Feb. 12, 2020 – The Wisconsin Supreme Court has ruled (4-3) that a municipal court had jurisdiction over a drunk driving case charged as an ordinance violation even though the case should have been charged as drunk driving, second offense.
Municipal courts do not have jurisdiction over misdemeanor and felony cases, which are the jurisdiction of the circuit courts. First-offense, operating while intoxicated (OWI) cases are municipal ordinance violation cases, punishable by fine and/or license suspension. But a second-offense OWI is a misdemeanor, with potential jail time.
In 2005, Ries Hanson was convicted of a first-offense OWI in Cedarburg municipal court. The prosecutor did not know Hanson had a prior 2003 OWI conviction from Florida. As a second offense, the case should have proceeded in circuit court.
Thus, when Hanson was charged with another OWI in 2016, he argued that the 2005 OWI conviction should be vacated, because the municipal court did not have subject matter jurisdiction, pointing to the 2003 Florida conviction as a prior offense.
If the 2005 conviction was vacated, it would not count as a prior OWI. And the 2003 Florida OWI would not count as a prior offense for purposes of charging and sentencing in 2016, because of a 10-year look-back period for determining a second OWI offense.
That is, Wis. Stat. section 346.65(2)(am)2 imposes the applicable penalty if an individual has two drunk driving convictions “within a 10-year period.” In charging a third OWI offense, Wisconsin law counts all prior OWI convictions over a lifetime.
Under Hanson’s argument, then, the 2016 OWI charge would be a first OWI offense because the 2005 conviction would be vacated and the 2003 conviction would not count in determining whether Hanson’s OWI was a second offense within 10 years.
The circuit court in Ozaukee County agreed and vacated the 2005 conviction. The state supreme court agreed to hear the case directly, bypassing the appeals court.
Majority Rules
In State v. Hansen, 2020 WI 11 (Feb. 11, 2020), a four-justice majority reversed the circuit court, concluding the municipal court had subject matter jurisdiction to adjudicate the 2005 OWI charges against Hansen despite his undisclosed 2003 Florida conviction.
The majority distinguished subject matter jurisdiction from the court’s “competency” to hear the case, but concluded that Hansen forfeited any right to challenge the court’s competence by failing to raise the issue in 2005 and any time before his 2016 case.
“Accordingly, his 2005 and 2003 convictions were countable offenses in 2016 for purposes of Wisconsin statutory progressive penalty requirements, and we reverse the order of the circuit court,” wrote Chief Justice Patience Roggensack for the majority.
The majority noted that municipal courts have exclusive jurisdiction to adjudicate “alleged” ordinance violations, and the 2005 OWI was alleged as an ordinance violation. In other words, the court’s jurisdiction is tied to the allegations in the complaint.
“Confining ourselves to the four corners of the municipal citations that commenced the municipal court proceeding, Hanson was charged with two violations of a municipal ordinance that was in conformity with statutory provisions,” the chief justice wrote.
“Whether the alleged OWI violation was, or was not, preceded by a prior offense is not an element of an OWI ordinance violation, nor is it an element of an OWI criminal violation,” she wrote, noting that prior convictions are used to determine penalties.
The majority highlighted jurisdiction under federal law. “Federal court jurisdiction does not turn on facts unknown at the start of the proceeding, but rather, jurisdiction is invoked by unchallenged pleadings,” Chief Justice Roggensack explained.
Subject matter jurisdiction, the majority explained, is different than a court’s competence – which can be lost through defects in statutory procedure.
“Competence presupposes a court has subject matter jurisdiction and is about a court’s ability to exercise its jurisdiction in an individual case,” Roggensack wrote.
The 2016 OWI ordinance complaint, which did not allege a prior OWI that was not known to the prosecutor, may have affected the municipal court’s competence.
But Hansen forfeited his right to challenge the court’s competence to hear the case. “We conclude that, by his 11 years of silence, Hansen has forfeited any competence objection that could exist,” Chief Justice Roggensack wrote.
Dissent
Justice Brian Hagedorn, the newest justice on the court, wrote a dissenting opinion joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.
The dissenters concluded that “the municipal court lacked subject-matter jurisdiction to entertain the improperly charged OWI offense, and the judgment is null and void.”
Subject matter jurisdiction is limited to actions arising under ordinances, Justice Hagedorn noted, and such jurisdiction does not extend to criminal matters.
He highlighted prior cases in which an OWI was incorrectly charged and the judgment subsequently vacated based on lack of jurisdiction.
“[A] municipal court has no constitutional grant of power – i.e., no subject-matter jurisdiction – to entertain an action based on an OWI offense that statutorily should have been and must be charged as a second-offense OWI,” Justice Hagedorn wrote. “Any judgment or order entered in such an action is null and void.”
Hagedorn rejected the majority’s “pleading-establishes-jurisdiction-rule.” Under the state constitution, he wrote, “we must actually be dealing with an ordinance violation in order for the municipal court to have the power to hear the case.”
Hagedorn also rejected the majority’s reliance on federal jurisdiction cases. “Federal jurisdiction is challengeable in federal court regardless of the sufficiency of the pleading.
“The majority’s rule granting subject-matter jurisdiction through a pleading finds no support in Wisconsin or federal law,” Hagedorn’s dissent noted.
Concurrence
Justice Daniel Kelly wrote a concurring opinion, joined by Justice Rebecca Bradley. They joined the majority opinion but Kelly wrote separately to challenge the dissent.
Justice Kelly said Hanson was charged, convicted, and sentenced under a municipal ordinance violation, the type of action the municipal courts have jurisdiction to hear.
But the dissent’s analysis, Kelly argued, was based on a case that should have been brought, OWI seeking criminal penalties versus OWI seeking civil penalties.
“Under the dissent’s formulation, we are free to reject a pleading’s contents in favor of something we believe the proponent should have pled,” Justice Kelly wrote.
“That proposition, if we were to accept it, would reduce pre-trial practice (and, perhaps, every other aspect of a case to chaos. And the dissent offers neither reasoning nor authority to support such a revolutionary concept.”
