Commitment of Bollig, In re, 97-2231

• Decision Date: 22 October 1998
• Docket Number: No. 97-2231,97-2231
• Citation: 222 Wis.2d 558,587 N.W.2d 908
• Parties: In re the COMMITMENT OF Richard BOLLIG. State of Wisconsin, Petitioner-Appellant, v. Richard L. Bollig, Respondent-Respondent. d
• Court: Wisconsin Court of Appeals

Page 908

587 N.W.2d 908

222 Wis.2d 558

In re the COMMITMENT OF Richard BOLLIG.

State of Wisconsin, Petitioner-Appellant, v. Richard L. Bollig, Respondent-Respondent. ^d

No. 97-2231.

Court of Appeals of Wisconsin.

Submitted on Briefs June 9, 1998.

Opinion Released Oct. 22, 1998.

Opinion Filed Oct. 22, 1998.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Mary E. Burke, assistant attorney general.

On behalf of the respondent-respondent, the cause was submitted on the brief of Richard D. Martin, assistant state public defender, of Milwaukee.

Before EICH, VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, J.

The State of Wisconsin appeals from an order of the circuit court dismissing a ch. 980 petition against Richard Bollig. The circuit court concluded that it lacked competency to proceed in the matter because attorney Jeffrey Mochalski had not been appointed as a special prosecutor under either § 978.045(1r) or § 978.045(3)(a), STATS., when he filed the ch. 980 petition against Bollig, and his subsequent appointment by the court could not cure that defect. Because we conclude that under the facts of this case any defect in the appointment of Mochalski was not central to the purpose of § 978.045(1r) and that Bollig suffered no prejudice, the court had competency to proceed on the ch. 980 petition. Therefore, we reverse and remand for further proceedings.

BACKGROUND

On October 10, 1991, Bollig was convicted of second-degree sexual assault, contrary to § 940.225(2)(a), STATS., and on November 20, 1991, he was sentenced to eight years in prison. On December 9, 1996, the Department of Corrections notified John Matousek, Monroe County District Attorney, that the Department of Corrections was requesting the Department of Justice (DOJ) to file a ch. 980 petition against Bollig. The communication stated that Bollig's anticipated date of release from Kettle Moraine Correctional Institution was Wednesday, February 5, 1997. ¹

In either late December of 1996 or early January of 1997, after he learned that DOJ would not be filing the petition, Matousek asked Mochalski to prepare and file a ch. 980 petition on Bollig. Based on Matousek's authorization, Mochalski commenced work as a special prosecutor in early January. On February 3, 1997, Mochalski filed the ch. 980 petition in Monroe County Circuit Court, which he signed as "Special Prosecutor--Monroe County." On February 3rd, the Monroe County Circuit Court found probable cause to hold further hearings on the petition and ordered Bollig transported to Monroe County for those hearings. On February 4, 1997, based on Matousek's illness and the assistant district attorney's absence from the office, the Monroe County Circuit Court issued an order appointing Mochalski as special prosecutor for "[a]ny and all workload necessary beginning 2/3/97 and continuing until ADA returns on 2/12." On February 5, 1997, the court issued a second order specifically appointing Mochalski to handle the ch. 980 petition on Bollig.

Bollig did not object to Mochalski representing the State as a special prosecutor at his initial appearance on February 6, 1997, nor did he object at his probable cause hearing on February 13, 1997, where the court found probable cause to believe that Bollig is a sexually violent person within the meaning of § 980.01(7), STATS., and ordered further proceedings on the ch. 980 petition.

On May 7, 1997, pursuant to § 802.06, STATS., Bollig filed a motion to dismiss the petition, asserting that Mochalski was not authorized to file it because the court had not appointed him special prosecutor on February 3, 1997, the date on which he filed the petition. On May 13, 1997, the circuit court conducted a hearing on the motion during which Mochalski and Matousek explained the circumstances surrounding Mochalski's appointment. It was undisputed that Matousek asked Mochalski to act as a special prosecutor in regard to Bollig's ch. 980 petition and that Mochalski agreed to do so prior to filing the petition.

On June 12, 1997, the circuit court issued a written decision concluding that special prosecutors appointed pursuant to § 978.045(1r), STATS., may represent the State in ch. 980 proceedings, but that a court cannot retroactively confer authority on an attorney to file such a petition. The circuit court also concluded that absent authority to act as a special prosecutor when the petition was filed, the court had no jurisdiction to proceed on the petition. It reached this conclusion because it believed Mochalski's prior appointment as a special prosecutor was a "fundamental ² On June 16, 1997, Mochalski and Matousek gave more testimony about Mochalski's appointment, bearing on whether he had been appointed as a public service special prosecutor under § 978.045(3)(a), STATS. The circuit court concluded that Mochalski had not been appointed pursuant to § 978.045(3)(a) when he filed the petition because Mochalski anticipated Matousek would be paid. ³ Thereafter, the court concluded it lacked competency to hear the ch. 980 petition Mochalski filed. It did so because it assumed that lack of an appointment prior to filing the petition was a defect that could not be cured. On June 19, 1997, the court issued a written order dismissing the petition, but it stayed Bollig's release. This appeal followed.

[222 Wis.2d 563] ² requirement" of his being able to initiate a ch. 980 petition.

DISCUSSION

Standard of Review.

A court's competency to act is a question of law which we review de novo. Village of Shorewood v. Steinberg, 174 Wis.2d 191, 200, 496 N.W.2d 57, 60 (1993). Whether a defect in statutory compliance is central to the statutory scheme for the appointment of a special prosecutor is also a question of law that we review independently of the circuit court. Arreola v. State, 199 Wis.2d 426, 441, 544 N.W.2d 611, 617 (Ct.App.1996); see Burnett v. Hill, 207 Wis.2d 110, 121, 557 N.W.2d 800, 805 (1997).

The State's Contentions.

The State argues that Bollig waived his objection to the circuit court's competency because he failed to object at his initial appearance on February 6th. The State also contends that Mochalski was a de facto special prosecutor when he filed the ch. 980 petition. And finally, the State argues that the defect in Mochalski's appointment was cured by his nunc pro tunc appointment on February 4, 1997.

1. Waived arguments.

Bollig asserts that the State did not raise the waiver or the de facto special prosecutor argument before the circuit court. Arguments that are raised for the first time on appeal by an appellant are deemed waived. State v. Keith, 216 Wis.2d 61, 80, 573 N.W.2d 888, 897 (Ct.App.1997) (citing State v. Ledger, 175 Wis.2d 116, 135, 499 N.W.2d 198, 206 (Ct.App.1993)). This waiver rule applies to the State with equal force, when the State is the appellant. State v. Rogers, 196 Wis.2d 817, 826-29, 539 N.W.2d 897, 900-01 (Ct.App.1995).

The State did not argue to the circuit court that Bollig had waived his objection to the court's competency by not raising it until May 7, 1997. It also did not contend that Mochalski was a de facto special prosecutor. Although Mochalski and Matousek testified that Matousek requested Mochalski to act as a special prosecutor in the Bollig ch. 980 petition prior to Mochalski's commencing work on it, and that Mochalski agreed to do so, Matousek continued to assert that he anticipated Mochalski would be paid for his work, thereby causing the circuit court to conclude that no appointment was made either under § 978.045(1r) or § 978.045(3)(a), STATS., prior to February 3rd, when the petition was filed. De facto authority was not argued or even mentioned until the State submitted its brief to this court. Therefore, we must conclude that the State has waived both arguments.

2. Competency.

Neither party argues that Mochalski was properly appointed as a special prosecutor under § 978.045(1r) or § 978.045(3)(a), STATS., ⁴ when he filed the ch. 980 petition.

Therefore, the only remaining issue is whether the defect in Mochalski's appointment under § 978.045(1r) resulted in the circuit court's losing competency to proceed.

A circuit court has subject matter jurisdiction, conferred by the state constitution, to consider and determine any type of action; however, failure to comply with a statutory mandate may result in a loss of competency which can prevent a court from adjudicating a specific case before it. State v. Kywanda F., 200 Wis.2d 26, 33, 546 N.W.2d 440, 444 (1996). As we have explained:

Competency is a narrower concept than subject matter jurisdiction and is grounded in the court's power to exercise its subject matter jurisdiction. 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.

Kohler Co. v. Wixen, 204 Wis.2d 327, 336-37, 555 N.W.2d 640, 644 (Ct.App.1996) (citation omitted). Failure to comply with a statutory mandate may result in a loss of competency to proceed in a particular case. See State v. Zanelli, 212 Wis.2d 358, 365, 569 N.W.2d 301, 304 (Ct.App.1997). We have also stated that a circuit court's "failure to follow plainly prescribed procedures which we consider central render[s] it incompetent ." Arreola, 199 Wis.2d at 441, 544 N.W.2d at 617.

However, noncompliance with a mandatory statute does not always require a loss of competence. Kywanda F., 200 Wis.2d at 33, 546 N.W.2d at 444. In Kywanda F., the supreme court reviewed Kywanda's contention that because failure to follow the time limits in a ch. 48 proceeding had been held to result in a loss of competence in Green Co. Dep't of Human Servs. v. H.N. ( In the Interest of B.J.N. ), 162 Wis.2d 635, 469 N.W.2d 845 (1991), and other cases arising under ch. 48, the same...