A court competency determination can win or lose a case without the court ever getting to the substantive merits. Competency is different than subject matter jurisdiction. Competency refers to whether a court can adjudicate the specific case before it rather than whether it can adjudicate the kind of case before it. A court loses competency to proceed when a party fails to fulfill a mandatory statutory requirement that is central to the statutory scheme. Statutory requirements in almost every area of law can potentially affect a court’s competency.1 Consequently, all attorneys, no matter their area of practice, should understand Wisconsin’s court competency doctrine.
The Wisconsin Supreme Court recently issued three opinions applying this doctrine.2 These three opinions, which applied the doctrine in cases involving statutory time limits, the failure to name a necessary party, and the failure to file a claim in the proper forum, provide guidance useful in various other court competency contexts. This article summarizes the decisions, provides background on the doctrine, and describes how attorneys can apply the doctrine to their clients’ advantage.
The Wisconsin Constitution grants circuit courts broad subject matter jurisdiction:
“Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.…”3
This constitutional provision provides circuit courts with complete subject matter jurisdiction over all civil and criminal matters. The legislature may not divest the circuit court of its constitutional grant of complete jurisdiction.4 Circuit court jurisdiction is subject, however, to appellate and supervisory powers reserved by the Wisconsin Constitution to the Wisconsin Court of Appeals and the Wisconsin Supreme Court.5 Accordingly, when a party fails to fulfill a mandatory statutory requirement, a circuit court does not lose subject matter jurisdiction but loses competency to exercise its subject matter jurisdiction.
Wisconsin courts have not always rigidly distinguished between subject matter jurisdiction and competency. Before development of the case law distinction between subject matter jurisdiction and competency, determining whether noncompliance with a statutory requirement implicated a court’s subject matter jurisdiction was sometimes limited to determining if a statutory requirement was mandatory or directory.6 The essential focus, however, is not the terminology used to describe the court’s power to proceed in a particular case but rather the effect of noncompliance with a statutory requirement on the circuit court’s power to proceed.7 The distinction between subject matter jurisdiction and competency is more than semantics. Unlike subject matter jurisdiction challenges, competency challenges can be waived if not raised before the circuit court.
Wisconsin’s court competency doctrine was significantly reshaped by Village of Trempeleau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190. The Mikrut court described the existing doctrine as “inconsistent,” overruled and abrogated numerous prior court competency appellate decisions, and created the following rules for court competency challenges:8
The common-law waiver rule applies to challenges to court competency unless the loss of competency results from noncompliance with a statutory time limit.9
The failure to raise a competency challenge in a notice of appearance does not waive the right to object to a lack of competency.
Most challenges to circuit court competency must be raised before the circuit court to preserve the challenge for appellate review.
Motions for relief based on a circuit court’s lack of competency are subject to time limitations of the statute governing relief from judgment.
The doctrine continues to evolve, but some jurists believe the post-Mikrut court competency doctrine is “confusing.”10 Recent Wisconsin Supreme Court decisions provide additional guidance in applying the doctrine.
Statutory Time Limits – Village of Elm Grove v. Brefka
Failure to meet a statutory time limit results in a loss of competency if the time limit is both mandatory and central to the statutory scheme. Determining whether a statutory time limit is mandatory and central to the statutory scheme requires examining the statute. In Village of Elm Grove v. Brefka,the Wisconsin Supreme Court determined that a defendant’s failure to meet the 10-day deadline to request a refusal hearing deprives a circuit court of competency to proceed.11
com douglashoffer gmail Douglas J. Hoffer, Marquette 2010, is an Eau Claire Assistant City Attorney. He was the attorney of record for the Village of Elm Grove in front of the Wisconsin Supreme Court in Village of Elm Grove v. Brefka. The author thanks Stephen Nick, Steve Bohrer, and Janeen Whelihan for their feedback during the writing process. He can be reached at com douglashoffer gmail gmail douglashoffer com.
The Elm Grove Police Department arrested Richard Brefka for drunk driving.12 After his arrest, Brefka refused to submit to a chemical breath test. Elm Grove charged Brefka with an implied consent violation, more commonly known as a “refusal.” Wisconsin’s implied consent statute, Wis. Stat. section 343.305, provides that refusals result in motor vehicle operating-privilege revocations and other consequences.13 A defendant may challenge the revocation if he or she requests a “refusal hearing” within 10 days after being served with the notice of intent to revoke. The implied consent statute states that if a person fails to timely request a refusal hearing, the court “shall” proceed with revocation and other consequences.
Brefka filed his request for a refusal hearing after the 10-day deadline passed. The Village of Elm Grove moved to strike the refusal hearing request as untimely. After missing the deadline, Brefka hired an attorney and filed a motion to extend the 10-day deadline. Brefka argued that the rules of civil procedure allow deadline extensions, motions to reopen, and other relief based on excusable neglect. Furthermore, Brefka argued, the Wisconsin rules of civil procedure apply unless a different procedure is prescribed by statute, and all he wanted was an opportunity to have his day in court.14
The Wisconsin Supreme Court, reaching the same conclusion as the lower courts, determined that Brefka’s failure to timely request a refusal hearing deprived the circuit court of competency to proceed. The 10-day deadline is both mandatory and central to the statutory scheme. The supreme court evaluated the following factors to determine whether the deadline was mandatory: 1) whether the legislature stated the consequence of noncompliance; 2) consequences resulting from one construction or another; 3) the nature of the statute; 4) the evil to be remedied; and 5) the general object sought to be accomplished. The supreme court first articulated these factors in Karow v. Milwaukee County Civil Service Commission.15
The supreme court determined that the statute set forth a penalty for noncompliance with the 10-day time limit by requiring courts to revoke motor vehicle operating privileges based on untimely hearing requests. Additionally, the court concluded that interpreting the 10-day time limit to request a hearing as directory would contradict the statute’s legislative purposes. The court pointed out that “the clear policy of the statute is to facilitate the identification of drunken drivers and their removal from the highways,” and that the statute’s purpose is “to get drunk drivers off the road as expeditiously as possible and with as little possible disruption of the court’s calendar.”16 The statute’s legislative purposes demonstrated that the time limit was mandatory.
The failure to meet a mandatory statutory time limit may not always result in a court’s loss of competency to proceed. Competency is only lost if the time limit is central to the statutory scheme. The Brefka courtdetermined that allowing the 10-day time limit to be extended would prevent the accomplishment of the statute’s purposes – quickly removing drunk drivers from the roadways without disrupting the court’s calendar – and thus the 10-day time limit was central to the statutory scheme.
Almost every consideration in Brefka favored a loss of competency. The statute expressly requires timely hearing requests and provides a penalty for noncompliance. Extending the deadline would not serve the statute’s purpose. Lastly, permitting the circuit court to proceed would only serve to weaken drunk driving laws. Not every court competency case, however, is as straightforward as Brefka.
Failure to Bring an Action in the Proper Forum and Waiver – State v. Starks
Failure to bring an action in the proper forum may result in a court’s lack of competency to proceed. Additionally, litigants must raise court competency challenges at the circuit court level to preserve the challenge for appellate review. State v. Starks illustrates both points. In Starks, the Wisconsin Supreme Court determined that a defendant’s erroneous decision to file a motion claiming ineffective assistance of appellate counsel with the circuit court deprived the court of competency.17 Starks also held that the state forfeited the right to challenge court competency by failing to raise the issue at the circuit court level.18
The state charged Tramell Starks with first-degree intentional homicide as a party to a crime and possession of a firearm by a felon. A jury convicted Starks of the lesser-included offense of reckless homicide and the possession-of-a-firearm-by-a-felon charge. The court of appeals upheld Starks’ convictions on direct appeal. Starks next filed a motion with the circuit court alleging that his appellate attorney was ineffective for failing to raise ineffective-assistance-of-trial-counsel claims. The circuit court denied Starks’ motion on the merits, and the court of appeals affirmed the circuit court decision.
The supreme court concluded that Starks improperly cast his claim of ineffective assistance of appellate counsel as a claim of ineffective assistance of postconviction counsel, thus depriving the court of competency to proceed.19 Starks’ mistake was more than a technical error. Litigants must file ineffective-assistance-of-appellate-counsel claims using a petition for a writ of habeas corpus with the court of appeals. Procedural requirements in Wis. Stat. section 974.06 do not provide a mechanism for raising ineffective-assistance-of-appellate-counsel claims. Consequently, Starks filed his motion in the wrong forum. Because Starks did not comply with the specific statutory requirements, the circuit court was deprived of competency.
The state waived a court competency argument, however, by failing to challenge court competency at the circuit court level. The Starks court pointed out that parties generally cannot waive jurisdictional defects, but parties can waive a competency challenge by failing to raise the issue in circuit court. Additionally, the state failed to brief the competency issue. Accordingly, the supreme court determined that it would be improper to dismiss the claim.
The supreme court’s conclusion that Starks’ failure resulted in a loss of competency rather than a loss of jurisdiction was not unanimous. Justice Bradley authored a dissenting opinion, joined by Chief Justice Abrahamson and Justice Crooks, in which she asserted that Starks’ erroneous filing may have resulted in a loss of jurisdiction rather than competency. Because jurisdiction cannot be conferred by mistake or stipulation, the dissent argued, supplemental briefs should have been ordered addressing the issue.
Starks is a useful reminder to raise court competency arguments at the circuit court level. Starks also illustrates that the debate regarding whether the failure to meet certain statutory requirements implicates subject matter jurisdiction rather than competency is far from settled. Attorneys should consider this ongoing debate when framing their court competency arguments.
Failure to Name a Necessary Party – Xcel Energy Servs. Inc. v. LIRC
Failure to name a necessary party may result in a court losing competency to proceed. Xcel Energy Servs. Inc. v. LIRC illustrates the importance of examining whether a statutory requirement was met in determining whether court competency is implicated. In Xcel Energy Servs.,the Wisconsin Supreme Court determined that the failure to name an employer’s insurer did not constitute a failure to name an “adverse party” as required by Wis. Stat. section 102.23, and thus the court was not deprived of competency to proceed.20
An Xcel employee was injured on duty and eventually applied for Social Security benefits and permanent partial disability.21 The employee appealed a Department of Workforce Development decision to the Labor and Industry Review Commission (LIRC). LIRC concluded that the employee made a prima facie showing for permanent total disability. Consequently, LIRC concluded that the employee was permanently and totally disabled and that Xcel and its insurer must pay benefits in accordance with that determination.
Xcel next filed a summons and complaint seeking judicial review of LIRC’s determination.22 LIRC argued that the circuit court lacked competency to consider Xcel’s complaint because Xcel failed to name an adverse party, its insurer, as required by Wis. Stat. section 102.23(1)(a). The circuit court rejected LIRC’s competency argument but affirmed LIRC’s order granting the employee permanent total disability benefits. The court of appeals concluded that Xcel’s insurer qualified as an adverse party based on definitions found in case law and thus reversed the circuit court decision based on the circuit court’s loss of competency.23
The supreme court determined that Wis. Stat. section 102.23(1)(a) constitutes an exclusive statutory scheme for parties seeking judicial review of an order or award granting or denying worker’s compensation benefits.24 The supreme court concluded that compliance with the statute’s adverse party requirement is central to the statutory scheme. Thus the failure to name an adverse party as a defendant under the statute “deprives the circuit court of competency and requires dismissal of the complaint.”25
The supreme court disagreed, however, with the court of appeals’ holding that Xcel’s insurer was an adverse party and concluded that the statutory requirement was not violated. Consequently, the circuit court was not deprived of competency.
Using the Court Competency Doctrine to Your Advantage
Attorneys arguing a loss of competency must establish three things: 1) the statute includes a mandatory requirement; 2) the statutory mandate is central to the statutory scheme; and 3) the statutory mandate was not fulfilled. Demonstrating that a requirement is mandatory and demonstrating that a requirement is central to the statutory scheme both require examining the statute’s purpose. Consequently, significant overlap between these two steps often exists.
First, the statutory requirement must be mandatory. Attorneys should first look at the statute’s language. “Shall” generally is construed as mandatory, and “may” is generally construed as directory. Consequently, if the statutory language includes “shall” or “may,” the inquiry will likely end unless a party demonstrates that the legislature’s clear intent was a different construction. Additionally, to bolster their arguments, advocates should use the Karow factors: the consequences of each statutory construction; the nature of the statute; the evil to be remedied; and the general object sought to be accomplished.
Second, the statutory mandate must be central to the statutory scheme. In Brefka, the supreme court concluded that extending the 10-day limit to request a hearing would change the precise penalty set forth in the statute, and thus the requirement was central to the statutory scheme. Attorneys can demonstrate a requirement is central to the statutory scheme by establishing that the statute’s purposes cannot be accomplished without adherence to the requirement.
Third, the statutory mandate must have not been fulfilled. Attorneys should not assume that a statutory mandate was or was not fulfilled. Determining compliance with statutory requirements may involve analyzing several variables. For example, determining statutory time limit compliance may depend on when the clock starts, whether weekends and holidays count, whether the time period in question constitutes a time limit, whether rules of civil procedure apply and provide relief, and various other factors. Xcel demonstrates the importance of thoughtfully examining this step.
In addition to the three steps previously discussed, courts may also evaluate policy considerations. Conflicting policy considerations affect the court competency doctrine. On one hand, statutory prescriptions must be unbending to be meaningful.26 Allowing litigants to disregard statutory requirements without serious consequences turns statutory mandates into mere suggestions.
On the other hand, litigants should not be defeated in their redress of grievances by a confusing maze of statutes and judicial opinions.27 The judicial system strives to give injured parties their day in court, and rigidly enforcing statutory requirements may conflict with this objective. Tension exists between these two policy considerations, and attorneys should understand which policy considerations are furthered by their preferred outcome.
Applying the court competency doctrine is sometimes difficult. Nevertheless, because a court competency determination can result in winning or losing a case without getting to the substantive merits, prudent attorneys should endeavor to understand the doctrine. The body of law continues to evolve, and attorneys who fail to understand it put their clients at risk. Recent case law provides additional guidance that attorneys can use in making competency arguments. This article does not contain an exhaustive list of court competency cases, so attorneys should look to the particular statute and Wisconsin’s case law for additional guidance.
1 See Bench and Bar Experiences, Court Comptency to Act in Probate & Children’s Court Actions, (July 10, 2012).
2 See Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121; Xcel Energy Servs. Inc. v. LIRC, 2013 WI 64, 349 Wis. 2d 234, 833 N.W.2d 665; State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146.
3 Wis. Const. art. VII, § 8.
4 Matter of Guardianship of Eberhardy, 102 Wis. 2d, 539, 548-53, 307 N.W.2d 881 (1981).
6 State v. Rosen, 72 Wis. 2d 200, 240 N.W.2d 168 (1976).
7 Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 706 n.1, 495 N.W.2d 660 (1993).
8 Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 3, 18, 23, 25, 273 Wis. 2d 76, 681 N.W.2d 190.
9 But see Stern v. WERC, 2006 WI App 193, ¶¶ 22-33, 296 Wis. 2d 306, 722 N.W.2d 594 (holding that time limit can be waived).
10 Xcel, 2013 WI 64, ¶¶ 62-65, 349 Wis. 2d 234 (Abrahamson, C.J., concurring).
11 Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121.
15 82 Wis. 2d 565, 263 N.W.2d 214 (1978).
16 Brefka, 2013 WI 54, ¶ 31, 348 Wis. 2d 282.
17 State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146.
20 Xcel Energy Servs. Inc. v. LIRC, 2013 WI 64, 349 Wis. 2d 234, 833 N.W.2d 665.
25 Id. ¶ 29.
26 Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 707, 495 N.W.2d 660 (1993).
27 Xcel, 2013 WI 64, ¶ 70, 349 Wis. 2d 234 (Abrahamson, C.J., concurring).