City of Cedarburg v. Hansen, No. 2018AP1129

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: PATIENCE DRAKE ROGGENSACK, C.J.
• Citation: 938 N.W.2d 463,390 Wis.2d 109,2020 WI 11
• Parties: CITY OF CEDARBURG, Plaintiff-Appellant, v. Ries B. HANSEN, Defendant-Respondent.
• Docket Number: No. 2018AP1129
• Decision Date: 11 February 2020

390 Wis.2d 109
938 N.W.2d 463
2020 WI 11

CITY OF CEDARBURG, Plaintiff-Appellant,
v.
Ries B. HANSEN, Defendant-Respondent.

No. 2018AP1129

Supreme Court of Wisconsin.

Oral Argument: September 9, 2019
Opinion Filed: February 11, 2020
Motion for Reconsideration Filed February 26, 2020

For the plaintiff-appellants, there were briefs (in the court of appeals) filed by Johnathan G. Woodward and Houseman & Feind, LLP, Grafton. There was an oral argument by Johnathan G. Woodward.

For the defendant-respondent, there was a brief (in the court of appeals) filed by Andrew Mishlove and Mishlove & Stuckert, LLC, Glendale. There was an oral argument by Andrew Mishlove.

PATIENCE DRAKE ROGGENSACK, C.J.

390 Wis.2d 112

¶1 This case comes before us on bypass, pursuant to Wis. Stat. § 809.60 (2017–18),¹ from the circuit court for Ozaukee County.²

¶2 In 2005, Ries B. Hansen was convicted by the Mid-Moraine Municipal Court of Operating While Intoxicated (OWI) in violation of a City of Cedarburg ordinance, based upon Hansen's guilty plea to the alleged violation.³ In 2016, when he was again charged with OWI, Hansen collaterally attacked his 2005 conviction by proving that he had a 2003 OWI conviction in Florida. He contended that his 2005 OWI was factually a second offense and therefore, outside of the municipal court's limited subject matter jurisdiction. The circuit court agreed and vacated Hansen's 2005 conviction.

¶3 We conclude that the 2005 municipal citations invoked the municipal court's subject matter jurisdiction, which was granted by Article VII, Section 14 of the Wisconsin Constitution. Therefore, the municipal court had power to adjudicate the allegation that Hansen operated a motor vehicle while intoxicated in violation of a municipal ordinance. And further, even if we were to agree with Hansen that Wisconsin's statutory

938 N.W.2d 465

progressive OWI penalties were not followed in 2005, the municipal court would have

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lacked competence not subject matter jurisdiction. City of Eau Claire v. Booth, 2016 WI 65, ¶14, 370 Wis. 2d 595, 882 N.W.2d 738.

¶4 And finally, an objection to a court's competence may be forfeited if it is not raised in a timely manner. Id., ¶1. Hansen was silent about his 2003 Florida OWI conviction until he was again arrested for OWI in 2016. We conclude that, by his 11 years of silence, Hansen has forfeited any competence objection that could exist. Accordingly, his 2005 and 2003 convictions were countable offenses in 2016 for purposes of Wisconsin's statutory progressive penalty requirements, and we reverse the order of the circuit court.

I. BACKGROUND

¶5 This case is grounded in three OWI convictions and their effects on each other due to Wisconsin's statutory progressive penalty requirements for OWI-related events. In 2005, Hansen was arrested in Wisconsin for OWI.⁴ The arresting officer who issued the civil citations, the municipal court, and the municipal attorney who prosecuted the 2005 offense did not know that Hansen had a 2003 OWI conviction in Florida.

¶6 Therefore, Hansen was charged with violating a Cedarburg ordinance, and he was prosecuted as an OWI first-offender. Hansen alleges, in a footnote in his brief, that the Ozaukee County District Attorney knew of the Florida OWI and "declined to prosecute that matter as a criminal offense due to a lack of

390 Wis.2d 114

clarity in the records."⁵ However, he admits he is "unable to confirm whether that occurred."⁶ Cedarburg asserts that the Florida OWI was unknown. It points to Hansen's Wisconsin driving record dated May 22, 2005 that was submitted by affidavit and does not show a prior OWI offense.⁷

¶7 However, as Hansen's 2016 collateral attack shows, he knew of his Florida OWI conviction, but he did not disclose it in 2005. Instead, by written stipulation signed by his attorney, he pled guilty to a municipal OWI citation and the PAC citation was dismissed.

¶8 In 2016, when Hansen again was arrested for OWI, he was charged under state statute as OWI-third because the arresting officer had knowledge of the 2005 OWI conviction, as well as the Florida conviction. Hansen collaterally attacked the validity of the 2005 municipal court conviction. He asserted that the municipal court did not have jurisdiction to prosecute him in 2005 because that OWI was factually a second offense, which is a criminal offense, for which municipal courts have no jurisdiction. He contended that his 2016 OWI violation could be counted only as a first-offense OWI because the 2005 conviction was void due to lack of municipal court jurisdiction and his 2003 Florida OWI occurred more than 10 years before his 2016 Wisconsin OWI.

¶9 In his collateral attack, Hansen moved the circuit court to vacate his 2005 conviction. The circuit court granted the motion. The court concluded that the municipal court did not have subject matter jurisdiction to adjudicate the 2005 OWI offense because factually

390 Wis.2d 115

it was a second

938 N.W.2d 466

offense, and therefore, a criminal offense outside of the municipal court's jurisdiction.

¶10 Hansen also moved the municipal court to vacate its judgment of conviction for the 2005 OWI.⁸ The municipal court denied Hansen's motion. It reasoned that an error in charging affected the municipal court's competence but not its jurisdiction. Hansen sought review of the municipal court's decision in the Ozaukee County Circuit Court. The circuit court reversed the municipal court, for a second time concluding that the 2005 judgment was void for lack of municipal court subject matter jurisdiction.

¶11 We granted bypass to determine whether Hansen's undisclosed 2003 Florida OWI conviction negated the municipal court's jurisdiction or impacted only its competence in 2005. We conclude that any error that occurred affected only the municipal court's competence. Accordingly, we reverse the circuit court.

II. DISCUSSION

A. Standard of Review

¶12 We independently interpret and apply Wisconsin statutes under known facts as questions of law. Daniel v. Armslist, LLC, 2019 WI 47, ¶13, 386 Wis. 2d 449, 926 N.W.2d 710.

¶13 Similarly, "We independently review questions of subject matter jurisdiction and competenc[e]." Booth, 370 Wis. 2d 595, ¶6, 882 N.W.2d 738 (citing

390 Wis.2d 116

Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190 ). Lastly, we independently review whether a party has forfeited his or her right to challenge a court's competence. See Booth, 370 Wis. 2d 595, ¶6, 882 N.W.2d 738 (citing Mikrut, 273 Wis. 2d 76, ¶7, 681 N.W.2d 190 ).

B. Statutory Progressive Penalties

1. Overview

¶14 This case involves the legal issue of whether the municipal court's lack of knowledge of Hansen's 2003 Florida conviction affected its subject matter jurisdiction or only its competence in 2005. Wisconsin's OWI penalties escalate with each countable offense both in regard to the nature of the conviction and in regard to the monetary and confinement consequences. As a beginning, a first offense is a civil forfeiture.⁹ Wis. Stat. § 346.65(2)(am). Second and third offenses are misdemeanors. § 346.65(2)(am)2. & 3. A fourth offense is a Class H Felony. § 346.65(2)(am)4. The penalty continues to escalate until a tenth offense, which is a Class E Felony. § 346.65(2)(am)7.

¶15 Under Wisconsin's progressive penalties for OWI-related offenses, a countable offense does not have to be an OWI conviction.

390 Wis.2d 117

Wisconsin Stat. § 343.307(1) lists a variety of offenses, some of which do not arise from OWI convictions. For example, revocation for improper refusal to take a chemical test that law enforcement has requested counts the same as an OWI conviction for purposes of increasing statutory penalties. Wis. Stat. § 343.307(1)(f) ; Wis. Stat. § 343.305(10).

938 N.W.2d 467

¶16 Furthermore, the prohibited conduct need not occur in Wisconsin. Out-of-state OWI-related events count as "[c]onvictions under the law of another jurisdiction that prohibits a person from refusing chemical testing." Wis. Stat. § 343.307(1)(d). A court also counts administrative "[o]perating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing." § 343.307(1)(e).

¶17 Prosecutors and courts cannot knowingly disregard countable offenses. County of Walworth v. Rohner, 108 Wis. 2d 713, 721, 324 N.W.2d 682 (1982). For example, a prosecutor has no discretion to prosecute a second-offense OWI, which he knows is a second offense, as a first offense. Id., 108 Wis. 2d at 718, 324 N.W.2d 682. Wisconsin's progressive OWI penalties are mandatory directives from the legislature "to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons...