about the phrase "arising
under" suggests mere invocation of an ordinance violation in the
charging document is sufficient to actually confer jurisdiction on
a municipal court.6 If there is a textual argument otherwise, the
majority does not make it. Nor does the majority cite a single
Wisconsin case in support of its interpretation of this provision
6 The majority latches onto the fact that the phrase "arising
under" is also found in federal law. It is hornbook law that
federal-question subject-matter jurisdiction is invoked when the
pleading party presents a colorable claim "arising under" the
Constitution or laws of the United States. See Arbaugh v. Y&H
Corp., 546 U.S. 500, 513 (2006) (citing 28 U.S.C. § 1331). While
the nature of this "well-pleaded complaint rule" is beyond dispute,
the majority treats that rule as though this closes the case. As
shown below, this is wrong.
11
No. 2018AP1129.bh
of the Wisconsin Constitution.7 That's because, so far as I can
tell, none exist.8
¶105 With no Wisconsin law to support its cause, the majority
seeks refuge in the law of federal jurisdiction. The majority
suggests subject-matter jurisdiction in federal court works in a
similar way to the rule it is announcing. Not even close. While
federal jurisdiction must be invoked in a pleading, it is most
7 A reader might take away from the majority that Ableman v.
Booth, a Wisconsin Supreme Court case from 1859, supports its view.
11 Wis. 517 (*498), 531-532 (*512) (1859). But the language quoted
is actually one justice's discussion of the phrase "arising under"
as it appears in the U.S. Constitution and as it relates to the
subject-matter jurisdiction of federal courts. Even then, nothing
in the quoted language supports the proposition that invocation of
federal jurisdiction is always sufficient to establish federal
jurisdiction——the lesson the majority suggests is the pertinent
takeaway. As explained below, this is plainly not the law in
federal courts.
8 As part of its "arising under" discussion, the majority
notes that "the city attorney is not required to allege or prove
that the defendant had no prior offenses" in determining liability
for a first-offense OWI in municipal court. Majority op., ¶30.
This is true, but irrelevant. And I do not take this to be a
separate argument relating to subject-matter jurisdiction. After
all, rendering judgment in a case necessarily includes prescribing
the punishment for an offense. Again, subject-matter jurisdiction
is "the power of a court to decide certain types of actions."
State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508
(citing United States v. Morton, 467 U.S. 822, 828 (1984)). And
it must be true that a court needs subject-matter jurisdiction
through sentencing to decide an action. But to the majority's
broader point, even if a prior countable offense remains
undisclosed throughout a municipal court proceeding, that silence
does not in and of itself mean that jurisdiction was ever had. As
Banks, Rohner, and Jensen make clear, a subsequent OWI offense
must be charged as such, and a municipal court lacks the power to
sentence someone convicted of a subsequent OWI offense precisely
because that charge cannot be an ordinance violation, no matter
how it is pled.
12
No. 2018AP1129.bh
certainly not established in all cases simply on the grounds that
it was pled.
¶106 Like municipal courts in Wisconsin, federal courts are
courts of limited subject-matter jurisdiction, empowered only to
hear cases as authorized by the U.S. Constitution and federal
statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). Thus, jurisdiction must be affirmatively alleged by
citation to a statutory basis or by sufficient factual allegations.
Id. Mere pleading of federal jurisdiction doesn't settle the
matter, however. Rather, federal jurisdiction is subject to
challenge throughout the proceeding. See Ins. Corp. of Ir., Ltd.
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)
("[N]o action of the parties can confer subject-matter
jurisdiction upon a federal court."); see also United States v.
Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-matter jurisdiction,
because it involves a court's power to hear a case, can never be
forfeited or waived."). Importantly, federal courts themselves
are obligated to independently ensure that jurisdiction is had at
all stages of a proceeding.9 Ruhrgas AG v. Marathon Oil Co., 526
9Given this independent obligation, any merits decision
entered by a federal court is deemed to include a factual
determination that subject-matter jurisdiction was established.
Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371,
376-77 (1940). This is so even if that determination is not
explicitly recognized in the court's decision. See 13D Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 3536
(3d ed. 2008) (discussing Travelers Indem. Co. v. Bailey, 557
U.S. 137, 152-53 (2009)). Because this finding is necessarily
included within a federal court decision, it is generally
recognized that any errors regarding the determination of
jurisdiction must be made through direct appeal, not collateral
attack. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
13
No. 2018AP1129.bh
U.S. 574, 583-84 (1999). Thus, even on appeal, a federal court
must dismiss any action upon discovery that jurisdiction is not
had or was not had by a court below. Id.
¶107 It is hard to overstate the obvious: the majority's
rule, which it presents as somehow supported by the law of federal
jurisdiction, stands instead in direct conflict. If mere
invocation is enough, how is it that a party can challenge
jurisdiction after it has been pled? What of the federal court's
independent obligation to ensure jurisdiction is had——again,
regardless of the invocation of subject-matter jurisdiction in a
pleading? How is it that a federal appeals court can dismiss the
case for lack of subject-matter jurisdiction years after the
pleading was filed? None of the cases the majority cites support
the proposition that federal jurisdiction is conclusively
established by virtue of its invocation in a pleading. It is not.
Federal jurisdiction is challengeable in federal court regardless
of the sufficiency of the pleading. The majority's rule granting
subject-matter jurisdiction through a pleading finds no support in
Wisconsin or federal law.
¶108 This lack of support notwithstanding, the majority aims
to align its conclusion here with several of the on-point Wisconsin
cases explained above. Across eight paragraphs, the majority
describes those cases and closes by simply reasserting that
subject-matter jurisdiction is had based on the allegations in the
citation. Majority op., ¶¶42-50. No effort is made to engage the
actual holdings or reasoning of the cases. The majority fails to
Guinee, 456 U.S. 694, 702 n.9 (1982).
14
No. 2018AP1129.bh
engage our cases because it cannot; its proposed rule runs right
over what those cases actually say.
¶109 For instance, the majority concludes the charging
document alone establishes subject-matter jurisdiction. But in
Banks, the defendant pled to a first-offense civil forfeiture, and
that fact made no difference when we determined that the entire
proceeding was "in effect a nullity" because the court commissioner
had no jurisdictional authority to hear what was in fact a second-
offense criminal OWI. 105 Wis. 2d at 36, 43. Jensen reached the
same conclusion: a judgment was entered on a civil forfeiture,
but later vacated because the incorrectly charged OWI meant the
entire action was "null and void" because the municipal court had
no subject-matter jurisdiction. 184 Wis. 2d at 93, 99. Neither
of these outcomes are consistent with, much less possible under,
the majority's new rule.
¶110 The majority also suggests, albeit indirectly, that the
prosecuting authority's knowledge of a prior offense might affect
a court's subject-matter jurisdiction. See Majority op., ¶¶14,
17, 44. But in Banks, we noted that the court commissioner entered
a civil forfeiture judgment "unaware" of the defendant's prior
offense. 105 Wis. 2d at 36. This lack of knowledge had no effect
on our conclusion that that judgment was null and void because
there was no subject-matter jurisdiction. Id. at 41, 43.
Similarly in Jensen, the municipal court was without subject-
matter jurisdiction even though the prior offense was
"unbeknownst" to the court at the time it entered the civil
forfeiture judgment. 184 Wis. 2d at 92-93, 98-99. And in Rohner,
15
No. 2018AP1129.bh
we held that the State has exclusive prosecutorial authority over
all subsequent OWI offenses, never once nuancing the rule with a
knowledge requirement. 108 Wis. 2d at 722; see also Booth, 370
Wis. 2d 595, ¶15 (reaffirming that holding). Once again, the
majority's subtle importation of a knowledge requirement stands at
direct odds with prior cases, and no effort is made to reconcile
the inconsistencies.
¶111 Along these lines, while the majority never quite says
so, it implies that Booth stands for the proposition that statutory
noncompliance equals a competence problem no matter what court
you're dealing with. As explained above, however, Booth was about
statutory noncompliance and loss of competence in circuit courts,
which have plenary subject-matter jurisdiction under our
constitution. Regardless of whether an OWI is incorrectly charged
as a first-offense ordinance violation or correctly charged as a
second-offense crime, a circuit court has subject-matter
jurisdiction to hear the action and enter a judgment on the matter.
A municipal court's subject-matter jurisdiction, on the other
hand, hinges entirely on whether the offense is actually an
ordinance violation. No "Booth adjustment," in the concurrence's
parlance, allows us to paper over the constitution's very different
grants of subject-matter jurisdiction to circuit and municipal
courts.
¶112 Collecting all of the above, if the majority is correct,
and pleading an OWI ordinance violation establishes subject-matter
jurisdiction, Banks and Jensen must be overruled. If an OWI
offense is considered correctly charged solely because a municipal
16
No. 2018AP1129.bh
prosecutor lacked knowledge of a prior offense, Rohner——and every
other case that explains and relies on the mandatory nature of the
OWI penalty structure, including Booth——needs to be modified. See
Banks, 105 Wis. 2d at 39-43; City of Lodi v. Hine, 107 Wis. 2d 118,
122-23, 318 N.W.2d 383 (1982); Rohner, 108 Wis. 2d at 717-18;
State v. Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852
N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24. Rather than
forthrightly acknowledge any of this, the majority simply
sidesteps any substantive engagement with these decisions.
¶113 It is difficult to figure out the consequences of a rule
that pleading conclusively establishes subject-matter
jurisdiction——a rule heretofore unknown in the law.10 What if the
The concurrence joins the majority's holding that pleading
10
establishes jurisdiction. Concurrence, ¶1. At the same time, it
proclaims that subject-matter jurisdiction depends not just on the
pleading, but also on "the evidence produced and the court's
disposition of the matter." Concurrence, ¶10 n.5. Subject-matter
jurisdiction, according to the concurrence, is established if
"what the complaint pleads, what the municipal court hears, what
judgment it renders, and what consequences it imposes" all
constitute an ordinance violation. Concurrence, ¶10. I have no
idea how both rules can be true. Either subject-matter
jurisdiction is established based on the pleading, and is not
challengeable afterwards, or not.
17
No. 2018AP1129.bh
city attorney finds out midway through the proceeding (i.e., post-
pleading) that a prior OWI conviction exists, the very sequence of
events in Banks (albeit before a court commissioner)? Can the
municipal court render judgment? Could someone bring a post-trial
appeal on similar grounds (again, post-pleading)?
Further, the concurrence's rule suffers from the same fatal
disease as the majority's. Our cases have repeatedly said subject-
matter jurisdiction can always be challenged, even after a case is
completed, and that a defect in subject-matter jurisdiction
renders a previously entered judgment null and void. E.g., Kohler
Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977) ("When a
court or other judicial body acts in excess of its jurisdiction,
its orders or judgments are void and may be challenged at any
time."). If the pleading, trial, judgment, and consequences
imposed effectually establish subject-matter jurisdiction, how can
that oft-repeated precedent allowing subject-matter jurisdiction
challenges after the fact still be true? This is not the way
subject-matter jurisdiction works in federal court, and this is
not the way we have ever described the subject-matter jurisdiction
of municipal courts or other judicial bodies with limited subject-
matter jurisdiction until today.
The concurrence also sets up a curious hypothetical regarding
a municipal court's judgment for disorderly conduct. The obvious
problem with this is that a person can validly be charged with a
disorderly conduct ordinance violation regardless of whether a
more serious charge is warranted, but cannot be given a citation
for first-offense OWI unless it is in fact a first-offense OWI. A
first-offense OWI citation for someone with a prior countable OWI
offense is a violation that does not exist at law. It is not and
cannot be an ordinance violation. This quirk of our OWI statutes
is unlike other areas of law. The concurrence finds this
"revolutionary"; but as our cases make clear, it is actually the
long-established way we have interpreted our OWI statutory scheme.
Finally, the concurrence suggests a "Booth adjustment" to our
prior cases is all the chiropractic correction needed to realign
those decisions. Concurrence, ¶19. But it does not really conduct
an accounting of those cases. Instead, its effort to synthesize
our body of cases rests wholly on its novel subject-matter
jurisdiction analysis. Booth was founded entirely on the plenary
subject-matter jurisdiction of circuit courts. Any effort to make
it do more than that here begs the question.
18
No. 2018AP1129.bh
¶114 No small part of the reason we are left guessing at
potential unintended consequences is the fact that none of the
briefing or arguments in this case went to the majority's holding
that a municipal court's subject-matter jurisdiction is
established by pleading an ordinance violation, or its suggestion
that the prosecuting authority's knowledge of a prior OWI offense
is relevant to that question. All of this innovation originates
solely from the majority's own inspiration.
¶115 So far as I can tell, the upshot of the majority is if
municipal courts accidentally or unintentionally violate the
constitution by deciding a case the constitution says they have no
power to decide, they haven't actually violated the constitution
at all. Good intentions notwithstanding, the constitution's
limited grant of power to municipal courts should be read to mean
what it says.
¶116 Under our long-established law, the straightforward
answer to the issue in this case is that a municipal court lacks
subject-matter jurisdiction over an OWI offense that was brought
as an ordinance violation when it should have been criminally
charged as a second-offense OWI in circuit court. The incorrectly
charged OWI here is therefore null and void. I respectfully
dissent.
¶117 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join this dissent.
19
No. 2018AP1129.bh
1