City of Eau Claire v. Booth, No. 2015AP869.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtREBECCA G. BRADLEY, J.
Citation370 Wis.2d 595,882 N.W.2d 738
PartiesCITY OF EAU CLAIRE, Plaintiff–Appellant, v. Melissa M. BOOTH, n/k/a Melissa M. Booth Britton, Defendant–Respondent.
Docket NumberNo. 2015AP869.
Decision Date12 July 2016

370 Wis.2d 595
882 N.W.2d 738

CITY OF EAU CLAIRE, Plaintiff–Appellant,
Melissa M. BOOTH, n/k/a Melissa M. Booth Britton, Defendant–Respondent.

No. 2015AP869.

Supreme Court of Wisconsin.

Argued April 7, 2016.
Decided July 12, 2016.

882 N.W.2d 739

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.



370 Wis.2d 599

¶ 1 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 municipal

882 N.W.2d 740

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.

370 Wis.2d 600


¶ 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 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.

370 Wis.2d 601

¶ 4 The circuit court voided the 1992 conviction on subject matter jurisdiction grounds. It relied on County of Walworth v. Rohner, 108 Wis.2d 713, 324 N.W.2d 682 (1982), concluding that “[s]ince a second offense OWI cannot be prosecuted as a civil action in Wisconsin, the Court Commissioner did not have the proper jurisdiction in the 1992 prosecution to render a civil judgment.”

¶ 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

882 N.W.2d 741

under Wis. Stat. § (Rule) 809.60, which we granted.


¶ 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.


¶ 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

370 Wis.2d 602

granted to circuit courts by our constitution, it cannot be “curtailed by state statute.” Mikrut, 273 Wis.2d 76, ¶ 8, 681 N.W.2d 190 ; see also Eberhardy v. Circuit Court for Wood Cty., 102 Wis.2d 539, 550, 307 N.W.2d 881 (1981) (noting that the constitutional language “only allows for a legislative reallocation of jurisdiction from the circuit court to another court”). However, “a circuit court's ability to exercise the subject matter jurisdiction vested in it by the constitution may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases.” Mikrut, 273 Wis.2d 76, ¶ 9, 681 N.W.2d 190. 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, 699 N.W.2d 508 (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, 681 N.W.2d 190, which stated that “a circuit court is never without subject matter jurisdiction.” Booth Britton, in contrast, points to Rohner, 108 Wis.2d at 722, 324 N.W.2d 682, a 1982 decision, which she argues held that circuit courts do not have subject matter jurisdiction over subsequent criminal OWI offenses that were

370 Wis.2d 603

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.

882 N.W.2d 742


¶ 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, 324 N.W.2d 682. Rohner contemporaneously objected to the improper charge in the circuit court and argued that the improper charging resulted in a lack of subject matter jurisdiction because he should have been charged with a second-offense OWI under state law rather than a first-offense OWI under a municipal ordinance. Id. The circuit court disagreed, reasoning that it had “jurisdiction”

370 Wis.2d 604

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, 324 N.W.2d 682. 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, 324 N.W.2d 682. 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, 324 N.W.2d 682 (emphasis added).

¶ 11 Following Rohner, we decided Mikrut,...

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