ARGUMENT: April 7, 2016
from an order of the Circuit Court for Eau Claire County,
L.C. 2014GF804 William M. Gabler, Sr., Judge.
the plaintiff-appellant, there were briefs by Douglas J.
Hoffer, assistant district attorney and Jenessa Stromberger,
assistant district attorney, and oral argument by Douglas J.
the defendant-respondent there was a brief by Diane C. Lowe
and Lowe Law, L.L.C., Eau Claire, and oral argument by Diane
was an amicus curiae brief by Sarah Schmeiser and Tracy Wood
& Associates, Madison, on behalf of Wisconsin Association
of Criminal Defense Lawyers.
REBECCA G. BRADLEY, J.
This case is before the court on the City of Eau Claire's
petition to bypass the court of appeals pursuant to Wis.Stat.
§ (Rule) 809.60 (2013-14). We are asked to determine whether
a circuit court lacks subject matter jurisdiction to enter a
civil forfeiture under a municipal ordinance for a
first-offense operating while intoxicated (OWI) that
factually should have been criminally charged as a
second-offense OWI due to an undiscovered prior countable
conviction. We conclude that a circuit court lacks
competency but retains subject matter jurisdiction when it
enters a civil forfeiture judgment for a first-offense OWI
that should have been criminally charged as a second-offense
OWI due to an undiscovered prior countable offense. Unlike
defects in subject matter jurisdiction, challenges to circuit
court competency may be forfeited. We conclude that Melissa
M. Booth Britton forfeited her right to challenge her 1992
first-offense OWI judgment by failing to timely raise it; as
a result, the circuit court erred when it granted her motion
to reopen and vacate her 1992 first-offense OWI civil
forfeiture judgment. Therefore, we reverse with directions to
the circuit court to reinstate Booth Britton's 1992
first-offense OWI judgment.
In 1990, Booth Britton was convicted in Minnesota of a
first-offense OWI. In 1992, the Eau Claire County Circuit
Court entered a civil forfeiture judgment against Booth
Britton for another first-offense OWI. The Eau Claire City
Attorney prosecuted Booth Britton in the 1992 OWI action. The
record does not indicate the reason why the 1992 offense was
charged as a first offense rather than a second offense.
However, the parties appear to agree that the countable 1990
Minnesota conviction was unknown to the City Attorney's
office when it prosecuted the 1992 OWI as a first
In 2014, Booth Britton filed a motion to reopen and vacate
her 1992 Eau Claire County first-offense OWI civil forfeiture
judgment because "it was [a] second OWI offense
improperly charged as a first offense." At the time
Booth Britton filed her motion to reopen and vacate the 1992
OWI, she had OWI (7th, 8th, or 9th) related charges pending
against her in Douglas County. She argued that because the
1992 OWI should have been charged as a criminal
second-offense OWI, the circuit court must void her 1992
judgment for lack of subject matter jurisdiction. The City
responded that any "[a]lleged defects in the 1992 action
may have implicated court competency, but did not implicate
subject matter jurisdiction." The City argued Booth
Britton forfeited any right to challenge the 1992 OWI civil
forfeiture judgment by failing to object in the 1992 circuit
The circuit court voided the 1992 conviction on subject
matter jurisdiction grounds. It relied on County of
Walworth v. Rohner, 108 Wis.2d 713, 324 N.W.2d 682
(1982), concluding that "[s]ince a second offense OWI
cannot be prosecuted as a civil action in Wisconsin, the
Court Commissioner did not have the proper jurisdiction in
the 1992 prosecution to render a civil judgment."
The City filed a notice of intent to appeal and both parties
filed briefs with the court of appeals. The City then filed a
petition to bypass the court of appeals under Wis.Stat.
§ (Rule) 809.60, which we granted.
STANDARD OF REVIEW
We independently review questions of subject matter
jurisdiction and competency. See Vill. of
Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273
Wis.2d 76, 681 N.W.2d 190. We also independently review
whether a party forfeits the right to challenge circuit court
Article VII, Section 8 of the Wisconsin Constitution
provides, in pertinent part: "Except as otherwise
provided by law, the circuit court shall have original
jurisdiction in all matters civil and criminal within this
state . . . ." Subject matter jurisdiction, established
by this section of our constitution, "refers to the
power of a court to decide certain types of actions."
See State v. Smith, 2005 WI 104, ¶18, 283
Wis.2d 57, 699 N.W.2d 508. Because this power is granted to
circuit courts by our constitution, it cannot be
"curtailed by state statute." Mikrut, 273
Wis.2d 76, ¶8; see also Eberhardy v. Circuit Court
for Wood Cty., 102 Wis.2d 539, 550, 307 N.W.2d 881
(1981) (noting that the constitutional language "only
allows for a legislative reallocation of jurisdiction from
the circuit court to another court"). However, "a
circuit court's ability to exercise the subject matter
jurisdiction vested in it by the constitution may be affected
by noncompliance with statutory requirements pertaining to
the invocation of that jurisdiction in individual
cases." Mikrut, 273 Wis.2d 76, ¶9.
Noncompliance with statutory mandates affects a court's
competency and "a court's 'competency, ' as
the term is understood in Wisconsin, is not jurisdictional at
all, but instead, is defined as 'the power of a court to
exercise its subject matter jurisdiction' in a particular
case." Smith, 283 Wis.2d 57, ¶18 (quoting
Kohler Co. v. Wixen, 204 Wis.2d 327, 337, 555 N.W.2d 640
Here, the parties disagree as to whether the mischarged OWI
affected the circuit court's subject matter jurisdiction
or its competency. The City argues that Booth Britton's
objections to her 1992 OWI conviction implicate court
competency rather than subject matter jurisdiction. The City
further asserts that Booth Britton forfeited her right to
challenge the circuit court's competency when she failed
to object to the OWI first offense in the 1992 circuit court
action. The City primarily relies on our 2004 decision in
Mikrut, 273 Wis.2d 76, ¶1, which stated that
"a circuit court is never without subject matter
jurisdiction." Booth Britton, in contrast, points to
Rohner, 108 Wis.2d at 722, a 1982 decision, which she argues
held that circuit courts do not have subject matter
jurisdiction over subsequent criminal OWI offenses that were
improperly charged and tried as civil first offenses. Booth
Britton asserts then that her 1992 OWI conviction is void
under Wis.Stat. § 806.07(1)(d). We reject Booth
In Rohner, the defendant, Paul Rohner, was cited for a
first-offense OWI in violation of a county ordinance despite
the fact that he had a prior countable OWI conviction.
Rohner, 108 Wis.2d at 715. Rohner contemporaneously objected
to the improper charge in the circuit court and argued that
the improper charging resulted in a lack of subject matter
jurisdiction because he should have been charged with a
second-offense OWI under state law rather than a
first-offense OWI under a municipal ordinance. Id.
The circuit court disagreed, reasoning that it had
"jurisdiction" because "the district attorney
had the prosecutorial discretion to charge under either the
ordinance violation or the state statute." Id.
We disagreed and reversed the circuit court.
In doing so, we reviewed the statutory language governing OWI
penalties in Wisconsin, prior cases interpreting that
language, legislative history, and the purpose of drunk
driving laws generally to conclude "that the legislature
intended a second offense for drunk driving to be within the
exclusive province of the state to prosecute as a
crime." Id. at 716-21. Therefore, under our OWI
statutes, a prosecutor has no discretion to charge what is
factually a second-offense OWI as a first-offense municipal
ordinance OWI. Id. at 721. As a result, we held that
"[b]ecause the complaint is to be dismissed for want of
subject-matter jurisdiction, there could not have been a
valid proceeding against Rohner." Id. at 722
Following Rohner, we decided Mikrut, which made great strides
in clarifying the concepts of circuit court competency and
subject matter jurisdiction. Mikrut, 273 Wis.2d 76,
¶¶1-3, 8-14. In Mikrut, the circuit court imposed
forfeitures on the defendant for multiple violations of
village ordinances. Id., ¶4. After the
defendant exhausted his direct appeal rights, he filed a
motion to vacate the circuit court's order and judgment,
claiming the Village's noncompliance with certain aspects
of the ordinances deprived the circuit court of subject
matter jurisdiction. Id., ¶6. We disagreed and
held that any defect caused by noncompliance with the
applicable ordinances affected court competency but not
subject matter jurisdiction. See id.,
¶¶2-3. We also concluded that challenges to court
competency are forfeited if not timely raised in the circuit
court. Id., ¶¶30, 38. Mikrut, however,
explained that even when a challenge to circuit court
competency is forfeited:
[A] reviewing court has inherent authority to disregard a
[forfeiture] and address a competency argument in appropriate
cases. Also, Wis.Stat. §§ 751.06 and 752.35 may
provide an avenue for discretionary review of an otherwise
[forfeited] competency challenge in extraordinary cases. In
addition, Wis.Stat. § 806.07(1)(h) may provide a vehicle
for collateral relief from judgment on the basis of an
otherwise [forfeited] competency argument- -again, however,
only in extraordinary cases.
Id., ¶38. We did not address Mikrut's
competency argument; instead, we held he forfeited his
challenge to court competency by failing to make a timely
objection in the circuit court. Id., ¶31.
In setting forth the law in Wisconsin on subject matter
jurisdiction and competency and differentiating between these
two related concepts, Mikrut relied on Article VII, Section 8
of the Wisconsin Constitution. We explained:
Circuit courts in Wisconsin are constitutional courts with
general original subject matter jurisdiction over "all
matters civil and criminal." Wis. Const. art. VII,
§ 8. Accordingly, a circuit court is never without
subject matter jurisdiction.
A circuit court's ability to exercise its subject matter
jurisdiction in individual cases, however, 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.
Mikrut, 273 Wis.2d 76, ¶¶1-2.
Thus, Rohner and Mikrut contain conflicting language. In the
former we determined that a circuit court lacked
subject matter jurisdiction in an action where the prosecutor
knowingly mischarged an OWI first offense that should have
been criminally charged as a second-offense OWI due to a
prior countable conviction. In the latter, we stated that a
circuit court's noncompliance with statutory mandates may
affect a circuit court's competency, but does not negate
subject matter jurisdiction.
We harmonize the conflicting language in Rohner and Mikrut
and determine that mischarging an OWI affects competency, not
subject matter jurisdiction. At the time we decided Rohner,
our case law did not clearly distinguish between the concepts
of subject matter jurisdiction and competency. See Xcel
Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8,
349 Wis.2d 234, 833 N.W.2d 665 (explaining that older case
law does not clearly differentiate between the two concepts).
Our decision in Mikrut further clarified Wisconsin's
jurisprudence on the distinct, but related concepts of
subject matter jurisdiction and competency. Although Rohner
referred to a lack of subject matter jurisdiction due to
noncompliance with state statutes, we clarified, in Mikrut,
that noncompliance with statutory mandates affects only a
court's competency and will never affect its subject
matter jurisdiction. As a result, 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. Accordingly, we
withdraw any language from Rohner and any other case that
Our decision to withdraw such language leaves intact
Rohner's holding "that the state has exclusive
jurisdiction over a second offense for drunk driving."
See Rohner, 108 Wis.2d at 716. Furthermore, nothing
in our decision today alters Rohner's confirmation of our
state's policy to strictly enforce drunk driving
laws. See id. at 721.
Finally, Booth Britton relies on State v. Bush, 2005
WI 103, ¶18, 283 Wis.2d 90, 699 N.W.2d 80, to assert
that the circuit court did not have subject matter
jurisdiction in the 1992 OWI action because "[i]f a
complaint fails to state an offense known at law, no matter
civil or criminal is before the court, resulting in the court
being without jurisdiction in the first instance." Booth
Britton specifically argues that the circuit court was
without subject matter jurisdiction because "a second
offense criminal OWI charged as a first offense civil OWI is
not an offense known at law." Put differently,
"[w]here the offense charged does not exist, the trial
court lacks [subject matter] jurisdiction." State v.
Christensen, 110 Wis.2d 538, 542, 329 N.W.2d 382 (1983).
Booth Britton's argument fails because first-offense and
second-offense OWIs are both offenses known at law as set
forth in our statutes. See Wis.Stat. §§ 346.63(1),
346.65(2)(am)1.-2. In addition, Booth Britton was charged
with a first-offense OWI, an offense that irrefutably exists
under our statutes. See Wis.Stat. §§ 346.63(1),
346.65(2)(am)1. The parties appear to agree that Booth
Britton was mischarged in 1992 because the City
Attorney's office failed to discover the prior
first-offense Minnesota OWI and because she failed to
disclose it. The fact she should have been charged with a
second-offense OWI, which would have increased the penalty
imposed when convicted in 1992, does not make her 1992
drunk-driving offense lawful conduct.
Booth Britton's argument fails for another reason as
well: Bush's conclusion that a court lacks subject matter
jurisdiction if a complaint fails to state an offense known
at law is not entirely accurate. See Bush, 283
Wis.2d 90, ¶18. Bush states: "If a complaint fails
to state an offense known at law, no matter civil or criminal
is before the court, resulting in the court being without
jurisdiction in the first instance." Id.,
¶18 (emphasis added). A court, however, cannot be
without jurisdiction "in the first instance"
because when "a complaint fails to state an offense
known at law, " id., the court must retain
subject matter jurisdiction to dispose of the matter.
We also clarify Bush's brief discussion of the interplay
between subject matter jurisdiction and facial challenges to
the constitutionality of statutes. Id., ¶17. In
Bush, where the constitutionality of a statute was
challenged, the court asserted that "[i]f a statute is
unconstitutional on its face, any action premised upon that
statute fails to present any civil or criminal matter in the
first instance" and "if the facial attack on the
statute were correct, the statute would be null and void, and
the court would be without the power to act under the
statute." Id. (emphasis added). In Bush, the
court construed a facial challenge to the constitutionality
of a statute as implicating a court's subject matter
jurisdiction: "We conclude that because Bush has
facially challenged the constitutionality of chapter 980, his
challenge goes to the subject matter jurisdiction of the
court." Id., ¶19. Bush ultimately
concluded that chapter 980 is not facially unconstitutional.
Id., ¶40. If, as Bush suggests, a facially
unconstitutional statute negates a court's subject matter
jurisdiction, the court would be constrained from ever ruling
on the constitutionality of the statute. However, "no
circuit court is without subject matter jurisdiction to
entertain actions of any nature whatsoever."
Mikrut, 273 Wis.2d 76, ¶8 (quoting Mueller
v. Brunn, 105 Wis.2d 171, 176, 313 N.W.2d 790
(1982)). Bush likely meant that if a statute is
facially unconstitutional, the court lacks the power to
enforce it because such statute would be void. We
withdraw any language from Bush purporting to impair the
ability of a court to exercise its subject matter
jurisdiction over challenges to the constitutionality of a
Based on the Wisconsin Constitution's broad grant of
subject matter jurisdiction to circuit courts as well as this
court's clarification of the principles of subject matter
jurisdiction and competency in Mikrut, we conclude that the
circuit court had subject matter jurisdiction over the 1992
OWI first-offense action. Therefore, the 1992 civil
forfeiture judgment is not void for lack of subject matter
jurisdiction under Wis.Stat. § 806.07(1)(d).
Having determined that the circuit court had subject matter
jurisdiction over the 1992 OWI, we next consider the circuit
court's competency to exercise its subject matter
jurisdiction. See Vill. of Elm Grove v. Brefka, 2013
WI 54, ¶16, 348 Wis.2d 282, 832 N.W.2d 121 ("The
circuit court's determination of competency refers to its
'ability to exercise the subject matter jurisdiction
vested in it' by Article VII, Section 8 of the Wisconsin
Constitution.") (quoting Mikrut, 273 Wis.2d 76,
As previously indicated, a circuit court may lose competency
to enter judgment in a particular case if statutory
requirements are not met. Mikrut, 273 Wis.2d 76,
¶9. We have explained that "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." Id. Statutory
noncompliance results in a lack of circuit court competency
"[o]nly when the failure to abide by a statutory mandate
is 'central to the statutory scheme' of which it is a
part . . . ." Id., ¶10 (citing State
v. Bollig, 222 Wis.2d 558, 567-68, 587 N.W.2d 908 (Ct.
App. 1998) and Arreola v. State, 199 Wis.2d 426,
441, 544 N.W.2d 611 (Ct. App. 1996)). Even when a court lacks
competency to proceed to judgment, a challenge to court
competency can be forfeited if not timely raised in the
circuit court. Mikrut, 273 Wis.2d 76, ¶38.
Here, the circuit court lacked competency to proceed to
judgment in Booth Britton's 1992 OWI case because
mischarging a second-offense OWI as a first-offense OWI
results in a failure to abide by mandatory OWI penalties
central to the escalating penalty scheme. Wisconsin Stat.
§ 346.63(1)(a) prohibits operation of a motor vehicle
while "[u]nder the influence of an intoxicant . . .
." Violations of § 346.63(1) are penalized under an
escalating penalty scale. Wis.Stat. § 346.65(2). A
first-offense OWI conviction is civil in nature and
punishable by forfeiture. See Wis.Stat. §
346.65(2)(am)1. Under the current OWI penalty scheme,
penalties for subsequent OWI convictions generally depend on
the total lifetime number of convictions under Wis.Stat.
§§ 940.09(1) and 940.25, plus countable
"suspensions, revocations, and other convictions"
under § 343.307(1). Wis.Stat. § 346.65(2)(am)2.-7.
At the time of Booth Britton's 1992 OWI in Eau Claire
County, the escalating penalty scheme was similar to the
current penalty scheme except that it counted "the total
number of suspensions, revocations and convictions"
under Wis.Stat. § 343.307(1) in a five-year period.
Compare Wis.Stat. § 346.65(2)(b)-(e) (1991-92) with
Wis.Stat. § 346.65(2)(am)2.-7.
The parties agree that Booth Britton's 1990 Minnesota
conviction was a prior countable OWI offense under
Wisconsin's OWI penalty scheme; therefore, her 1992
first-offense OWI in Eau Claire County was in fact a
second-offense OWI, and therefore should have been charged as
a criminal offense. The parties' analysis is correct. The
legislature's use of "shall" in Wisconsin's
OWI escalating penalty scheme, Wis.Stat. § 346.65(2), is
mandatory and, as a result, criminal penalties are required
of all OWI convictions following an OWI first-offense
conviction. See, e.g., Rohner, 108 Wis.2d at 717-18;
State v. Banks, 105 Wis.2d 32, 39, 313 N.W.2d 67
(1981). Furthermore, Wis.Stat. § 343.307(1)(d) requires
a court to count "[c]onvictions under the law of another
jurisdiction that prohibits a person from . . . using a motor
vehicle while intoxicated . . . as those or substantially
similar terms are used in that jurisdiction's laws."
A Minnesota OWI is a countable conviction under
Wisconsin's OWI penalty scheme. State v. White,
177 Wis.2d 121, 125, 501 N.W.2d 463 (Ct. App. 1993).
("Minnesota OWI convictions count as prior convictions
under sec. 346.65(2), Stats., because the Minnesota OWI
statute meets the prerequisites of sec. 343.307.").
The central concept underlying the mandatory OWI escalating
penalty scheme set forth in Wis.Stat. § 346.65(2)(am) is
exposure to progressively more severe penalties for each
subsequent OWI conviction as the number of countable
convictions increases. See State v. Williams, 2014
WI 64, ¶30, 355 Wis.2d 581, 852 N.W.2d 467. That
Wis.Stat. § 346.65(2)(am)2.-7. set forth escalating
penalties for OWI-related convictions is apparent from a
plain reading of these statutes. Compare, e.g., Wis.Stat.
§ 346.65(2)(am)3. (governing a third-offense OWI
conviction and imposing a minimum of 45 days of imprisonment
in the county jail), with Wis.Stat. § 346.65(2)(am)4.
(governing fourth-offense OWI convictions, generally, and
imposing a minimum of 60 days of imprisonment); see also
Williams, 355 Wis.2d 581, ¶32 ("Even a cursory
glance at the structure of Wis.Stat. § 346.65(2)(am)
reveals a pattern: the mandatory minimum sentences generally
increase with the number of OWIs."). In addition,
"[t]he statutory history of Wis.Stat. § 346.65(2)
reveals a general trend toward harsher mandatory minimum
sentences as the number of OWIs increases." Williams,
355 Wis.2d 581, ¶30. As we explained in Williams,
"the current statute makes eight different OWI-offense
distinctions and provides increasing penalties depending on
the number of OWIs the offender has committed and, in some
instances, on the temporal proximity of an offense to the
offender's previous OWI." Id. This
escalating penalty scheme is frustrated if an OWI is
mischarged as a civil first offense rather than a criminal
second offense due to an undiscovered prior countable
offense. Accordingly, failure to abide by the mandatory
penalty scheme in Booth Britton's 1992 OWI case resulted
in a loss of circuit court competency.
The lack of circuit court competency in this case does not
end the matter, however. Booth Britton did not timely object
to the circuit court's competency in the 1992 circuit
court action. In fact, she did not challenge her mischarged
1992 OWI until 2014. Booth Britton's considerable delay
in raising the issue suggests an attempt to play fast and
loose with the court system, which is something this court
frowns upon. See State v. Petty, 201 Wis.2d 337,
346-47, 548 N.W.2d 817 (1996). We conclude that Booth Britton
forfeited her ability to challenge the 1992 OWI first-offense
civil forfeiture judgment. We decline to exercise our
inherent authority to reach a challenge that Booth Britton
forfeited and then waited 22 years to raise.
We conclude that the circuit court, while retaining subject
matter jurisdiction over the matter, lacked competency to
enter a civil judgment of conviction for a first-offense OWI
that factually should have been charged criminally as a
second-offense OWI due to a prior countable OWI conviction.
Here, Booth Britton forfeited her challenge to the circuit
court's competency when she failed to raise any objection
to the first-offense OWI charge in the original 1992 action.
the Court.-The order of the circuit court is reversed,
and the cause is remanded.
SHIRLEY S. ABRAHAMSON, J. (dissenting).
Wisconsin Constitution provides that "[e]xcept as
otherwise provided by law, the circuit court shall have
original jurisdiction in all matters civil and criminal
within this state and such appellate jurisdiction in the
circuit as the legislature may prescribe by law." Wis.
Const. art. VII, § 8 (emphasis added).
The instant case is an example of the interplay between two
confusing doctrines this court has developed in interpreting
this constitutional provision: a circuit court's subject
matter jurisdiction and a circuit court's
In addressing whether an error in a proceeding results in a
circuit court's lack of subject matter jurisdiction or
lack of competency, the essential issue is which of two
competing principles is to govern: the validity of a judgment
or the finality of a judgment?
Labeling an error as resulting in a lack of subject matter
jurisdiction gives greater emphasis to the error and the
invalidity of the judgment. If the circuit court does not
have subject matter jurisdiction, the error renders the
judgment void. A void judgment is forever vulnerable
Labeling an error as resulting in a lack of circuit court
competency gives greater emphasis to the finality of the
judgment rather than any invalidity. A challenge to
competency may be forfeited. Thus, a judgment entered when
the circuit court lacks competency is not forever vulnerable
The problem in our case law attempting to distinguish between
a circuit court's subject matter jurisdiction and a
circuit court's competency is the failure to approach the
two in a sound, consistent, and analytical way. The cases are
confusing and imprecise in their use of the terms and in
their application of the terms to the facts of the
At issue in the instant case is a 22-year-old judgment of
conviction for first-offense civil OWI in violation of a
local ordinance prosecuted by the City of Eau Claire. The
error in the proceeding was that the defendant, Melissa Booth
Britton, had a prior Minnesota OWI conviction. "[T]he
State has exclusive jurisdiction over a second offense for
drunk driving." Walworth Cnty. v. Rohner, 108
Wis.2d 713, 716, 324 N.W.2d 682 (1982). Thus, Booth Britton
should have been prosecuted by the State for violation of a
criminal statute, second-offense criminal OWI, not by Eau
Claire for first-offense civil OWI for a violation of a local
The OWI statutes create progressive penalties for successive
OWI offenses. "[T]he legislature's intent in
drafting [the progressive penalty scheme] was to require
criminal proceedings and penalties for a second drunk driving
offense within a five-year period, " and the language of
the statutes "demonstrates that the legislature intended
that a second offense for drunk driving be exclusively within
the province of the state." Rohner, 108 Wis.2d
at 717-18 (second emphasis added).
The question the majority opinion presents in the instant
case is whether the circuit court lacked subject matter
jurisdiction or competency in convicting Booth Britton of
first-offense civil OWI. The answer to this question raises
significant public policy issues.
The interests at stake in the instant case regarding how to
characterize the error are governmental and societal.
On the one hand, the public policy requiring a second (or
subsequent) OWI offense be prosecuted as a crime by the
State, as well as the policy favoring the validity of
judgments, would be advanced by labeling the error in the
instant case as a lack of subject matter jurisdiction; the
22-year-old judgment of conviction would be void.
On the other hand, the public policy favoring the finality of
judgments would be advanced by labeling the error in the
instant case as a lack of circuit court competency. If the
error is labeled as a lack of circuit court competency, the
defendant has forfeited her challenge to the judgment and
brought her motion for relief from the judgment under
Wis.Stat. § 806.07 too late; the 22-year-old judgment of
conviction would stand.
I write separately to address two areas of the law raised by
the instant case:
I. The instant case is a motion based on Wis.Stat. §
806.07 and should be addressed as a motion under that
II. The instant case involves
A. interpreting and applying Article VII, Section 8 of the
Wisconsin Constitution; and
B. analyzing the case law defining and differentiating
between circuit court "subject matter jurisdiction"
and circuit court "competency."
case law is confusing and based on misunderstandings.
When I apply precedent in addressing these two areas of the
law, I conclude that the 22-year-old first-offense civil OWI
judgment against Booth Britton is void under Wis.Stat. §
806.07 because the circuit court did not have subject matter
jurisdiction under the Wisconsin Constitution.
Unfortunately, the majority opinion rewrites precedent and