July 13, 2016 – A woman with seventh, eighth, and ninth operating while intoxicated (OWI) charges pending against her challenged a first-offense OWI she received in 1992, arguing the circuit court back then lacked subject matter jurisdiction.
Melissa Booth Britton argued that the first-offense OWI she received in 1992 was improperly charged because it should have been charged as a second offense.
Because it was improperly charged, the court lacked subject matter jurisdiction, Booth Britton argued in a motion, filed in 2014, to reopen and vacate the 1992 OWI civil forfeiture. The Eau Claire city attorney prosecuting Booth Britton’s 1992 case was not aware that Booth Britton had received a drunk driving conviction in Minnesota in 1990.
In 2014, the Eau Claire County Circuit Court reopened the case and vacated the 1992 OWI judgment, concluding the circuit court in 1992 lacked subject matter jurisdiction.
The court relied on a 1982 supreme court decision, which held that a second offense OWI “cannot be prosecuted as a civil action in Wisconsin.” The case bypassed the appeals court and Wisconsin Supreme Court recently reversed.
In City of Eau Claire v. Booth Britton, 2016 WI 65 (July 12, 2016), a 5-2 majority held that a circuit court “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.”
The majority also ruled that the court lacked competency to hear the case in 1992, but Booth Britton waived her right to challenge competency by not raising it then.
Subject Matter Jurisdiction and Competency
Subject matter jurisdiction, the majority noted, refers to the power of a court to hear certain types of cases. On the other hand, “competency” is not jurisdictional; it is the power to exercise subject matter jurisdiction in a particular case.
In Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982), a similar fact pattern emerged. The defendant was charged with a first-offense OWI but he had a prior countable OWI conviction. He said the court lacked subject matter jurisdiction.
The supreme court ultimately decided that the circuit court did not have subject matter jurisdiction to prosecute the improperly charged crime.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
But Justice Rebecca Bradley, writing for the majority, noted that the supreme court decided another case in 2004 – Vill. Of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis.2d 76, 681 N.W.2d 190 – concluding that noncompliance with statutory mandates affect competency, but noncompliance 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,” wrote Justice R. Bradley, noting that recent appeals court decisions involving mischarged first-offense OWIs have reached different results because of the Mikrut-Rohner conflict.
The deficiency in Rohner was really a loss of circuit court competency, Justice R. Bradley explained. “Accordingly, we withdraw any language from Rohner and any other case that suggests otherwise,” she wrote. R. Bradley also highlighted language in Mikrut, suggesting that circuit courts are never without subject matter jurisdiction.
The majority noted that courts can lose competency when entering judgments if statutory requirements are not met, but a competency challenge must be timely raised.
“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,” Justice R. Bradley wrote.
But Booth Britton did not object until 22 years after judgment. “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,” R. Bradley wrote.
Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that “the circuit court did not have subject matter jurisdiction.”
She agreed that the clarification and development on the distinction between subject matter jurisdiction and competency is needed, but the majority did not provide it.
“Unfortunately, the majority opinion rewrites precedent and fails to clarify or develop the law,” Justice Abrahamson wrote.
Abrahamson said the real question of whether a court lacks subject matter jurisdiction or competency is whether an error voids the judgment.
“If the court does not have subject matter jurisdiction, the error renders the judgment void. A void judgment is forever vulnerable to attack,” she wrote. “[A] judgment entered when the circuit court lacks competency is not forever vulnerable to attack.”
She said Booth Britton should have been prosecuted by the state, which has exclusive jurisdiction over second and subsequent OWI offenses, not the city.
She also said judgments premised on offenses “not known at law” are void, citing a 2005 supreme court decision the majority concluded was “not entirely accurate.”
“True, a first-offense civil OWI is proscribed by the statutes,” she wrote. “The facts upon which Booth Britton was charged and found guilty, however, do no comport with proscribed civil offense.”
Admonishing the majority’s suggestion that circuit courts are never without subject matter jurisdiction, Abrahamson pointed to the Wisconsin Constitution.
“Properly interpreted, Article VII, Section 8 allows the legislature to divest circuit courts of subject matter jurisdiction so long as the legislature places the power to hear those cases in other courts within the unified court system,” she wrote.