City of Eau Claire v. Melissa M. Booth

2016 WI 65

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP869
COMPLETE TITLE: City of Eau Claire,
Plaintiff-Appellant,
v.
Melissa M. Booth, n/k/a Melissa M. Booth
Britton,
Defendant-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 7, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: William M. Gabler, Sr.

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For 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.
Hoffer.

For the defendant-respondent there was a brief by Diane C.
Lowe and Lowe Law, L.L.C., Eau Claire, and oral argument by
Diane C. Lowe.

There was an amicus curiae brief by Sarah Schmeiser and
Tracy Wood & Associates, Madison, on behalf of Wisconsin
Association of Criminal Defense Lawyers.
 2016 WI 65
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP869
(L.C. 2014GF804)

STATE OF WISCONSIN : IN SUPREME COURT

City of Eau Claire,

Plaintiff-Appellant, FILED
v. JUL 12, 2016
Melissa M. Booth, n/k/a Melissa M. Booth Britton, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.

APPEAL from an order of the Circuit Court for Eau Claire

County, William M. Gabler, Sr., Judge. Reversed and cause

remanded.

¶1 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).1 We

are asked to determine whether a circuit court lacks subject

matter jurisdiction to enter a civil forfeiture under a

1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated. Although this
case involves a 1992 violation, no changes to the applicable
statutes are dispositive of the issue we address.
 No. 2015AP869

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.2 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.

I. BACKGROUND

¶2 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

2
The petition to bypass states an additional issue: "Is a
municipality legally precluded from pursuing a civil OWI
citation if the defendant could also be charged criminally?"
The briefs and oral argument, however, did not sufficiently
address this issue. As a result, we do not consider it.

2
 No. 2015AP869

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 offense.3

¶3 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 court action.

¶4 The circuit court voided the 1992 conviction on

subject matter jurisdiction grounds. It relied on County of

3
The only remaining record related to the 1992 OWI is the
citation Booth Britton received from a City of Eau Claire police
officer. This citation indicates that Booth Britton violated
City of Eau Claire Ordinance 10.04, which adopted Wis. Stat.
§ 346.63(1)(a).

3
 No. 2015AP869

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."

¶5 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.

II. STANDARD OF REVIEW

¶6 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 competency. Id.

III. ANALYSIS

¶7 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
4
 No. 2015AP869

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 (1996)).

¶8 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
5
 No. 2015AP869

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).4 We reject

Booth Britton's argument.

A

¶9 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

4
Wisconsin Stat. § 806.07 is titled: "Relief from judgment
or order." This section "attempts to achieve a balance between
fairness in the resolution of disputes and the policy favoring
the finality of judgments." Edland v. Wis. Physicians Serv.
Ins. Corp., 210 Wis. 2d 638, 644, 563 N.W.2d 519 (1997).
Section (1)(d) allows for relief "from a judgment, order or
stipulation" "on motion and upon such terms as are just" if
"[t]he judgment is void." Wis. Stat. § 806.07(1)(d).

In her supplemental brief to this court, Booth Britton
appears to raise an alternative argument for relief based on
Wis. Stat. § 806.07(1)(h), which allows for consideration of
"[a]ny other reasons justifying relief from the operation of the
judgment." This subsection is to be used sparingly in
extraordinary cases and any motion for relief based on
§ 806.07(1)(h) must be brought within a reasonable time period.
Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶¶35-36, 273
Wis. 2d 76, 681 N.W.2d 190. We do not address whether Booth
Britton meets the legal standards to obtain relief under
§ 806.07(1)(h) because she failed to request relief under this
subsection in her motion to vacate her 1992 conviction. See
id., ¶37.

6
 No. 2015AP869

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.

¶10 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 (emphasis

added).

¶11 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,
7
 No. 2015AP869

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 forfeited5 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.

5
Although Mikrut used the term "waiver" instead of
"forfeiture," we have since clarified that "[a]lthough cases
sometimes use the words 'forfeiture' and 'waiver'
interchangeably, the two words embody very different legal
concepts. 'Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right.'" State v. Ndina, 2009 WI 21,
¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)). Properly construed, although
Mikrut says "waiver" it means "forfeiture."

8
 No. 2015AP869

¶12 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.
¶13 Thus, Rohner and Mikrut contain conflicting language.

In the former6 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

6
There are two notable factual differences between Rohner
and this case. First, Rohner did not appear to involve an
unknown out-of-state prior OWI conviction. Cty. of Walworth v.
Rohner, 108 Wis. 2d 713, 715, 324 N.W.2d 682 (1982). Second,
the defendant in Rohner filed a motion to dismiss the improperly
charged first-offense OWI in a timely manner by raising it in
the original circuit court action instead of waiting 22 years
and many OWI convictions later. See id.

9
 No. 2015AP869

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.7

¶14 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

7
As a result of the conflicting language in Mikrut and
Rohner, the court of appeals has reached different results in a
series of recent unpublished opinions involving mischarged
first-offense OWIs. Compare, e.g., State v. Navrestad, No.
2014AP2273, unpublished slip op. (Wis. Ct. App. July 2, 2015)
(following Mikrut and determining that the circuit court lacked
competency) with City of Stevens Point v. Lowery, No. 2014AP742,
unpublished slip op. (Wis. Ct. App. Feb. 5, 2015) (following
Rohner and determining that the circuit court lacked subject
matter jurisdiction) and Clark Cty. v. Potts, No. 2012AP2001,
unpublished slip op. (Wis. Ct. App. March 28, 2013) (same).

10
 No. 2015AP869

subject matter jurisdiction.8 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

suggests otherwise.

¶15 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.9 See id. at 721.

¶16 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

8
The fact that Mikrut did not cite to Rohner in clarifying
the concepts of subject matter jurisdiction and court competency
does not impact our decision. See Mikrut, 273 Wis. 2d 76, ¶42
(Abrahamson, C.J., concurring) (recognizing that Mikrut "cast[]
great doubt" on many prior opinions not specifically discussed
by the opinion).
9
Although under our decision today Booth Britton's 1992
undercharged OWI first-offense conviction stands, we note that
affirming the circuit court's decision to vacate the 1992
conviction with prejudice would do nothing to further our
state's policy of strictly enforcing OWI laws. Instead,
affirming the circuit court's dismissal with prejudice would
erase the 1992 conviction, prevent it from being counted in
subsequent OWI prosecutions, and forever prohibit the State from
correctly charging Booth Britton for the 1992 OWI offense.

11
 No. 2015AP869

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.

¶17 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
12
 No. 2015AP869

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.

¶18 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
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 No. 2015AP869

(quoting Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790

(1982)).10 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 statute.

¶19 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

10
We recognize that the broad constitutional grant of
subject matter jurisdiction to the circuit court is subject to
the phrase "[e]xcept as otherwise provided by law." See Wis.
Const. art. VII, § 8. This phrase, however,

only allows for a legislative reallocation of
jurisdiction from the circuit court to another court.
It does not permit the legislature to divest the
constitutional grant of jurisdiction from the unified
court system; and under the unified system created by
the amendment of 1977, original jurisdiction is vested
wholly in the circuit court.

Eberhardy v. Circuit Court for Wood Cty., 102 Wis. 2d 539, 550,
307 N.W.2d 881 (1981). Put differently, this limiting phrase
forecloses the legislature from enacting a statute that would
circumscribe the broad constitutional grant of subject matter
jurisdiction to circuit courts. See Xcel Energy Servs., Inc. v.
LIRC, 2013 WI 64, ¶27, 349 Wis. 2d 234, 833 N.W.2d 665; Mikrut,
273 Wis. 2d 76, ¶8; Eberhardy, 102 Wis. 2d at 549-50.

14
 No. 2015AP869

judgment is not void for lack of subject matter jurisdiction

under Wis. Stat. § 806.07(1)(d).

B

¶20 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, ¶9).

¶21 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

15
 No. 2015AP869

court competency can be forfeited if not timely raised in the

circuit court. Mikrut, 273 Wis. 2d 76, ¶38.

¶22 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)1.11 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.

11
The same was true of first-offense OWIs when Booth
Britton was cited for her 1992 OWI in Eau Claire County. See
Wis. Stat. § 346.65(2)(a) (1991-92).

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 No. 2015AP869

¶23 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.").

¶24 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.
17
 No. 2015AP869

§ 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.

¶25 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
18
 No. 2015AP869

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.

IV. CONCLUSION

¶26 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.

By the Court.—The order of the circuit court is reversed,

and the cause is remanded.

19
 No. 2015AP869.ssa

¶27 SHIRLEY S. ABRAHAMSON, J. (dissenting). The

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).

¶28 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 competency.1

¶29 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

1
See State v. Bush, 2005 WI 103, ¶16, 283 Wis. 2d 90, 699
N.W.2d 80 ("[T]he jurisprudence concerning subject matter
jurisdiction and a circuit court's competence to exercise its
subject matter jurisdiction is murky at best.").

1
 No. 2015AP869.ssa

principles is to govern: the validity of a judgment or the

finality of a judgment?2

¶30 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.3 A void judgment is forever vulnerable to attack.4

2
For discussions of the competing values of validity and
finality in judgments, see, for example, Restatement (Second) of
Judgments § 12 cmt. a at 116-17 (1982); Edward T. Matthews,
Civil Procedure: The Unfortunate Elevation of Finality Over
Validity——Bode v. Minn. Dep't of Natural Res., 28 Wm. Mitchell
L. Rev. 1217, 1218-19 (2002) (discussing a Minnesota Supreme
Court decision that "chose to adopt section 12 of the
Restatement (Second) of Judgements and its preference for
finality instead of adhering to its own precedent which held
that validity was of paramount importance") (footnotes omitted);
Karen Nelson Moore, Collateral Attack on Subject Matter
Jurisdiction: A Critique of the Restatement (Second) of
Judgments, 66 Cornell L. Rev. 534, 534 (1981) ("Courts, as well
as both Restatements [of Judgments], seek to resolve the
conflict between two important policies: insuring that judgments
are rendered only by courts having the power to do so (the
policy of validity) and enforcing a termination point for
litigation after the opportunity for full and fair litigation
(the policy of finality). The tension between these two
policies is readily apparent.").
3
"[T]he traditional doctrine was that a judgment of a court
shown to have lacked subject matter jurisdiction was 'void.'"
Restatement (Second) of Judgments § 12 cmt b at 117 (1982).

See State v. Campbell, 2006 WI 99, ¶43, 294 Wis. 2d 100,
718 N.W.2d 649.
4
See Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648
(1985) ("A void judgment may be expunged by a court at any
time.").

2
 No. 2015AP869.ssa

¶31 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.5 Thus, a judgment entered when the circuit

court lacks competency is not forever vulnerable to attack.

¶32 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 case.6

¶33 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,

5
See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273
Wis. 2d 76, 681 N.W.2d 190.

Mikrut used the word "waiver," but later cases interpret
"waiver" (in the sense Mikrut used that word) to mean
"forfeiture." See State v. Ndina, 2009 WI 21, ¶¶28-29, 315
Wis. 2d 653, 761 N.W.2d 612.

The Mikrut court did not address whether mandatory
statutory time limitations can be waived. See State v. Matthew
S., 2005 WI 84, ¶27, 282 Wis. 2d 150, 698 N.W.2d.
6
"This confusion has taken on a life of its own over the
years and shows no sign of abating." Xcel Energy Servs., Inc.
v. LIRC, 2013 WI 64, ¶65, 349 Wis. 2d 234, 833 N.W.2d 665
(Abrahamson, C.J., concurring).

3
 No. 2015AP869.ssa

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 ordinance.

¶34 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).

¶35 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.

¶36 The interests at stake in the instant case regarding

how to characterize the error are governmental and societal.

¶37 On the one hand, the public policy requiring a second

(or subsequent) OWI offense be prosecuted as a crime by the
4
 No. 2015AP869.ssa

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.

¶38 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.

¶39 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 statute; and

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."

The case law is confusing and based on misunderstandings.
5
 No. 2015AP869.ssa

¶40 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.

¶41 Unfortunately, the majority opinion rewrites precedent

and fails to clarify or develop the law.7

¶42 For the reasons set forth, I dissent and write

separately.

I

¶43 I begin where the instant case began, with a motion

under Wis. Stat. § 806.07(1) and (1)(d) in the Circuit Court for

Eau Claire County to vacate the first-offense civil OWI judgment

entered against Booth Britton in 1992.8

¶44 "Sec[tion] 806.07 attempts to achieve a balance

between the competing values of finality and fairness in the

7
Although I do not agree with several other aspects of the
majority opinion, I do not address them.
8
The majority opinion suggests that "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." Majority op., ¶25. This criticism is
unwarranted. Nothing in the record or law suggests that Booth
Britton is attempting to play fast and loose with the court
system. Rather, Booth Britton argues that the 1992 judgment is
void and that there is no time limit on motions to vacate void
judgments. See Neylan, 124 Wis. 2d at 97. Booth Britton's
position has significant support. Indeed, recent decisions of
the court of appeals have divided on the question presented in
the instant case. See infra, n.38.

6
 No. 2015AP869.ssa

resolution of a dispute. The court must construe section 806.07

to achieve this balance."9

¶45 The 1992 judgment imposed a civil forfeiture under a

local ordinance for a first-offense civil OWI. Because Booth

Britton had previously been convicted in Minnesota of OWI at the

time Eau Claire charged her with first-offense civil OWI, the

civil charge did not apply to her. She should have been charged

with and punished for a second-offense criminal OWI under the

escalating penalty scheme delineated in the statutes. Civil

penalties are not authorized for a second-offense OWI in

Wisconsin. See Rohner, 108 Wis. 2d at 721.

¶46 Without a civil statute prohibiting second-offense

OWI, Booth Britton could not be prosecuted for a civil OWI. The

facts upon which the prosecution of Booth Britton was based must

fall within the statutory description of the offense with which

she was charged. The prosecution of any second or subsequent

9
State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 542, 363
N.W.2d 419 (1985) (citing Patricia Graczyk, The New Wisconsin
Rules of Civil Procedure, Chapters 805–807, 59 Marq. L. Rev.
671, 727 (1976), and explaining that the court refers to
Wisconsin cases interpreting § 806.07 and to federal cases
interpreting Rule 60(b) of the Federal Rules of Civil Procedure
upon which § 806.07 is based); see also Edland v. Wis. Phys.
Serv. Ins. Corp., 210 Wis. 2d 638, 644, 563 N.W.2d 519 (1997)
(citing M.L.B. with approval).

7
 No. 2015AP869.ssa

offense OWI is "within the exclusive province of the state to

prosecute as a crime." See Rohner, 108 Wis. 2d at 721.10

¶47 In seeking relief from the first-offense civil OWI

judgment entered in Eau Claire, Booth Britton relied on Wis.

Stat. § 806.07(1) and (1)(d), which provides that "the

court . . . may relieve a party or legal representative from a

judgment" if "[t]he judgment is void . . . ."11

¶48 Although Wis. Stat. § 806.07(2) further requires that

motions for relief from judgments be made "within a reasonable

time," the court has held that "[a] void judgment may be

expunged by a court at any time." See Wis. Stat. § 806.07(2);

10
The majority opinion (¶14) asserts that it is
"harmonizing" Rohner and Mikrut by withdrawing language from
Rohner. The majority opinion creates additional confusion by
withdrawing language not only from Rohner but also from "any
other case."

To my mind, withdrawing language from a prior case or
unidentified prior cases amounts to overruling those cases in
part or in whole, not harmonizing them. Withdrawing language
from unidentified prior cases is a recipe for further confusion.

The majority opinion does not withdraw the language I
quote.
11
Wisconsin Stat. § 806.07(1) and (1)(d) provide as
follows:

On motion and upon such terms as are just, the court,
subject to subs. (2) and (3), may relieve a
party . . . from a judgment . . . for the following
reasons:

. . . .

(d) the judgment is void.

8
 No. 2015AP869.ssa

Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985).12

If a judgment is void, it cannot acquire validity because of the

lapse of time, and the judgment should be treated as legally

ineffective in a subsequent proceeding. See Neylan, 124 Wis. 2d

at 98-100.

¶49 Therefore, the issue presented is whether the first-

offense civil OWI judgment against Booth Britton is void under

Wis. Stat. § 806.07(1)(d). In deciding this § 806.07(1)(d)

issue, the majority opinion addresses whether the Eau Claire

circuit court had subject matter jurisdiction.

¶50 The majority opinion gives two reasons for concluding

that the Eau Claire circuit court had subject matter

jurisdiction to enter judgment for first-offense civil OWI under

the facts of the instant case.

¶51 First, the majority opinion repeatedly recites and

perpetuates by rote the court's pronouncement in Village of

Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681

N.W.2d 190, that a circuit court is never without subject matter

jurisdiction. See, e.g., majority op., ¶¶8, 12, 14.

12
In Neylan, 124 Wis. 2d at 97, after reviewing the history
of Wis. Stat. § 806.07 and its federal counterpart, Federal Rule
of Civil Procedure 60(b), the court concluded that although the
"reasonable time limit" stated in § 806.07 and the Federal Rule
seem literally to apply to a motion to vacate a void judgment, a
motion to vacate a void judgment may be brought at any time.

9
 No. 2015AP869.ssa

¶52 "Never" in Mikrut, however, does not mean "Never

Ever."

¶53 Our cases recognize that exceptions exist to Mikrut's

broad pronouncement that a circuit court is never without

subject matter jurisdiction.13 I return to this issue in Part II

of this dissent.

¶54 Second, the majority opinion (at ¶17) states that

State v. Bush, 2005 WI 103, ¶18, 283 Wis. 2d 90, 699 N.W.2d 80,

was "not entirely accurate" in stating that a circuit court

lacks subject matter jurisdiction if the error in a proceeding

is the failure to state an offense known at law. I address this

aspect of the majority opinion in this part of the dissent.

¶55 The majority opinion asserts that Bush is "not

entirely accurate" because "when 'a complaint fails to state an

offense known at law,' the court must retain subject matter

jurisdiction to dispose of the matter."14 The majority opinion

attempts to revive a straw man that was knocked down a long time

ago.

13
See, e.g., Campbell, 294 Wis. 2d 100, ¶¶45-56
(unanimously acknowledging that "[t]here are exceptions to
[Mikrut's] principles about subject matter jurisdiction and
competency," stating exceptions for a judgment premised upon an
unconstitutional statute and a judgment premised on a criminal
complaint that failed to allege any offense known at law, and
recognizing that "there may be other exceptions").
14
Majority op., ¶17 (internal citation omitted) (quoting
Bush, 283 Wis. 2d 90, ¶18).

10
 No. 2015AP869.ssa

¶56 Obviously a circuit court has jurisdiction to

determine its own jurisdiction (and thus jurisdiction "to

dispose of the matter," majority op., ¶17). The law has long

avoided the paradox that results if a court is without

jurisdiction to determine its jurisdiction.15

¶57 But the fact that a circuit court has jurisdiction to

determine its own jurisdiction is irrelevant to the real issue

Bush, the parties, and I address: Is a judgment rendered on a

civil or criminal offense not known at law void? The answer to

this question is yes.

¶58 The precept that the failure to state an offense known

at law is a jurisdictional defect is well-accepted: A circuit

court lacks subject matter jurisdiction to enter judgment in a

proceeding based on an offense not known at law, and any

15
See, e.g., City of Milwaukee v. Cohen, 57 Wis. 2d 38, 43-
44, 203 N.W.2d 633 (1973) ("A court must have subject-matter
jurisdiction in order to have the authority to hear and
determine the primary object of the action. In order to make
this determination this court has jurisdiction to determine
jurisdiction. That is, whether the circuit court and this court
have jurisdiction to hear the instant case.") (citing State v.
Omernik, 54 Wis. 2d 220, 194 N.W.2d 617 (1972); McCabe v.
Milwaukee, 53 Wis. 2d 34, 191 N.W.2d 926 (1971); Brachtl v. DOR,
48 Wis. 2d 184, 179 N.W.2d 921 (1970); Bublitz v. Matulis, 34
Wis. 2d 23, 148 N.W.2d 64 (1967); Monahan v. Dep't of Taxation,
22 Wis. 2d 164, 125 N.W.2d 331 (1963)); Restatement (Second) of
Judgments § 11 cmt. c at 110 (1982) ("[A] court has authority to
determine its own authority, or as it is sometimes put,
'jurisdiction to determine its jurisdiction.'").

11
 No. 2015AP869.ssa

judgment premised on an offense not known at law is void.16

Thus, without a civil or criminal statute prohibiting drunk

driving, an individual could not be prosecuted for drunk

driving, and if he or she were convicted, the judgment would be

void. "In short, Wisconsin law clearly establishes that a

16
This proposition has been repeated both before and after
Bush. See, e.g., Campbell, 294 Wis. 2d 100, ¶45 ("[A] criminal
complaint that fails to allege any offense known at law is
jurisdictionally defective and void"); State v. Christensen, 110
Wis. 2d 538, 542, 329 N.W.2d 382 (1983) ("Where the offense
charged does not exist, the trial court lacks jurisdiction.");
State v. Schneider, 60 Wis. 2d 563, 567, 211 N.W.2d 630, 633
(1973) (stating that a complaint that charges no offense known
at law is jurisdictionally defective and cannot sustain a
conviction); Champlain v. State, 53 Wis. 2d 751, 754, 193
N.W.2d 868 (1972) (a complaint which charges no offense is
jurisdictionally defective and the conviction is void); State v.
Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965) ("If the
defendant is correct that no offense is charged then the court
had no jurisdiction to proceed to judgment."); In re Carlson,
176 Wis. 538, 545, 186 N.W. 722 (1922) ("[I]f the information
charged no offense the court had no jurisdiction to proceed to
judgment," citing Article I, Section 7 of the Wisconsin
Constitution); State v. Howard, 139 Wis. 529, 534, 121 N.W. 133
(1909) (holding that when the facts do not fall within the
statutory offense charged, the sentence and judgment of
conviction must be reversed because the information does not
charge an offense known at law); State v. Briggs, 218
Wis. 2d 61, 65, 579 N.W.2d 783 (Ct. App. 1998) (Roggensack, J.,
authored; "[T]here is no crime of attempted felony murder in the
State of Wisconsin; therefore, the circuit court was without
subject matter jurisdiction to accept a plea, enter a
conviction, and sentence [the defendant] for attempted felony
murder."); State v. Cvorovic, 158 Wis. 2d 630, 631, 462
N.W.2d 897 (Ct. App. 1990) (concluding that because Wisconsin
law does not recognize the offense of attempted fourth degree
sexual assault, a conviction for that offense was void for lack
of subject matter jurisdiction).

12
 No. 2015AP869.ssa

judgment resulting from a complaint or information which charges

no offense recognized in law is void ab initio."17

¶59 The premise underlying Bush and the other cases

addressing offenses not known at law is simple: Circuit courts

have original jurisdiction over all matters civil and criminal,

except as otherwise provided by law. See Wis. Const. art. VII,

§ 8. If the offense is not known at law, no offense, civil or

criminal, is before the circuit court; as a result, the circuit

court is without subject matter jurisdiction in the first

instance. See Bush, 283 Wis. 2d 90, ¶18.

¶60 The majority opinion neglects the teachings of these

many, long-standing cases by simply asserting that in the

instant case "first-offense and second-offense OWIs are both

offenses known at law as set forth in our statutes." Majority

op., ¶16 (citing Wis. Stat. §§ 346.63(1), 346.65(2)(am)1.-2.).

In the majority's view (¶16), Booth Britton was charged and

convicted of an offense known at law because she "was charged

with a first-offense OWI, an offense that irrefutably exists

under our statutes."

¶61 These sentences and the assertion that Bush is "not

entirely accurate" are the entirety of the majority opinion's

conclusory explanation that Booth Britton's offense was known at

law.

17
Briggs, 218 Wis. 2d at 68-69.

13
 No. 2015AP869.ssa

¶62 Apparently the majority opinion (¶16) believes that

circuit courts have subject matter jurisdiction over any and all

OWI-related conduct, regardless of the nature of the conduct or

the text of the statutes. True, a first-offense civil OWI is

proscribed by the statutes. The facts upon which Booth Britton

was charged and found guilty, however, do not comport with the

proscribed civil offense.

¶63 By granting circuit courts subject matter jurisdiction

over any and all OWI-related conduct regardless of the text of

the statutes, the majority opinion rewrites legal history and

usurps legislative power. In our system of government, the

legislature defines civil and criminal offenses against the

government.

¶64 If an individual may be found guilty of a first-

offense civil OWI even though the individual has a prior OWI

conviction, then what is left of the rule espoused in numerous

cases that a circuit court is without subject matter

jurisdiction when "a complaint fails to state an offense known

at law . . . ?"18 What is left of Rohner's language, 108 Wis. 2d

at 716, (left intact by the majority opinion, ¶15) that second

(or subsequent) OWI offenses are within the exclusive

jurisdiction of the state?

18
See majority op., ¶17 (quoting Bush, 283 Wis. 2d 90,
¶18).

14
 No. 2015AP869.ssa

¶65 The majority opinion does not answer these questions.

Instead, the majority opinion moves quickly from labeling Bush

"not entirely accurate" (¶17) and describing all OWI-related

conduct (including the conduct that was the basis of the charge

against Booth Britton) as offenses known at law (¶16) to

discussing whether circuit courts have subject matter

jurisdiction to determine the constitutionality of a statute.

Majority op., ¶18. Of course they do. See Marbury v. Madison,

5 U.S. (1 Cranch.) 137, 178 (1803).19

¶66 Bush does not purport to impair the ability of a

circuit court to decide challenges to the constitutionality of a

statute. Indeed, the majority opinion recognizes that Bush

addressed a challenge to the constitutionality of chapter 980 of

the statutes.20

¶67 In so doing, Bush recognized that a circuit court has

jurisdiction to address whether a statute is unconstitutional on

its face. In addition, Bush declared in ¶¶18-19 that a circuit

court's judgment premised on an unconstitutional statute is

19
See Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 178
(1803) ("So if a law be in opposition to the constitution; if
both the law and the constitution apply to a particular case, so
that the court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty.").
20
See majority op., ¶18 (citing Bush, 283 Wis. 2d 90, ¶¶19,
40).

15
 No. 2015AP869.ssa

void.21 The court said the same thing in State v. Campbell, 2006

WI 99, ¶45, 294 Wis. 2d 100, 718 N.W.2d 649, declaring: "Thus,

if a statute is unconstitutional on its face, any judgment

premised upon that statute is void."

¶68 Nevertheless, the majority opinion (¶18) withdraws any

language in Bush "purporting to impair the ability of a court to

exercise its subject matter jurisdiction over challenges to the

constitutionality of a statute." Because Bush does not purport

to impair the ability of a circuit court to address the

constitutionality of a statute, this aspect of the majority

opinion does no damage to Bush or our law. The majority opinion

cannot withdraw language in Bush that does not exist. Thus,

Bush is undisturbed.

¶69 Turning from the majority's analysis of Bush to the

majority's analysis of Rohner, the majority acknowledges that it

leaves intact "Rohner's holding 'that the state has exclusive

jurisdiction over a second offense for drunk driving,'" and

asserts that "nothing in our decision today alters Rohner's

confirmation of our state's policy to strictly enforce drunk

21
See Bush, 283 Wis. 2d 90, ¶17.

16
 No. 2015AP869.ssa

driving laws."22 See majority op., ¶15 (quoting Rohner, 108

Wis. 2d at 716).

¶70 Nevertheless, the majority opinion abandons the

legislatively adopted "state policy of strict enforcement of

these laws." Rohner, 108 Wis. 2d at 718. The majority replaces

this legislative policy with a court-adopted policy favoring the

finality of OWI judgments. Rohner specifically rejected giving

municipalities and district attorneys discretion over whether to

charge otherwise criminal OWIs as first-offense civil OWIs.23

Yet under the majority opinion, what would prevent a state or

local governmental official from choosing to charge and

prosecute a first offense civil OWI when a criminal charge

should be brought?24

22
The OWI statutes "requir[e] that criminal penalties be
imposed for a second offense," and "the legislature intended a
second offense for drunk driving to be within the exclusive
province of the state to prosecute as a crime." Rohner, 108
Wis. 2d at 717, 721.
23
See Rohner, 108 Wis. 2d at 718.
24
The majority opinion distinguishes the instant case from
Rohner, stating that the instant case involves an "unknown out-
of-state prior OWI conviction." Majority op., ¶13 n.6. Nothing
in the record in the instant case reveals whether Booth
Britton's prior Minnesota OWI conviction was (or was not) known
at the time of her 1992 conviction. Indeed, the record from
Booth Britton's 1992 OWI conviction has been destroyed. The
majority opinion assumes facts not in the record.

17
 No. 2015AP869.ssa

¶71 Ignoring the legislative policy of "strict enforcement

of drunk driving laws,"25 the majority adopts a policy favoring

the finality of judgments over the well-established rule that a

judgment of conviction for a civil or criminal offense not known

at law is void.

¶72 In contrast, I view Rohner and Bush as correctly

stating the legislative policy in the OWI statutes and

emphasizing the invalidity of judgments based on offenses not

known at law.

¶73 Thus, I conclude that the Eau Claire civil judgment is

void under Wis. Stat. § 806.07(1) and (1)(d); the facts of the

instant case do not fit any common law or statutory civil

offense. "Wisconsin law clearly establishes that a judgment

resulting from a complaint or information which charges no

offense recognized in law is void ab initio."26 Accordingly, the

circuit court's order granting Booth Britton's Wis. Stat.

§ 806.07(1)(d) motion for relief from the void Eau Claire

judgment should be affirmed.

II

¶74 I turn now to address the second area of law I

outlined earlier, namely:

25
Rohner, 108 Wis. 2d at 721.
26
Briggs, 218 Wis. 2d at 68-69.

18
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A. interpreting and applying Article VII, Section 8 of

the Wisconsin Constitution; and

B. analyzing the case law defining and differentiating

between "subject matter jurisdiction" and

"competency."

The case law is confusing and based on misunderstandings.

A

¶75 The majority opinion, relying on Mikrut, 273

Wis. 2d 76, concludes that under Article VII, Section 8 of the

Wisconsin Constitution "a circuit court is never without subject

matter jurisdiction." See, e.g., majority op., ¶¶8, 12, 14

(emphasis added). This statement is just wrong. Repeating,

repeating, and repeating it does not make it correct.

¶76 Two years after Mikrut, the court unanimously

acknowledged that there are exceptions to Mikrut's proclamation.

See Campbell, 294 Wis. 2d 100, ¶¶45-56 (unanimously

acknowledging that "[t]here are exceptions to [Mikrut's]

principles about subject matter jurisdiction and competency,"

stating two exceptions, and recognizing that "there may be other

exceptions").

¶77 The Wisconsin Constitution provides: "Except 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.
19
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¶78 Numerous cases interpreting the current version of

Article VII, Section 8 (as amended in 1977) have omitted any

reference to the language "except as otherwise provided by law"

and have concluded that a circuit court is never without subject

matter jurisdiction.27

¶79 Numerous cases interpreting the current version of

Article VII, Section 8 (as amended in 1977) have also concluded

27
For cases referring to post-1977 Article VII, Section 8
of the Wisconsin Constitution that erroneously declare that
circuit courts have unlimited subject matter jurisdiction and
omit any reference to the "except" clause, see, for example,
Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27, 349
Wis. 2d 234, 833 N.W.2d 665 ("Given this broad constitutional
grant of subject matter jurisdiction to the circuit courts, we
have recognized that 'no circuit court is without subject matter
jurisdiction to entertain actions of any nature whatsoever.'");
In re Ambac Assurance Corp., 2012 WI 22, ¶28, 339 Wis. 2d 48,
810 N.W.2d 450 ("It is axiomatic that a circuit court is never
without subject matter jurisdiction."); DaimlerChrysler v. LIRC,
2007 WI 15, ¶21, 299 Wis. 2d 1, 727 N.W.2d 311 ("Under the
Wisconsin Constitution, circuit courts in Wisconsin have general
original subject matter jurisdiction over 'all matters civil and
criminal.'").

20
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that Article VII, Section 8's grant of subject matter

jurisdiction cannot be revoked by statute.28

28
For cases referring to post-1977 Article VII, Section 8
of the Wisconsin Constitution and erroneously declaring that the
legislature cannot limit or revoke a circuit court's
jurisdiction, see, for example, Xcel Energy Servs., Inc. v.
LIRC, 2013 WI 64, ¶27, 349 Wis. 2d 234, 833 N.W.2d 665
("[B]ecause subject matter jurisdiction is conferred on the
courts by the constitution, it cannot be revoked by statute.");
State v. Matthew S., 2005 WI 84, ¶16, 282 Wis. 2d 150, 698
N.W.2d 631 (while the Wisconsin Constitution confers subject
matter jurisdiction, the legislature may limit the ability of
circuit courts to exercise it through statutes effecting
competency, not subject matter jurisdiction); Stern v. Wis.
Employment Relations Comm'n, 2006 WI App 193, ¶24, 296
Wis. 2d 306, 722 N.W.2d 594 ("[S]ubject matter jurisdiction is
plenary and constitutionally-based and is not affected by
statutes . . . ."); Amy Z. v. Jon T., 2004 WI App 73, ¶6, 272
Wis. 2d 662, 679 N.W.2d 903 ("The circuit courts possess
'plenary' jurisdiction by virtue of Wis. Const. Art. VII, § 8,
and that jurisdiction, in the sense of judicial power to act,
does not depend on legislative authorization. . . . Thus '[n]o
circuit court is without subject matter jurisdiction to
entertain actions of any nature whatsoever.'") (quoted sources
omitted); State v. Bollig, 222 Wis. 2d 558, 565, 587 N.W.2d 908,
911 (Ct. App. 1998) ("A circuit court has subject matter
jurisdiction, conferred by the state constitution, to consider
and determine any type of action . . . ."); Cepukenas v.
Cepukenas, 221 Wis. 2d 166, 170, 584 N.W.2d 227 (Ct. App. 1998)
("So although a court is vested with subject matter jurisdiction
by the constitution, the legislature may enact statutes limiting
a court's exercise of subject matter jurisdiction. Such a
legislative enactment affects that court's competency to proceed
rather than its subject matter jurisdiction."); Kohler Co. v.
Wixen, 204 Wis. 2d 327, 336-37, 555 N.W.2d 640 (Ct. App. 1996)
("Although a court is vested with subject matter jurisdiction by
the constitution, the legislature may enact statutes which limit
a court's power to exercise subject matter jurisdiction. Such
legislative measures affect a court's competency rather than its
jurisdiction."). Compare State v. Annala, 168 Wis. 2d 453, 462,
484 N.W.2d 138 (1992) (recognizing that "Article VII, sec. 8 of
the Wisconsin Constitution and sec. 753.03, Stats., vests within
the circuit court the power to hear and determine all civil and
criminal actions and proceedings unless exclusive jurisdiction
is given to some other court. . . . Section 48.12(1) Stats.,
(continued)
21
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¶80 These broad pronouncements in the cases are "the kind

of hyperbole that sometimes creeps into opinions . . . ."29 These

pronouncements have detached our jurisprudence regarding Article

VII, Section 8 from the very text this court is supposedly

interpreting. Ignoring a key phrase in the state constitution

is not an acceptable form of constitutional interpretation.30

¶81 Properly interpreted, Article VII, Section 8 allows

the legislature to divest circuit courts of subject matter

expressly provides that the juvenile [branch of the circuit]
court shall have exclusive jurisdiction" over certain
actions . . . .").
29
United States v. Dessart, ___ F.3d ___, ___ (7th Cir.
2016) (Posner, J., concurring) (quoting United States v.
Curescu, 674 F.3d 735, 741 (7th Cir. 2012)).
30
See Thompson v. Craney, 199 Wis. 2d 674, 680, 546
N.W.2d 123 (1996) (stating, as prior and subsequent cases have
stated, that when interpreting the Wisconsin Constitution, the
court should look to "the plain meaning of the words in the
context used; the constitutional debates and the practices in
existence at the time of the writing of the constitution; and
the earliest interpretation of the provision by the legislature
as manifested in the first law passed following adoption.").

22
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jurisdiction so long as the legislature places the power to hear

those cases in other courts within the unified court system.31

¶82 The majority opinion acknowledges this limitation in a

footnote (¶18, n.10), but then missteps, asserting that the

constitutional phrase "except as otherwise provided by law"

"forecloses the legislature from enacting a statute that would

circumscribe the broad constitutional grant of subject matter

jurisdiction to circuit courts."

¶83 At times, the majority opinion appears to recognize

that "never" in Mikrut does not mean "never ever." At other

times, the majority opinion repeatedly asserts that a circuit

court never lacks subject matter jurisdiction.

31
The legislature has interpreted Article VII, Section 8 of
the Wisconsin Constitution as permitting it to divest circuit
courts of jurisdiction. Wisconsin Stat. § 753.03 states: "The
circuit courts have power to hear and determine, within their
respective circuits, all civil and criminal actions and
proceedings unless exclusive jurisdiction is given to some other
court . . . ." See also Mueller v. Brunn, 105 Wis. 2d 171, 176,
313 N.W.2d 790 (1982) ("We recognize, however, that the
legislature has the authority to abolish heretofore recognized
common law actions (e.g., breach of promise suits) and may set
standards for exhaustion of administrative remedies or for
primary jurisdiction prior to the proper invocation of the court
system's subject matter jurisdiction.").

See State v. Annala, 168 Wis. 2d 453, 462, 484 N.W.2d 138
(1992), (recognizing that "Article VII, sec. 8 of the Wisconsin
Constitution and sec. 753.03, Stats., vests within the circuit
court the power to hear and determine all civil and criminal
actions and proceedings unless exclusive jurisdiction is given
to some other court. . . . Section 48.12(1) Stats., expressly
provides that the juvenile [branch of the circuit] court shall
have exclusive jurisdiction" over certain actions . . . . "

23
 No. 2015AP869.ssa

¶84 The majority opinion does not attempt to resolve this

inconsistency or interpret Article VII, Section 8 of the

Wisconsin Constitution and our case law. Instead, the majority

opinion single-mindedly and steadfastly repeats Mikrut's

assertions that the legislature is foreclosed from enacting a

statute that would circumscribe the broad constitutional grant

of subject matter jurisdiction to the circuit courts and that "a

circuit court is never without subject matter jurisdiction."

¶85 Unfortunately, Mikrut rests on a defective foundation.

¶86 Mikrut misconstrued both Eberhardy v. Circuit Court

for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981), and

Article VII, Section 8 without genuinely analyzing either.32 I

shall undertake that analysis, beginning with Eberhardy, and

recognizing that Eberhardy in turn analyzes and rests upon

Article VII, Section 8.

¶87 The issue in Eberhardy was whether a circuit court

could order sterilization of a woman who was not competent to

consent to sterilization. Eberhardy made clear that legislative

32
Mikrut, 273 Wis. 2d at 86, cites Eberhardy v. Circuit
Court for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981),
and Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790
(1982), for the proposition that a circuit court is never
without subject matter jurisdiction. Mueller does not cite or
quote the Wisconsin Constitution. Mueller merely cites
Eberhardy for the proposition that "no circuit court is without
subject matter jurisdiction to entertain actions of any nature
whatsoever." Mueller, 105 Wis. 2d at 176. Because Mueller adds
nothing to the discussion in Mikrut or Eberhardy, I address
Eberhardy, Mikrut, and the Wisconsin Constitution, not Mueller.

24
 No. 2015AP869.ssa

authority was not needed for a circuit court to decide the issue

presented.33 But Eberhardy also made clear that the legislature

can withdraw categories of cases from a circuit court's decision

making power, so long as that power is placed elsewhere in the

unified court system.

¶88 The Eberhardy court explained the effect of the pre-

1977 and post-1977 constitutional provisions relating to the

subject matter jurisdiction of circuit courts as follows.

¶89 Both before and after the 1977 Wisconsin

constitutional amendments, Article VII, Section 2 mentions

33
The lack of legislation on this topic did not, however,
make the circuit courts unable to hear these cases, render
judgments, or issue orders. Rather, the court reasoned that
sound judicial policy militated against the judiciary's
rendering a decision about the fundamental right to bear
children without input as to the state's public policy
interests. Eberhardy, 102 Wis. 2d at 576.

The context of Eberhardy is important. In that case, both
the guardian ad litem and the legal guardian of the individual
supported sterilization. Eberhardy, 102 Wis. 2d at 570. The
court was uniquely ill-suited to decide the case; no party
informed the court "why sterilization might be improper."
Eberhardy, 102 Wis. 2d at 570. Lest one think that the
Wisconsin Supreme Court (or circuit courts) would permanently be
the wrong forum to address these concerns, the court concluded
its opinion by stating, "[P]ursuant to our supervisory authority
we direct such jurisdiction shall not be exercised until the
state's policy to do so is set forth by appropriate legislation
or until further order of this court." Eberhardy, 102 Wis. 2d
at 578-79 (emphasis added).

Thus, the legislature (through inaction) could not
permanently prevent circuit courts from exercising their power
to hear actions on this topic.

25
 No. 2015AP869.ssa

circuit courts and authorizes the legislature to establish

inferior courts.

¶90 Before the 1977 amendments, Article VII, Section 8

stated: "The circuit courts shall have original jurisdiction in

all matters civil and criminal within this state, not excepted

by this constitution, and not hereafter prohibited by

law . . . ." (emphasis added).

¶91 The 1977 amendments to Article VII, Section 8 changed

the language "not hereafter prohibited by law" to read "[e]xcept

as otherwise provided by law . . . ."

¶92 In Eberhardy, the court declared that "[t]his change,

however, is not substantive."34

¶93 Thus, pre-1977 and post-1977 cases should be examined

in interpreting the present version of Article VII, Section 8 of

the Wisconsin Constitution.

¶94 The Eberhardy court explained that under both the pre-

1977 and post-1977 versions of Article VII, Section 8, the

legislature could divest and reallocate jurisdiction over

certain types of cases from the circuit courts to other courts.

The legislature could not, however, transfer jurisdiction to an

entity outside the unified court system. Why not? Because

Article VII, Section 2 of the Wisconsin Constitution vests

judicial power in "a unified court system."

34
Eberhardy, 102 Wis. 2d at 550.

26
 No. 2015AP869.ssa

¶95 The Eberhardy court explained the rule that the

legislature could constitutionally transfer jurisdiction from

the circuit courts to other courts by referring to a 1954

article authored by Attorney E. Harold Hallows (who later served

on the Wisconsin Supreme Court) and Attorney Jack DeWitt as

follows:

It has previously been pointed out that this language
["[e]xcept as otherwise provided by law" in Article
VII, Section 8] only allows for a legislative
reallocation of jurisdiction from the circuit court to
another court. It does not permit the legislature to
divest the constitutional grant of jurisdiction from
the unified court system; and under the unified system
created by the amendment of 1977, original
jurisdiction is vested wholly in the circuit court.
The legislative allocation of jurisdiction under the
constitution as it existed prior to 1977 was discussed
in [E. Harold] Hallows & [J.R.] DeWitt, The Need for
Court Organization, 1954 Wis. L. Rev. 377 [sic], 387
n.54. It was pointed out therein that the legislative
authority to reallocate judicial power and to transfer
it from one court to another could not abrogate the
court system's powers. Rather, as was said in State
v. Wimberly, 55 Wis. 2d 437, 441, 198 N.W.2d 360
(1972), quoting Callanan v. Judd, 23 Wis. 343 (1868),
the language was designed:

" . . . to enable the legislature to distribute the
jurisdiction in both matters at law and in equity, as
between the circuit courts and the other courts in the
state. . . . "
Eberhardy, 102 Wis. 2d at 550-51.

¶96 Note 54 in the Hallows and DeWitt article explains

that the pre-1977 Article VII, Section 8, permitted jurisdiction

to be divested from circuit courts, as follows:

Cases permitting jurisdiction to be divested from
circuit court are Bookhout v. State, 66 Wis. 415, 28
N.W. 179 (1886); Lannon v. Hackett, 49 Wis. 261, 5
27
 No. 2015AP869.ssa

N.W. 474 (1880); Goyke v. State, 136 Wis. 557, 117
N.W. 1027 (1908); State v. Krause, 260 Wis. 313, 50
N.W.2d 439 (1951). See also Hicks v. Hardy, 241 Wis.
11, 4 N.W.2d 150 (1942), holding that probate
jurisdiction is in county rather than circuit court.
E. Harold Hallows & J.R. DeWitt, The Need for Court

Organization, 1954 Wis. L. Rev. 376, 387 n. 54.

¶97 Hicks v. Hardy, 241 Wis. 11, 4 N.W.2d 150 (1942), is

instructive in understanding Article VII, Section 8 and

Eberhardy. In Hicks, the plaintiff widow brought an action in

equity in the circuit court to vacate a county court judgment.

The Hicks court dismissed the circuit court action, holding that

only the county court in probate had such jurisdiction.

¶98 Other cases have also recognized that pre-1977 Article

VII, Section 8 of the Wisconsin Constitution "confers upon the

legislature power to restrict the original jurisdiction of the

circuit courts." State v. Krause, 260 Wis. 313, 320, 50

N.W.2d 439 (1951); see also Bookhout v. State, 66 Wis. 415, 418

(1886).

¶99 The case law, including Eberhardy, and the text of

Article VII, Section 8 of the Wisconsin Constitution clearly

demonstrate that (both before and after the 1977 constitutional

amendments) the legislature is not foreclosed from enacting a

statute divesting circuit courts of subject matter jurisdiction

so long as the jurisdiction is reallocated to other courts

within the unified court system. Thus, as a matter of law, a

circuit court may be without subject matter jurisdiction as a

result of legislative action.

28
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¶100 I now turn from the majority opinion's misguided

refrain (taken from Mikrut) that circuit courts never lack

subject matter jurisdiction to address the confusing cases

defining and differentiating between circuit court "subject

matter jurisdiction" and circuit court "competency." These

cases are based on misunderstandings.

B

¶101 As noted previously, allowing parties to raise subject

matter jurisdiction challenges at any time "posed difficulty

chiefly because, if taken literally, it subverted the principle

of finality."35 In attempting to preserve the finality of

judgments, this court has manufactured a doctrine, allegedly

stemming from the state constitution, whereby circuit courts are

never without "subject matter jurisdiction" but may instead lack

"competency."

¶102 The distinction between subject matter jurisdiction

and competency, apparently first described in Wisconsin in

Mueller v. Brunn, 105 Wis. 2d 171, 313 N.W.2d 790 (1982), and
supposedly clarified by Mikrut,36 remains unclear and confusing

and has been applied inconsistently by the court of appeals.

¶103 As recently as this year, the Wisconsin Court of

Appeals explicitly noted the uncertainty regarding these two

terms. See DWD v. LIRC, 2016 WI App 21, ¶8, 367 Wis. 2d 609,

35
Restatement (Second) of Judgments § 12 cmt. b at 117.
36
See majority op., ¶¶11, 14, 19 (asserting that Mikrut
clarified the law of subject matter jurisdiction and circuit
court competency).

29
 No. 2015AP869.ssa

877 N.W.2d 620 ("In fairness to the parties, the case law

addressing competency and jurisdiction in Wisconsin is not a

beacon of clarity.").

¶104 In 2005, 13 years after Mueller was decided and just

one year after Mikrut, this court described the case law on

subject matter jurisdiction and competency as "murky at best."

Bush, 283 Wis. 2d 90, ¶16.

¶105 In 1991, nine years after Mueller, this court

acknowledged that the terms "subject matter jurisdiction" and

"competency" have been inconsistently used and defined by courts

and commentators across the country. See Green Cnty. DHS v.

H.N., 162 Wis. 2d 635, 656 n.17, 469 N.W.2d 845 (1991).

¶106 The instant case is a prime example of the confusion

that the "subject matter jurisdiction/competency" terminology

has wrought on Wisconsin's jurisprudence. We might expect

different districts of the Wisconsin Court of Appeals

occasionally to reach inconsistent conclusions. Yet a decade

after Mikrut supposedly "clarified Wisconsin's jurisprudence,"37
the court of appeals reached inconsistent decisions on

competency and subject matter jurisdiction issues similar to

37
Majority op., ¶14.

30
 No. 2015AP869.ssa

those presented in the instant case.38 This continued confusion

illustrates Mikrut's failure to actually clarify the law

surrounding subject matter jurisdiction.

¶107 The confusion between subject matter jurisdiction and

competency is not surprising for several reasons.

¶108 First, unfortunately, Mueller defined "subject matter

jurisdiction" and "competency" using the same words. This

language was bound to cause confusion. See Shopper Advertiser,

Inc. v. DOR, 117 Wis. 2d 223, 238, 344 N.W.2d 115 (1984)

(Abrahamson, J., concurring in part and dissenting in part).39

¶109 Second, Mueller referred to the Restatement (First) of

Judgments § 7 (1942) for the distinction between these terms. A

careful reading of section 7 and the comments in the Restatement

38
See majority op., ¶13 n.7. As the majority opinion
explains in note 7, the court of appeals has reached
inconsistent results in several recently decided, unpublished
opinions addressing similar arguments to those raised in the
instant case. Compare, e.g., State v. Navrestad, No.
2014AP2273, unpublished slip op. (Wis. Ct. App. July 2, 2015)
(following Mikrut's competency-subject matter distinction) with
City of Stevens Point v. Lowery, No. 2014AP742, unpublished slip
op. (Wis. Ct. App. Feb. 5, 2015) (applying Rohner and holding
that the circuit court lacked subject matter jurisdiction) and
Clark Cnty. v. Potts, No. 2012AP2001, unpublished slip op. (Wis.
Ct. App. March 28, 2013) (same).
39
As I pointed out in 1984, the court's opinions do not
clarify the meaning of the terms "subject matter jurisdiction,"
"competency," and "venue"; the terms are used interchangeably in
the opinions; and it does not matter what terminology is used as
long as the court defines the terms, uses the terms in a
consistent fashion, and explains the consequences of the
classifications it establishes. Shopper Advertiser, Inc. v.
DOR, 117 Wis. 2d 223, 236-38, 344 N.W.2d 115 (1984) (Abrahamson,
J., concurring in part and dissenting in part).

31
 No. 2015AP869.ssa

shows that the Restatement (First) uses the terms subject matter

jurisdiction and competency "more or less interchangeably."

Shopper Advertiser, 117 Wis. 2d at 237 (Abrahamson, J.,

concurring in part and dissenting in part) (quoting Richard H.

Field & Benjamin Kaplan, Civil Procedure 603 (2d ed. 1968)).

¶110 Furthermore, Restatement (Second) of Judgments,

Introductory Note at 28 (1982), explains that it uses the term

"subject matter jurisdiction," rather than "competency," "simply

because it [subject matter jurisdiction] is much more commonly

used in American legal parlance than 'competence' or

'competency.'" The Restatement notes, however, that sometimes

the rules of subject matter jurisdiction are referred to as

rules of competency. See comments to § 11 at 108-09.

¶111 Third, the Wisconsin statutes (and rules promulgated

by this court) generally refer to a circuit court's subject

matter jurisdiction, not competency. See, e.g., Wis. Stat.

§ 645.04(5), 801.04(1), 801.05, 801.07, 802.06(8)(c).

¶112 For example, Wis. Stat. § (Rule) 801.04(1) defines
subject matter jurisdiction as "[t]he power of the court to hear

the kind of action brought. . . . Jurisdiction of the subject

matter is conferred by the constitution and statutes of this

state and by statutes of the United States . . . ." Section

(Rule) 802.06(8)(c) provides that if "the court lacks

jurisdiction of the subject matter, the court shall dismiss the

action."

¶113 The statutes also refer to competency. See, e.g.,
§§ 48.245(7); 48.25(2); 938.245(7)(a); 938.25(2)(a), (b);

32
 No. 2015AP869.ssa

938.315(3) (refers to competency and subject matter

jurisdiction); 980.038(1)(a) (refers to competency and subject

matter jurisdiction). These statutes state that the failure to

object to noncompliance with the specified statutory time period

waives this challenge to the court's ability to proceed.

¶114 Fourth, over the years Wisconsin courts have used the

terms "competency" and "subject matter jurisdiction" "in a

variety of ways." Miller Brewing Co. v. LIRC, 173 Wis. 2d 700,

705 n.1, 495 N.W.2d 660, 661 (1993) (citing Green Cnty. DHS v.

H.N., 162 Wis. 2d 635, 656, 469 N.W.2d 845 (1991)).

¶115 The case law in the more than 30 years that have

elapsed since Mueller ushered in the distinction between subject

matter jurisdiction and competency demonstrates that

clarification and development of the law is needed. Although

this court is supposed to clarify and develop the law, the

majority opinion fails in that task.

¶116 For the reasons set forth, I dissent. I conclude that

the first-offense civil OWI judgment entered by the Eau Claire
circuit court against Booth Britton is void. Accordingly, the

judgment should be vacated under Wis. Stat. § 806.07(1)(d), and

the circuit court's decision should be affirmed.

¶117 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

33
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1