State ex rel. Skinkis v. Treffert

Decision Date09 May 1979
Docket NumberNo. 77-642,77-642
Citation280 N.W.2d 316,90 Wis.2d 528
PartiesSTATE ex rel. Joseph E. SKINKIS, Plaintiff in Error, v. Dr. Darold A. TREFFERT, Superintendent, Central State Hospital, Defendant in Error.
CourtWisconsin Court of Appeals

Howard B. Eisenberg, State Public Defender, Mark Lukoff, (argued), First Asst. State Public Defender, on brief, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, (argued), Asst. Atty. Gen., on brief, for defendant in error.



This matter is before the court on a writ of error to review an order issued by the circuit court for Dodge County quashing a writ of habeas corpus.

Joseph E. Skinkis (petitioner) was convicted on his plea of guilty to a charge of first degree sexual assault in violation of sec. 940.225(1)(d), Stats. Petitioner alleges that the statute is unconstitutionally vague and void on its face because it fails to give adequate notice of the conduct it prohibits and lacks a "core" of meaning. The circuit court held that the statute was not unconstitutionally vague as applied to petitioner, and that it did give him adequate notice that his conduct was illegal.


At the outset, the state contends that petitioner has waived his right to raise "any" constitutional challenge to the statute because he pleaded guilty to the charge. A number of recent Wisconsin cases lend initial credence to this argument, commencing with State v. Weidner, 47 Wis.2d 321, 177 N.W.2d 69 (1970). In that case, the court found that "as a general rule, the constitutionality of a statute cannot be questioned for the first time on appeal." Id. at 323, 177 N.W.2d at 70. The court noted the firmly established doctrine that a question of subject matter jurisdiction can never be waived, and therefore may be raised for the first time on appeal. Id., citing 4 C.J.S. Appeal and Error § 234, at 700-04 (1953). The court stated, however, at 324, 177 N.W.2d at 71: "Ordinarily, a challenge to the constitutionality of a statute does not involve subject matter jurisdiction."

The proposition that a defendant can waive the right to assert the unconstitutionality of the statute pursuant to which he is convicted by failing to make that claim at the trial court level has been repeated and expanded in three cases decided after Weidner. State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442 (1973); Flores v. State, 69 Wis.2d 509, 230 N.W.2d 637 (1975); Cheatham v. State, 85 Wis.2d 112, 270 N.W.2d 194 (1978). This proposition is in apparent conflict with earlier Wisconsin and federal case law which holds that an unconstitutional statute is a nullity which can confer no jurisdiction whatsoever upon a court. 1

These cases state the general rule as follows:

When a judgment of any court is based on an unconstitutional law it has no legitimate basis at all; it is not a judgment of a competent tribunal, within the meaning of . . . the Statutes, or of a "competent court" within the meaning of those words in . . . the Statutes. The law, so called, being unconstitutional there is no law in fact, hence no jurisdiction to give force thereto; no legitimate jurisdiction over the subject-matter or of the person, within the meaning of the decisions. Servonitz v. State, 133 Wis. 231, 236-37, 113 N.W. 277, 279 (1907).

An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void and cannot be a legal cause of imprisonment. . . . (I)f the laws (under which defendants were convicted) are unconstitutional and void, the circuit court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws. Ex Parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879).

An unconstitutional act of the Legislature is not a law. It confers no rights, imposes no penalty, affords no protection, is not operative, and in legal contemplation has no existence. John F. Jelke Co. v. Beck, 208 Wis. 650, 661, 242 N.W. 576, 581 (1932).

These cases have not been overruled, nor their holdings modified. They are not discussed or distinguished in Weidner, 2 Weso, 3 Flores 4 or Cheatham. 5 We have carefully examined the briefs filed in each of these four cases; in none of them were the earlier cases cited to the court.

The two lines of cases are difficult to reconcile. Weidner, and the cases which follow it, presume that ordinarily an attack on the constitutionality of a criminal statute does not go to subject matter jurisdiction. Servonitz, and the cases which follow it, presume that any constitutional attack on a statute raises a question of subject matter jurisdiction. The common ground between the two lines of cases is the unassailable proposition that an issue of subject matter jurisdiction cannot be waived by inadvertence or by deliberate failure to raise it at the trial court level, and that such an issue can always be raised as a matter of right for the first time on appeal or review by a higher court. 6

As the Wisconsin Supreme Court held in Harrigan v. Gilchrist, 121 Wis. 127, 224, 99 N.W. 909, 932 (1904), the court can and should reach an issue of subject matter jurisdiction even where neither party raises it. 7

A challenge to the jurisdiction of the trial court of the subject matter of the action is proper at any time; and, without the question being urged by counsel. It is not only proper for this court, but it is its duty, to make all investigations necessary to satisfy itself in regard thereto with reasonable certainty.

Decisions of the United States Supreme Court are in accord with this familiar principle, 8 and it was reasserted as recently as 1977 in Gelatt v. DeDakis, 77 Wis.2d 578, 254 N.W.2d 171 (1977). There the court held that the appellant had waived his right to assert "most" of his objections to receivership proceedings by failing to raise them at trial, but that he could not waive his claim that the statutes under which the proceedings had been conducted were "suspended" by the Federal Bankruptcy Act and thus " 'utterly null and void' " under United States Supreme Court holdings. Id. at 584, 254 N.W.2d 171.

(I)t is fundamental that parties cannot confer subject matter jurisdiction upon a court by waiver or consent. . . . If Gelatt is correct in asserting that the receivership provisions of ch. 128 are suspended, and if the jurisdiction of the circuit court depended thereon, subject matter jurisdiction would be absent. To that extent Gelatt's claims must be considered notwithstanding his participation in the receivership without complaint. 77 Wis. 578, 584-85, 254 N.W.2d 171, 176.

In a footnote to the passage quoted above, the court distinguished Weidner, supra, as follows:

The fact that subject matter jurisdiction is at issue also renders inapplicable the rule that this court will not generally consider the constitutionality of a statute if raised for the first time on appeal. 77 Wis.2d 578, 585 n. 1, 254 N.W.2d 171, 176 n. 1.

The question before us, in light of all the above-cited case law, is whether the constitutional challenge asserted by this petitioner raises a question of subject matter jurisdiction. If it does not, he has waived his right to raise it for the first time on appeal; if it does, even his plea of guilty cannot waive it. A key for the resolution of this question is found in State ex rel. Comrs. of Pub. Lands v. Anderson, 56 Wis.2d 666, 203 N.W.2d 84 (1973), and In re Interest of F. R. W. (a minor), 61 Wis.2d 193, 212 N.W.2d 130 (1973). In the former case, the court considered an equal protection challenge to a statute alleged to set forth arbitrary and unreasonable classifications in violation of the fourteenth amendment to the United States Constitution. In upholding the statute, the Wisconsin Supreme Court stated:

A statute, unconstitutional on its face, is void from its beginning to the end; but a statute unconstitutional in an application is only void as applied in a certain time and to the specific circumstances. 56 Wis.2d 666, 672, 203 N.W.2d 84, 87.

This statement was quoted with approval in In re Interest of F. R. W., supra, 61 Wis.2d at 200, 212 N.W.2d 130, which involved a claim that former sec. 48.18, Stats., the juvenile court waiver statute, was void on its face for vagueness. The trial court in that case had found the statute unconstitutionally vague, and had dismissed a petition to waive the juvenile into adult court for that reason. On appeal of that determination, the initial question was whether the order dismissing that petition was appealable, and thus whether the supreme court had jurisdiction of the appeal. The then applicable appeals statute provided that an order was appealable if it decided a question of jurisdiction. In holding that the order was appealable the supreme court observed:

When the juvenile challenged the constitutionality of sec. 48.18, Stats., as being void for lack of standards, he was, in effect, arguing that the juvenile court had no jurisdiction to act pursuant to that section. The juvenile court judge's determination that sec. 48.18 was unconstitutional was, in effect, a declaration that it had no jurisdiction to act pursuant to that section.

Since the juvenile court judge determined sec. 48.18 to be unconstitutional and void, it follows that she properly determined that she was without jurisdiction to act pursuant to the petition for waiver. 61 Wis.2d 193, 199-200, 212 N.W.2d 130, 133.

Both State ex rel. Comrs. of Pub. Lands and F. R. W. recognize that there are different types of constitutional attacks on statutes, some of which, if successful, would render the particular statute at issue void and inoperable, and some of which would not have that drastic effect. 9 F. R. W recognizes that where a statute upon which the trial court's...

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