City of Cedarburg v. Ries B. Hansen

2020 WI 11

• Court: Wisconsin Supreme Court
• Decided: February 11, 2020
• Docket: 2018AP001129
• Status: Published

Opinion

2020 WI 11

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP1129

COMPLETE TITLE: City of Cedarburg, Plaintiff-Appellant, v. Ries B. Hansen, Defendant-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: February 11, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 9, 2019

SOURCE OF APPEAL: COURT: Circuit COUNTY: Ozaukee JUDGE: Paul V. Malloy

JUSTICES: ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellants, there were briefs (in the court of appeal) filed by Jonathan G. Woodward and Houseman & Feind, LLP, Grafton. There was an oral argument by Jonathan 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. 2020 WI 11 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP1129 (L.C. No. 2017CV411)

STATE OF WISCONSIN : IN SUPREME COURT

City of Cedarburg,

Plaintiff-Appellant, FILED v. FEB 11, 2020 Ries B. Hansen, Sheila T. Reiff Clerk of Supreme Court Defendant-Respondent.

ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

APPEAL from an order of the Circuit Court of Ozaukee County.

Reversed.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case comes before

us on bypass, pursuant to Wis. Stat. § 809.60 (2017–18),1 from the

circuit court for Ozaukee County.2

1All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 2 The Honorable Paul V. Malloy of Ozaukee County presided. No. 2018AP1129

¶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 progressive

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

have 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

3The Mid-Moraine Municipal Court serves multiple municipalities in Washington County and Ozaukee County.

2 No. 2018AP1129

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 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

4He was arrested for operating a vehicle with both a prohibited alcohol concentration (PAC) and while intoxicated. Based on his plea, the municipal court convicted him of OWI and the PAC charge was dismissed. 5 Resp't br. at 1 n.2. 6 Id.

3 No. 2018AP1129

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 it was a second offense, and therefore, a

criminal offense outside of the municipal court's jurisdiction.

7 Exhibit E, R: 9-7.

4 No. 2018AP1129

¶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

(citing 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

8 The Honorable Steven M. Cain of Ozaukee County presided.

5 No. 2018AP1129

court's competence. See Booth, 370 Wis. 2d 595, ¶6 (citing Mikrut,

273 Wis. 2d 76, ¶7).

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. 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

9 Wisconsin is the only state where the penalty for a first- offense OWI is a civil forfeiture. Todd Richmond, Criminalizing 1st-time DUIs Is a Tough Sell in Wisconsin, Chi. Tribune (Jan. 13, 2019), https://www.chicagotribune.com/nation-world/ct-wisconsin- criminal-dui-20190113-story.html; Andrew Mishlove & Lauren Stuckert, Wisconsin's New OWI Law, Wis. Lawyer, June 2010, https://www.wisbar.org/NewsPublications/WisconsinLawyer/ Pages/Article.aspx?Volume=83&Issue=6&ArticleID=2045.

6 No. 2018AP1129

conviction for purposes of increasing statutory penalties. Wis.

Stat. § 343.307(1)(f); Wis. Stat. § 343.305(10).

¶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. at 718. 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 under the influence . . . ." Wis. Stat. § 967.055(1)(a).

¶18 Initially, municipal courts were not involved in

prosecuting OWI-related events. However, in 1957, the Wisconsin

legislature authorized municipalities to adopt such traffic

regulations, as long as the regulations were in "strict conformity

with the state statute." Id. at 719. The legislation required

that the municipality's penalty was a civil forfeiture. Id.

Problematically, at the time, violation of a state OWI traffic regulation was a crime. Id. Giving local governments the power 7 No. 2018AP1129

to enact non-criminal versions of state traffic regulations led to

inequality. Id. That is, under those provisions, a person whose

OWI violation was adjudicated by a municipal court would face a

civil penalty, whereas another person who engaged in the same

conduct would face a criminal penalty in circuit court. Id.

¶19 In 1971, the legislature tried to remedy that

inequality. Id. (citing § 66, ch. 278, Laws of 1971). First, it

decriminalized violations of several state traffic regulations,

including first-offense OWI. Id. at 720. Second, the law

"provided a uniform statewide procedure governing prosecutions

under both state statutes and conforming local regulations." Id.

2. Wisconsin Stat. § 343.307

¶20 Progressive penalties for OWI violations are set out in

Wis. Stat. § 346.6510 based on the application of Wis. Stat.

§ 343.307 to OWI-related events. Interpretation of § 343.307

underlies the specific competence question presented in this case,

but neither party directly engages in statutory interpretation

because each simply assumes a somewhat different interpretation and then argues from that interpretation.

¶21 Wisconsin Stat. § 343.307 provides in relevant part:

10Relevant to our discussion here, the minimum punishment for a first offense OWI is a $150 forfeiture, Wis. Stat. § 346.65(2)(am)1., while the minimum punishment for a third offense OWI is a $600 fine and 45 days in county jail. § 346.65(2)(am)3. The maximum punishment for a first offense OWI is a $300 forfeiture, while the maximum punishment for a third offense is a $2,000 fine and one year in county jail. § 346.65(2)(am)1. & 3.

8 No. 2018AP1129

(1) The court shall count the following to determine the length of a revocation under s. 343.30(1q)(b) and to determine the penalty under ss. 114.09(2) and 346.65(2):

(a) Convictions for violations under s. 346.63(1), or a local ordinance in conformity with that section.

. . . .

(d) Convictions under the law of another jurisdiction that prohibits . . . using a motor vehicle while intoxicated . . . . ¶22 Statutory interpretation begins with the language chosen

by the legislature. If the meaning is plain, we ordinarily stop the inquiry. Sorenson v. Batchelder, 2016 WI 34, ¶11, 368 Wis. 2d

140, 885 N.W.2d 362 (citing Kalal v. Circuit Court for Dane Cty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 119). Plain meaning

is assisted by the context in which the words are used.

Batchelder, 368 Wis. 2d 140, ¶11. We also interpret the statutory

language reasonably "to avoid absurd or unreasonable results."

Id.

¶23 Wisconsin Stat. § 343.307 plainly requires a court to

"count" prior convictions. The statute employs mandatory terms,

"shall count." The court is to do so in order "to determine" the length of revocation and other penalties that arise from OWI

convictions. There is nothing in the plain wording of § 343.307

that even implies that a court is precluded from counting an OWI

conviction to determine the length of revocation or other penalty.

¶24 However, Hansen contends that he has no OWI convictions

that can be counted when his 2016 OWI violation is adjudicated.

He argues that because the municipal court did not count his 2003 Florida conviction in 2005, the court adjudicated a matter for

9 No. 2018AP1129

which it had no subject matter jurisdiction. This lack of

jurisdiction, he argues, voids his 2005 conviction and causes his

2003 Florida conviction to occur more than 10 years before his

2016 violation, thereby preventing his 2003 Florida conviction

from having an effect on the penalty for his 2016 violation.

¶25 Hansen's argument fails because the municipal court had

subject matter jurisdiction in 2005, as we explain directly below.

Therefore, his 2005 conviction stands and it, together with his

2003 Florida conviction, must be counted in 2016 under the plain

terms of Wis. Stat. § 343.307. Furthermore, although Hansen's

silence gave him a lesser penalty in 2005, the progressive

penalties set out in Wis. Stat. § 346.65 were honored when Hansen

was charged in 2016 with OWI-third pursuant to § 343.307. Hansen's

silence in 2005 had an effect only on the municipal court's

competence in 2005. As we said in Mikrut, and explain more fully

below, a loss of competence "can be triggered by a variety of

defects in statutory procedure." Mikrut, 273 Wis. 2d 76, ¶12.

C. Invoking Municipal Court Jurisdiction ¶26 Article VII, Section 14 of the Wisconsin Constitution

provides, "All municipal courts shall have uniform jurisdiction

limited to actions and proceedings arising under ordinances of the

municipality." Wis. Const. art. VII, § 14. Accordingly, the

constitution confers jurisdiction on municipal courts to

adjudicate alleged ordinance violations. Wisconsin Stat.

§ 755.045(1) further provides that municipal courts have

"exclusive jurisdiction" to enforce their ordinances. Because it is foundational to jurisdiction of municipal courts, we interpret 10 No. 2018AP1129

the phrase "actions and proceedings arising under ordinances of

the municipality" in Article VII, Section 14.

¶27 It is undisputed that at the time the proceeding in

municipal court commenced, it was based on an alleged ordinance

violation. Stated otherwise, in 2005, the proceeding was commenced

by Hansen's civil traffic citations, which are the pleadings that

alleged that the OWI and PAC violations arose under an ordinance.

¶28 The means by which an action or proceeding arises is

central to our discussion. In another context, we have described

the phrase, "arising under," as conferring jurisdiction at the

time that "the plaintiff is able, from the nature of his case, to

set up in his declaration or complaint, some right or equity

against the defendant, arising under the constitution, laws or

treaties of the United States." Ableman v. Booth, 11 Wis. 517

(*498), 531-32 (*512) (1859). We further explained, "the facts

conferring jurisdiction, would, by the plaintiff's showing, appear

affirmatively upon the record, and the court might entertain the

case." Id. at 532. As Ableman shows, we concluded that "arising under" was tied to the facts that the pleading alleged.11

¶29 Confining ourselves to the four corners of the municipal

citations that commenced the municipal court proceeding, Hansen

was charged with two violations of a municipal ordinance that was

11Ableman was a one justice opinion. In 1859, the Wisconsin Supreme Court had only three justices. One justice recused and another dissented without filing an opinion. We note that the disagreement between the two justices was not with the portion of Ableman on which we rely.

11 No. 2018AP1129

in conformity with statutory provisions.12 Hansen contends that

subject matter jurisdiction in municipal court is defeated by his

2003 Florida conviction. 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. State v. McAllister, 107 Wis. 2d 532, 538, 319

N.W.2d 865 (1982) ("[W]e hold that the fact of a prior violation,

civil or criminal, is not an element of the crime of [OWI] either

in the ordinary sense of the meaning of the word element, i.e.,

the incidents of conduct giving rise to the prosecution, or in the

constitutional sense.").

¶30 A defendant's prior convictions determine his status as

a repeat offender, not his guilt. State v. Saunders, 2002 WI 107,

¶3, 255 Wis. 2d 589, 649 N.W.2d 263. However, the State must prove

a defendant's status as a prior offender at sentencing, where prior

convictions must be established beyond a reasonable doubt.13 Id.

12Wisconsin Stat. § 349.06(1)(a) states, in relevant part, that "any local authority may enact and enforce any traffic regulation which is in strict conformity with one or more provisions of chs. 341 to 348 and 350 for which the penalty for violation thereof is a forfeiture." Citations E626967-4 and -5 allege that Hansen twice violated Cedarburg ordinance 10-1-1a (in strict conformity with Wis. Stat. § 346.63(1)(a)) for operating while intoxicated and (in strict conformity with § 346.63(1)(b)) because of a "prohibited B.A.C. (breath)." 13 In a criminal OWI prosecution, the jury never hears about the number of prior offenses. Wis. JI——Criminal 2663 (2006). This does not pose constitutional problems because prior convictions are not facts that must be submitted to the jury. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). Indeed, in practice, 12 No. 2018AP1129

Importantly, the city attorney is not required to allege or prove

that the defendant had no prior offenses.

¶31 We also have said that "arising under" jurisdiction is

incredibly broad. Beck v. State, 196 Wis. 242, 244, 219 N.W. 197,

199 (1928) (explaining that a court has "jurisdiction to hear and

determine all questions arising under the provisions of the

inheritance tax laws"). We said, "[i]t is difficult to see how a

broader jurisdiction could be conferred upon any court upon a given

subject." Id. at 247. We then quoted the United States Supreme

Court describing jurisdiction as the "power to entertain the suit,

consider the merits and render a binding decision thereon; and by

merits we mean the various elements which enter into or qualify

the plaintiff's right to the relief sought." Id. (quoting General

Inv. Co. v. N.Y. Cent. R.R. Co., 271 U.S. 228 (1926)).

¶32 We conclude that the municipal court did not entertain

a suit for a second-offense OWI because there was no allegation of

a prior offense in the charging documents.14 Therefore, he was

defendants are often the ones asking that prior convictions not be introduced into evidence. The fear is that the jury will treat the prior convictions as establishing a propensity for the conduct in question. "The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror's ear, 'swift as quicksilver it courses through the natural gates and alleys of the body.'" R. v. Handy, [2002] 2 S.C.R. 908, ¶40 (Can.) (quoting Hamlet, Act I, Scene v, 11). 14We also note that according to Hansen's argument, neither a defendant nor defense counsel has any requirement to inform a court about prior offenses. Indeed, a defense attorney may have an ethical obligation to safeguard information about prior convictions. Revised Wis. Ethics Op. E-86-06 (Dec. 29, 2018) at 4 n.9 ("Counsel's knowledge of the client's prior conviction is 13 No. 2018AP1129

prosecuted for ordinance violations shown on the civil citations

he was issued.

¶33 The history of the 1977 constitutional amendment that

created Article VII, Section 14 of the Wisconsin Constitution is

instructive. The amendment process started with the passage of

1975 Joint Resolution 13. A summary and analysis of the resolution

explained:

The proposed amendment would limit the jurisdiction of municipal courts to actions and proceedings arising under the ordinances of the municipality in which established. Presently, municipal courts could constitutionally be given jurisdiction equal to that of circuit courts, although municipal courts are statutorily restricted to hearing cases involving ordinance violations. Jim Fullin, Summary and Analysis of 1975 Enrolled Joint Resolution

13 Relating to the State Court System 4 (1976) (on file at the

David T. Prosser, Jr. Wisconsin State Law Library). The reference

to "hearing cases involving ordinance violations" is telling. A

municipal court is hearing such a case when that is what has been

alleged in a charging document, such as a civil citation for OWI.

information that relates to the representation and is protected by SCR 20:1.6(a)."). The Ethics Opinion does, however, explain that a defense lawyer "has a duty not to provide false information to the court" and discusses counsel's obligations under SCR 20:3.3(a)(1) when the "court directly asks counsel or the defendant about the prior record." In those situations, "counsel may not knowingly report an incorrect number of prior OWI convictions." Invoking subject matter jurisdiction should not depend on facts that no party has an obligation to bring to the court's attention.

14 No. 2018AP1129

¶34 In 1973, a similar attempt had been made at reforming

municipal courts. The proposal was summarized by a Report from

the Wisconsin Legislative Council:

In present section 2, the Legislature is authorized to create municipal courts with trial powers in their municipalities equal to that of the circuit courts. Assembly Joint Resolution 5 provides that the Legislature may provide for municipal courts, but under amended section 14, the trial jurisdiction of these courts as provided by law may not be greater than the trial of ordinance violations, state traffic offenses and forfeiture actions. Wis. Legislative Council, Report to the 1973 Legislature on Court

Reorganization 10–11 (Mar. 1973) (on file at the David T. Prosser,

Jr. Wisconsin State Law Library).

¶35 Of particular importance is the report's reference to

"trial of ordinance violations." A trial, by definition, is a

fact-finding mission to determine the truth of allegations in a

pleading. Trial, Black's Law Dictionary (11th ed. 2019) (defining

a trial as "[a] formal judicial examination of evidence and

determination of legal claims in an adversary proceeding"). It

should go without saying that a municipal court trial can occur only after jurisdiction arises under Article VII, Section 14.

¶36 Federal case law has persuasive value in defining

"arising under" because both the United States Constitution and

federal statutes use the phrase, "arising under."15 At oral

15U.S. Const. art. III, § 2 ("The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ."); 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the 15 No. 2018AP1129

argument, Hansen argued by analogizing to federal case law on

jurisdictional facts. Specifically, Hansen referred us to the

United States Supreme Court's decision in Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006), which we conclude supports our conclusion

that municipal court subject matter jurisdiction is invoked by the

pleadings.

¶37 Arbaugh concluded that "[a] plaintiff properly invokes

§ 1331 [federal question] jurisdiction . . . when she pleads a

colorable claim 'arising under' the Constitution or laws of the

United States." Id. at 513 (citing Bell v. Hood, 327 U.S. 678,

681–85 (1946)). Arbaugh explained that there is a difference

between invoking and establishing jurisdiction: the United States

Constitution establishes jurisdiction when a plaintiff's case

arises under a federal law and the plaintiff invokes that

jurisdiction. Arbaugh, 546 U.S. at 513. Congress can make certain

facts a prerequisite to a claim arising under federal law, e.g.,

the amount-in-controversy threshold in diversity actions.16 Id.

at 515–16 (citing 28 U.S.C. § 1332). These facts are distinguished from facts going to the merits of the case. Id. at 513–14.

United States."). 16The United States Supreme Court concluded that Congress must use clear language to create a prerequisite fact necessary to jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006) (internal citations removed) (modifications in the original) ("Given the 'unfair[ness]' and 'waste of judicial resources' entailed in tying the employee-numerosity requirement to subject- matter jurisdiction, we think it the sounder course to refrain from constricting [U.S.C.] § 1331 or Title VII's jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3), and to leave the ball in Congress' court.").

16 No. 2018AP1129

¶38 However, even when Congress creates a prerequisite

jurisdictional fact, it does not necessarily follow that the fact's

non-existence when the merits of the action are tried negates

subject matter jurisdiction that has been invoked by the

allegations in the pleadings. Diversity jurisdiction is an

example. Currently, the amount-in-controversy must be greater

than $75,000. 28 U.S.C. § 1332(a). If a plaintiff invokes

diversity jurisdiction, the defendant can contest the amount-in-

controversy with the possibility of proving subject matter

jurisdiction is not established. However:

[I]f the defendant does not lodge a challenge, the plaintiff's good-faith allegation controls, even if the amount in controversy does not, in fact, exceed the jurisdictional threshold. The parties' pleading choices can thus establish jurisdiction even when the amount in controversy is, in fact, below the threshold. Scott Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619, 631

(2017). It is not as if, should the jury return a verdict for

less than $75,000, the lack of finding for the jurisdictional

amount negates the federal court's jurisdiction. Federal court

jurisdiction does not turn on facts unknown at the start of the

proceeding, but rather, jurisdiction is invoked by unchallenged

pleadings.17

17Federal courts allow subject matter jurisdiction to be raised for the first time on appeal. Arbaugh, 546 U.S. at 514 (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). However, as already explained, an unchallenged good-faith allegation can be sufficient to invoke jurisdiction. And once jurisdiction is invoked and the time of direct appeal has passed, the defendant has no valid objection.

17 No. 2018AP1129

¶39 Other federal cases also have concluded that "arising

under" jurisdiction is invoked by the pleadings. In Louisville &

Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908), the United

States Supreme Court explained, "It is the settled

interpretation . . . that a suit arises under the Constitution and

laws of the United States only when the plaintiff's statement of

his own cause of action shows that it is based upon those laws or

that Constitution."18 Id. at 152 (emphasis added); see also Johnson

v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (quoting

Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir. 1998)

(modifications in original) ("If Johnson presents 'a non-frivolous

claim under federal law; no more is necessary for subject-matter

jurisdiction. A plaintiff's inability to demonstrate that the

defendant [is an "employer"] is just like any other failure to

meet a statutory requirement. There is a gulf between defeat on

the merits and a lack of jurisdiction.'")); Kulick v. Pocono Downs

Racing Ass'n, Inc., 816 F.2d 895, 897–98 (3d Cir. 1987) ("Under

either section [of federal law], a court has jurisdiction over the dispute . . . . Once the plaintiff has met [a] threshold pleading

18 We have discussed federal case law in this opinion for the sole purpose of interpreting the phrase, "arising under." We note that federal law has permitted jurisdictional challenges on appeal; however, generally, it does not permit collateral attacks on subject matter jurisdiction. See Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 375–78 (1940); see also Michael J. Edney, Comment, Preclusive Abstention: Issue Preclusion and Jurisdictional Dismissals after Ruhrgas, 68 U. Chi. L. Rev. 193, 196–97 (2001) ("If the rendering court never addressed the question of subject matter jurisdiction, and vertical appeals have been exhausted, then any objection to subject matter jurisdiction has been waived.").

18 No. 2018AP1129

requirement, however, the truth of the facts alleged in the

complaint is a question on the merits, as is the legal question

whether the facts alleged establish a violation.").

¶40 Legal scholars have described "arising under"

jurisdiction similarly. As one wrote:

[T]he "arising under" (or "brought under" or "commenced to redress a deprivation of") jurisdictional grants do not ask historical factual questions. They ask only for a prediction from the court: Does it appear (based solely on the pleadings) that the plaintiff seeks relief created or made possible by a federal enactment? Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev.

643, 701 (2005). The same scholar has also stated, "[a] court

measuring its subject mat[t]er jurisdiction cannot look anywhere

other than the affirmative claims properly stated in the

complaint." Howard M. Wasserman, Jurisdiction, Merits, and

Substantiality, 42 Tulsa L. Rev. 579, 590 (2007); see also Brianna

J. Fuller, Developments in the Law, III. Federal Question

Jurisdiction, 37 Loy. L.A. L. Rev. 1443, 1474 (2004) (citing The

Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913))

(modifications in original) ("If done by the book, the court should

look at the allegations in the complaint to see if they would raise

a substantial federal question as alleged. This should be made

independently of 'whether the claim ultimately [would] be held

good or bad.'").

¶41 We conclude that Cedarburg invoked municipal court

subject matter jurisdiction conferred by Article VII, Section 14

of the Wisconsin Constitution by the pleadings (civil traffic citations) that alleged violations that arose under municipal

19 No. 2018AP1129

ordinances. Stated otherwise, the proceedings on the traffic

citations were grounded in allegations that Hansen operated a

vehicle while intoxicated in violation of municipal ordinance.

¶42 We discussed the impact of municipal and state OWI

charges on circuit court subject matter jurisdiction in Rohner.

Rohner, 108 Wis. 2d 713. Paul Rohner was first convicted for OWI

in 1979. Id. at 715. In 1980, he was cited for OWI under a county

ordinance. Id. The case proceeded in circuit court, but pursuant

to an alleged violation of a county ordinance. Id. When it went

to trial, Rohner moved to dismiss the proceedings on the ground

that the court lacked subject matter jurisdiction to adjudicate an

ordinance violation. Id. The circuit court recognized that Rohner

had a prior OWI conviction, but concluded that, nonetheless, it

had jurisdiction to proceed on the 1980 OWI ordinance violation.

¶43 We disagreed. Id. at 720–21. We explained "that the

[S]tate has the exclusive authority to prosecute second offenses

for drunk driving" under State statutes, so Rohner could not be convicted of violation of a county ordinance. Id. at 722. "The

legislative goal of providing uniform traffic enforcement would be

subverted if local governments were allowed to punish second

offenders with first offense penalties." Id. at 720. We held

that a county ordinance "can have no application to a second or

subsequent offense." Id. at 722.

¶44 Over time, our holding in Rohner was understood as

imposing a duty on city attorneys and prosecutors who had knowledge of a prior OWI conviction to correctly charge subsequent OWIs. In 20 No. 2018AP1129

one such case, Albert R. Jensen was undercharged with a first-

offense OWI in municipal court. City of Kenosha v. Jensen, 184

Wis. 2d 91, 93, 516 N.W.2d 4 (Ct. App. 1994). Jensen pled no

contest, and the municipality was unaware of Jensen's prior

offense. Id. Subsequently, the City realized it had made a

charging error, and it asked the municipal court to vacate the

judgment and dismiss the municipal citation without prejudice.

Id. at 93-94. The municipal court did so, permitting the State to

proceed criminally against Jensen for his second OWI. Jensen

objected, saying the municipal court lacked the ability to do so.

Id. at 94. The court of appeals agreed with the City of Kenosha

and held that the municipal court had the inherent authority to

vacate its judgment. Id. at 98. However, the court of appeals

also opined:

We are not holding that in every OWI-BAC case where the municipal attorney finds out that an offense is actually a second or subsequent offense within five years, the municipal attorney must seek vacation of the municipal judgment before criminal proceedings can ensue. Quite the contrary, the State may proceed regardless of whether the municipal attorney or the municipal court first acts. As the State points out in its amicus curiae brief, a municipal court does not have subject matter jurisdiction to try and convict a criminal operating while intoxicated. Any such municipal action is null and void [under Rohner]. Id. at 98-99.

¶45 Notably, "[a]t the time we decided Rohner, our case law

did not clearly distinguish between the concepts of subject matter

jurisdiction and competenc[e]." Booth, 370 Wis. 2d 595, ¶14 (citing Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8, 349

21 No. 2018AP1129

Wis. 2d 234, 833 N.W.2d 665). Therefore, we labeled the concern

one of subject matter jurisdiction in Rohner, as did the court of

appeals in Jensen.

¶46 In Booth, we took the opportunity to clarify the legal

foundation of Rohner. Booth, 370 Wis. 2d 595, ¶14. The facts of

Booth are highly similar to the facts of the matter now before us,

except that the undercharged offense in Booth proceeded in circuit

court. Id., ¶¶2–5. After a thorough discussion, we concluded

that our subsequent case law on competence better explained the

results in Rohner. Id., ¶14. We also withdrew language from all

decisions that suggested otherwise. Id. This withdrawal included

language in Jensen that stated, "a municipal court does not have

subject matter jurisdiction to try and convict a criminal operating

while intoxicated." Jensen, 184 Wis. 2d at 99. It was competence

that the municipal court lacked in Jensen, not subject matter

jurisdiction.

¶47 The reasoning in our decision in Mikrut is important to

review here because in Mikrut, we detailed the significant difference between subject matter jurisdiction and competence. We

said, "If a court has the power, i.e., subject matter jurisdiction,

to entertain a particular type of action, its judgment is not void

even though entertaining it was erroneous and contrary to the

statute." Mikrut, 273 Wis. 2d 76, ¶14. We said that a loss of

competence "can be triggered by a variety of defects in statutory

procedure." Id., ¶12. Furthermore, "a lack of competency does

not negate subject matter jurisdiction or nullify the

22 No. 2018AP1129

judgment . . . . Lack of competency is not 'jurisdictional' and

does not result in a void judgment." Id., ¶34 (citation omitted).

¶48 Upon our review of Mikrut in Booth, we reasoned: "the

proper characterization of the circuit court's deficiency in

Rohner was loss of circuit court competency to proceed to judgment

rather than negation of subject matter jurisdiction." Booth, 370

Wis. 2d 595, ¶14. We referred to Mikrut as teaching that

"noncompliance with statutory mandates affects only a court's

competency and will never affect its subject matter jurisdiction."

¶49 To explain further, subject matter jurisdiction and

competence are related but distinct concepts. "Subject matter

jurisdiction . . . 'refers to the power of a . . . court to decide

certain types of actions.'" Id., ¶7 (quoting State v. Smith, 2005

WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508). In other words,

subject matter jurisdiction is about the type or category of case

brought. Competence presupposes a court has subject matter

jurisdiction and is about a court's ability to exercise its jurisdiction in an individual case. As we explained in Booth:

A circuit court's ability to exercise its subject matter jurisdiction in individual cases . . . may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction. The failure to comply with these statutory conditions does not negate subject matter jurisdiction but may under certain circumstances affect the circuit court's competency to proceed to judgment in the particular case before the court. A judgment rendered under these circumstances may be erroneous or invalid because of the circuit court's loss of competency but is not void for lack of subject matter jurisdiction.

23 No. 2018AP1129

Booth, 370 Wis. 2d 595, ¶12 (quoting Mikrut, 273 Wis. 2d 76, ¶2).

An objection to subject matter jurisdiction cannot be forfeited.

Booth, 370 Wis. 2d 595, ¶1. However, an objection to a court's

competence can be forfeited if it is not raised in a timely manner.

¶50 Hansen argues that our rationale in Booth rested on the

circuit court's plenary subject matter jurisdiction. Id., ¶¶8,

12. He argues that the circuit court could have heard the

proceeding in Booth if the OWI had been correctly charged as a

second-offense. Id. Hansen contends however, that municipal

courts are courts of limited jurisdiction, and therefore, the

reasoning in Booth does not apply. He says that had his 2005

violation been correctly charged, the municipal court could not

have heard it. However, it was charged based on the traffic

citations which were the pleadings that commenced the action.

Hansen knew that he had a prior OWI, but he chose to admit to OWI-

first and take advantage of the municipal court action.

¶51 In summary, we are unpersuaded that the municipal court lacked subject matter jurisdiction. Hansen's contention goes only

to an initial inability to follow Wisconsin statutes that require

progressive penalties for OWI-related offenses. Accordingly,

under the facts of this case, only the municipal court's competence

was affected by the pleading.

24 No. 2018AP1129

D. Forfeiture of Competence Objections

¶52 Having concluded that the municipal court's subject

matter jurisdiction was properly invoked by the pleadings but that

the municipal court may have lacked competence, we next address

whether Hansen has forfeited his competence-based objection. We

conclude that he has.

¶53 The facts of this case are similar to Booth. The

defendant in Booth waited 22 years to object. Id., ¶25. We

suggested the delay and subsequent objection was "an attempt to

play fast and loose with the court system, which is something this

court frowns upon." Id. (citing State v. Petty, 201 Wis. 2d 337,

346–47, 548 N.W.2d 817 (1996)). For that reason, we did not

exercise our inherent authority to vacate the judgment. Booth,

370 Wis. 2d 595, ¶25. Here, Hansen waited more than a decade to

seek vacatur. We see no legal or equitable distinction between

the passage of time in this case and the passage of time in Booth.

Furthermore, we need not decide precisely when Hansen forfeited an

objection to competence, because he clearly did forfeit. III. CONCLUSION

¶54 We conclude that the 2005 pleadings filed invoked the

municipal court's subject matter jurisdiction, which was granted

by Article VII, Section 14 of the Wisconsin Constitution.

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 progressive OWI regulations were not followed in 2005, the municipal court 25 No. 2018AP1129

would have lacked only competence, not subject matter

jurisdiction. Id., ¶14.

¶55 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, both 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.

By the Court.—The decision of the circuit court is reversed.

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¶56 DANIEL KELLY, J. (concurring). I join the majority's

opinion in its entirety. The sole purpose of my concurrence is to

address the dissent's deft, but pointless, reduction of a straw

man to a fine powder.

¶57 This case calls for us to determine whether the municipal

court had subject matter jurisdiction over the case it heard, and

if so, whether it was competent to hear it. When we talk about

subject matter jurisdiction, we are addressing a court's ability

to hear a particular type of case. City of Eau Claire v. Booth,

2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738 (Subject matter

jurisdiction "refers to the power of a court to decide certain

types of actions." (quoted source omitted)). When we talk about

competence, on the other hand, we are asking whether a court should

have heard a specific case. Id., ¶21 ("[A] failure to comply with

a statutory mandate pertaining to the exercise of subject matter

jurisdiction may result in a loss of the circuit court's competency

to adjudicate the particular case before the court." (quoted source

omitted)). Here, we must determine whether the municipal court had subject matter jurisdiction over the type of case brought

against Mr. Hansen, and whether it was competent to hear this

specific case.

¶58 The analytical engine powering the dissent is its

failure to keep these concepts distinct. But perhaps more

surprising than that is the point at which the muddling of the two

began. The dissent insists that we may not analyze the municipal

court's subject matter jurisdiction with respect to the case it actually heard. Instead, it says, we are supposed to act as if

1 No. 2018AP1129.dk

the municipal court heard something it refers to as a "second-

offense OWI" and then perform the jurisdictional analysis on that

non-existent case. Based on its analysis of this case that was

not, the dissent concludes that the municipal court did not have

subject matter jurisdiction to hear the actual case it did hear.

So its premise is a straw man: "[A] municipal court lacks the

power to sentence someone convicted of a subsequent OWI offense

precisely because that subsequent OWI offense cannot be an

ordinance violation, no matter how it is pled." Dissent, ¶20 n.8.

¶59 Why is this a straw man? Because Mr. Hansen was not

charged with, convicted of, or sentenced for, a "second-offense

OWI."1 Instead, the City cited Mr. Hansen for violating the

1 The dissent embedded a pretty significant error of law in its straw man, to wit, its belief that there is something known as a "second-offense OWI." There isn't. Nor is there any such thing as a "first-offense OWI." The substantive offense known as "OWI" exists without reference to the number of prior OWI convictions. Here's why.

The definition of an OWI offense appears in Wis. Stat. § 363.63, and contains no reference to prior OWI convictions; the penalties associated with that offense (which do depend on the number of prior OWI convictions) may be found in Wis. Stat. § 346.65. The penalty, however, is not an element of the substantive offense. State v. Wideman, 206 Wis. 2d 91, 104, 556 N.W.2d 737 (1996) ("A prior offense is an element of Wis. Stat. § 346.65(2)(c), the OWI penalty enhancement statute, rather than of Wis. Stat. § 346.63(1), the substantive crime charged."). In fact, the penalties are entirely distinct from the substantive offense: "[Wis. Stat. §] 346.63(1) . . . defines the offense of driving while intoxicated; it does not state the sentencing penalty and it does not state the term of revocation. The penalty provisions, "[Wis. Stat. §] 346.65 . . . are entirely independent of the provision that defines the offense." State v. Banks, 105 Wis. 2d 32, 42, 313 N.W.2d 67 (1981) (quoting and agreeing with Criminal Law; Drunk Driving, 69 Wis. Att'y Gen. Op. 49 (1980)). So, as a matter of law, there is no such thing as a "second-offense OWI," as the dissent seems to think.

2 No. 2018AP1129.dk

municipality's ordinance adopting the statutory prohibition

against operating a motor vehicle while "[u]nder the influence of

an intoxicant" ("OWI"). Wis. Stat. § 346.63(1)(a) (2005-06) (as

adopted by the City; see Cedarburg, Wisconsin Municipal Code § 10-

1-1(a) (2005)). The City prosecuted the ticket in municipal court

by presenting evidence that Mr. Hanson committed an OWI ordinance

violation. Upon Mr. Hanson's plea to an OWI ordinance violation,

the municipal court entered judgment against him for that ordinance

violation. The case ended with the municipal court imposing a

forfeiture for an OWI ordinance violation.

¶60 But for the dissent, none of this matters in determining

what type of case the municipal court heard. Apropos of quite

literally nothing, the dissent believes the municipal court wasn't

really hearing an OWI ordinance violation. Instead, contra the

entirety of the record, the dissent assumes the municipal court

was hearing a "second-offense OWI." Even if such a violation

existed (it doesn't), the dissent says it wouldn't matter what

offense the prosecuting agency actually presented to the municipal court, or what evidence the court heard, or what judgment it

Although the majority uses the term "first-offense OWI" and "second-offense OWI" as harmless shorthand references, when the dissent uses them it's clear they are driving its legal analysis. So, for example, it says that "[a] first-offense OWI citation for someone with a prior countable OWI offense is a violation that does not exist at law." Dissent, ¶29 n.9 (emphasis in original). I suppose it's true that there is no such thing as a first-offense OWI, but only because there is no such thing as any OWI offense defined by the number of prior OWI convictions (or lack thereof). An OWI offense stands alone, without reference to or reliance on the defendant's prior OWI convictions. This error suffuses the dissent's reasoning so thoroughly that it would be cumbersome to call it out each time it occurs. So I won't.

3 No. 2018AP1129.dk

entered, or which sanctions it imposed.2 Instead, it believes the

case is properly defined and categorized solely by the defendant's

actions, "no matter how it is pled." Dissent, ¶20 n.8.

¶61 "No matter how it is pled"? It is hornbook law that the

pleadings define, form, and create the claims the court

adjudicates: "The pleading is to define the pleader's position in

the pending litigation." Hansher v. Kaishian, 79 Wis. 2d 374,

385, 255 N.W.2d 564 (1977) (emphasis added). The pleadings "frame

the issues to be resolved in the action . . . ." Id. (emphasis

added). "The function of pleadings is . . . creation of the

issue(s) to be tried." Knapke v. Grain Dealers Mut. Ins. Co., 54

Wis. 2d 525, 533, 196 N.W.2d 737 (1972) (emphasis added).

¶62 Pleadings are not protean documents that naturally

conform themselves to events as they actually occurred. Which is

why it is possible for a plaintiff to suffer judgment on the

pleadings even though the case could have gone forward if the

plaintiff had pled the case differently. See, e.g., Tietsworth v.

Harley-Davidson, Inc., 2007 WI 97, ¶61, 303 Wis. 2d 94, 735 N.W.2d 418 (plaintiff could not proceed on viable contract claims

because the pleading contained only tort claims); Piaskoski &

Assocs. v. Ricciardi, 2004 WI App 152, ¶29, 275 Wis. 2d 650, 686

N.W.2d 675 (plaintiff could not proceed on claims not contained in

2 "The question in this case is whether a municipal court had subject-matter jurisdiction over an OWI offense that was brought as an ordinance violation in municipal court when it should have been criminally charged as a second-offense OWI in circuit court. The majority says yes, and establishes a new rule: As long as an ordinance violation was pled, a municipal court's subject-matter jurisdiction is established. Respectfully, this is wrong." Dissent, ¶1.

4 No. 2018AP1129.dk

the pleadings). For good or ill, a party is the master of its

pleadings and courts don't have the authority to act as though

they are not. See, e.g., Poeske v. Estreen, 55 Wis. 2d 238, 243

n.3, 198 N.W.2d 625 (1972) (In "challenges to pleadings the court

shall not '. . . give consideration to extrinsic evidence or

matters outside of the pleading or pleadings and not incorporated

or made part thereof . . . .'" (quoted source omitted)). So when

the dissent casually backhands the pleadings in this case with its

"no matter how it is pled" comment, it is ignoring the nature,

function, and role of pleadings in our courts. 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. 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.

¶63 Perhaps the dissent's insistence that we ignore the

pleadings' content grew out of the close similarity between the actual case we are considering and the case that should have been

brought against Mr. Hansen (an OWI violation seeking civil

penalties versus an OWI violation seeking criminal penalties).

The dissent's logical error will fluoresce if we observe how it

would function when the charges are not so similar. Suppose that,

instead of driving drunk, someone (let's call him Mr. Smith) robbed

an individual as he was walking through a Cedarburg park. Suppose

further that, instead of arresting Mr. Smith for robbery, the police cited him for disorderly conduct (a violation of Cedarburg's

5 No. 2018AP1129.dk

ordinances). And finally, suppose that the municipal court heard

the disorderly conduct case, entered judgment against Mr. Smith

for disorderly conduct, and assessed a fine allowed by the

ordinances for such a violation. Now, years later, Mr. Smith

appears before us claiming——just like Mr. Hansen——that the

judgment against him is null and void because the municipal court

lacked subject matter jurisdiction over his case.

¶64 If we were to employ the dissent's reasoning, Mr. Smith

would succeed. He committed robbery, he would tell us, not

disorderly conduct. So when the municipal court heard the

disorderly conduct case, it was actually purporting to exercise

jurisdiction over a robbery case. And because municipal courts

have no subject matter jurisdiction over robbery cases, the

judgment against him must be a nullity. The dissent's analysis

would require the conclusion that "a municipal court lacks the

power to sentence someone convicted of a [robbery] precisely

because a [robbery] cannot be an ordinance violation, no matter

how it is pled." Dissent, ¶20 n.8 (creative editing added). ¶65 Now, it is certainly true that if the City (in my

hypothetical) had pled a robbery instead of disorderly conduct,

the municipal court would have rightly dismissed the complaint for

lack of subject matter jurisdiction. But must it also dismiss the

case when the City pleads disorderly conduct instead of robbery?

Of course not. There is no legal theory in our canon authorizing

a court to pretend the plaintiff had pled something it had not,

and plenty that forbids the court from doing so. Poeske, 55 Wis. 2d at 243 n.3; Tietsworth, 303 Wis. 2d 94, ¶61; Ricciardi,

6 No. 2018AP1129.dk

275 Wis. 2d 650, ¶29. Therefore, the disorderly conduct claim

could still proceed because municipal courts have subject

jurisdiction over such offenses even though what Mr. Smith had

"actually" done was commit a robbery. The dissent's reasoning

would hold that the municipal court in my hypothetical was really

hearing a robbery case because the reference point is not the

pleadings or court proceedings, but what it knows about what Mr.

Smith "actually" did. For jurisdictional purposes, however, the

only things that matter are what the complaint pleads, what the

municipal court hears, what judgment it renders, and what

consequences it imposes.3 If each of those elements fits within

"actions and proceedings arising under ordinances of the

municipality,"4 the municipal court is properly exercising subject

matter jurisdiction——even when the defendant's conduct, taken as

a whole, also qualifies as something over which the municipal court

3 The dissent says this is inconsistent with the court's opinion that the pleadings, alone, establish jurisdiction: "I have no idea how both rules can be true. Either subject-matter jurisdiction is established based on the pleading, and is not challengeable afterwards, or not." Dissent, ¶29 n.10. It does not appear the dissent has accounted for ¶38 n.17 and ¶39 n.18 of the majority opinion, both of which acknowledge that subject matter jurisdiction is subject to challenge after pleading. I have also addressed the evidence, judgment, and penalty phases of the case in the interest of comprehensiveness. The majority opinion contains no suggestion that it would disagree with the proposition that the municipal court must remain within its constitutionally- conferred jurisdictional boundaries throughout the proceedings. 4 Wis. Const. art. VII, § 14.

7 No. 2018AP1129.dk

has no subject matter jurisdiction. So the offense the charging

agency pleads is not just important, it is nigh on dispositive.5

¶66 The dissent says this illustration is a mere curiosity

because "a person can validly be charged with a disorderly conduct

ordinance violation regardless of whether a more serious charge is

warranted, but cannot be given a citation for first-offense OWI

unless it is in fact a first-offense OWI."6 Dissent, ¶29 n.10. I

could not have crystallized the dissent's logical hitch better

than that statement. Yes, Mr. Smith could be cited for disorderly

conduct even though all the facts add up to robbery (a crime over

which the municipal court has no subject matter jurisdiction), but

only because pleadings define the offense the court is

adjudicating. And in my illustration the pleadings described an

offense over which a municipal court has subject matter

jurisdiction. It must also be true, therefore, that if the

pleadings describe an OWI ordinance violation, then the municipal

court has jurisdiction over the case even though the totality of

the facts add up to an offense for which criminal sanctions are available. That is to say, what is true for the first clause in

the quote must also be true for the second clause. So the quote

evidences a logical glitch that is causing the dissent to reject

the pleading's definitional power in the OWI context even as it

accepts it in my illustration.

It is only "nigh on" dispositive because, as already noted, 5

we must also account for the evidence produced and the court's disposition of the matter.

Once again, the dissent's analysis depends on its belief in 6

an offense known as "first-offense OWI."

8 No. 2018AP1129.dk

¶67 Now we arrive at the only meaningful distinction between

my illustration and Mr. Hansen's case——the question of a

prosecutor's charging discretion. In most circumstances, a

prosecutor has the discretion to charge an offense less serious

than the facts warrant. Sears v. State, 94 Wis. 2d 128, 133, 287

N.W.2d 785 (1980) ("In addition to his discretion in determining

whether or not to prosecute, the prosecuting attorney is afforded

great latitude in determining which of several related crimes he

chooses to file against the defendant."). But our OWI statutes

make no such allowance. If a defendant has committed a prior

countable OWI offense, the prosecutor may not pursue an ordinance

violation, but must instead charge the OWI offense in circuit court

so criminal penalties can be imposed. Booth, 370 Wis. 2d 595, ¶23

("[C]riminal penalties are required of all OWI convictions

following an OWI first-offense conviction."). So let's account

for that distinction and see if it makes a difference. Let's say

the Legislature enacts a statute providing that when the facts add

up to a robbery the defendant may not be tried for a disorderly conduct ordinance violation, but must instead be criminally

charged. That puts my illustration on all fours with this case:

The municipal court has subject matter jurisdiction over both

disorderly conduct ordinance violations as well as OWI ordinance

violations; the municipal court has no jurisdiction over either

robbery or criminal sanctions for OWI offenses; and the prosecutor

has no discretion to charge ordinance violations when the

defendant's actions add up to either robbery or an OWI offense punishable by criminal sanctions. The dissent says that under

9 No. 2018AP1129.dk

these circumstances the municipal court has no subject matter

jurisdiction to hear an OWI ordinance violation, and presumably

would say the same about the disorderly conduct ordinance

violation. But the only difference between my illustration as

originally constructed and as modified is a statute removing a

prosecutor's charging discretion. So the question is whether a

statute can oust the municipal court's subject matter

¶68 The answer, quite obviously, is that it cannot inasmuch

as a statute cannot revoke what a constitution grants. State ex

rel. Ozanne v. Fitzgerald, 2011 WI 43, ¶71, 334 Wis. 2d 70, 798

N.W.2d 436 (Prosser, J., concurring) ("Constitutional commands

cannot be changed at the whim of the legislature; statutory

provisions may."). The source of subject matter jurisdiction for

both municipal courts and circuit courts is the Wisconsin

Constitution,7 a source impervious to statutory modifications. We

have already recognized this foundational principle in the OWI

context, where we said that restricting a prosecutor's charging discretion does not, and cannot, affect a court's subject matter

jurisdiction: "[N]oncompliance with statutory mandates [that is,

the charging decision] affects only a court's competency and will

never affect its subject matter jurisdiction." Booth, 370

Wis. 2d 595, ¶14. So a statute limiting a prosecutor's charging

discretion can do nothing to a municipal court's subject matter

7 See Wis. Const. art. VII, §§ 8, 14.

10 No. 2018AP1129.dk

¶69 If that is so (and it is), then we return full circle to

the dissent's problematic understanding of what a pleading is.

The dissent's conclusion depends on the premise that pleadings do

not define, form, or create the issues to be tried. Instead, it

must assume that a pleading's contents automatically conform to,

or are supplemented by, someone's birds-eye view of all the facts.

That is a concept entirely unknown to the law. See Hansher, 79

Wis. 2d at 385; Knapke, 54 Wis. 2d at 533.

¶70 With these principles in mind, the unavoidable

conclusion is that the municipal court had subject matter

jurisdiction to hear the case it heard. We all agree that

municipal courts have subject matter jurisdiction over OWI

ordinance violations. And as discussed above, the pleadings define

the type of action the municipal court adjudicates. The pleading

in this case said Mr. Hansen had violated Cedarburg, Wisconsin

Municipal Code § 10-1-1(a) (2005). That ordinance adopted "the

statutory provisions in Chapters 340 to 348 of the Wisconsin

Statutes, describing and defining regulations with respect to vehicles and traffic," except for "any regulations for which the

statutory penalty is a fine or term of imprisonment or exclusively

state charges . . . ." Because Cedarburg did not adopt any

criminal penalties, the offense described in the pleading can be

nothing but an OWI ordinance violation punishable by civil

penalties.

¶71 According to our law (but not according to the dissent,

of course) the pleading defined the case as a type of action over which the municipal court had subject matter jurisdiction. And

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the proceedings never deviated from that foundational definition.

It did not hear evidence that would require imposition of criminal

sanctions, and it did not in fact impose a criminal sanction. From

start to finish, therefore, the "type of action[]" over which the

municipal court presided remained an ordinance violation. And

because it was the type of matter the constitution entrusts to

municipal courts, the municipal court had subject matter

jurisdiction over Mr. Hansen's case.

¶72 But just because the municipal court had subject matter

jurisdiction does not mean the municipal court should have

adjudicated Mr. Hansen's case. Not because the case was of the

wrong type, but because a piece of information (unknown to the

City and the municipal court at the time) triggered a statutory

command that Mr. Hansen be prosecuted as a criminal instead of an

ordinance violator. This is where the concept of "competency"

plays its role. Whereas subject matter jurisdiction addresses the

"type" of case a court may hear, "competency refers to its 'ability

to exercise the subject matter jurisdiction vested in it' . . . ." Vill. of Elm Grove v. Brefka, 2013 WI 54, ¶16, 348 Wis. 2d 282,

832 N.W.2d 121, amended, 2013 WI 86, 350 Wis. 2d 724, 838

N.W.2d 87 (quoted source omitted). Consequently, a court may

simultaneously have subject matter jurisdiction over a case, but

have no ability to exercise it.

¶73 Because Mr. Hansen had a prior OWI, his commission of an

OWI violation was punishable by criminal sanctions. See generally

Wis. Stat. § 356.65(2) (describing how penalties escalate for successive OWI violations); see also Cty. of Walworth v. Rohner,

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108 Wis. 2d 713, 716, 324 N.W.2d 682 (1982) ("Sec. 346.65(2)

establishes an escalating penalty scheme for violation of the drunk

driving statute."). Therefore, the City erred when it cited Mr.

Hansen for an OWI ordinance violation——not because he committed a

"second-offense OWI," but because his OWI violation was subject to

criminal sanctions, which only circuit courts may assess. But

this error is extrinsic to the court's proceedings, not intrinsic.

That is to say, it affected what the case should have been, not

what the case was. Subject matter jurisdiction concerns itself

with what the case was. Competency concerns itself with what it

should have been. Mr. Hansen's case before the municipal court

was an OWI ordinance violation. It should have been an OWI

violation pursued in a circuit court so that criminal sanctions

could be assessed. So the municipal court simultaneously had

subject matter jurisdiction over the OWI ordinance violation, but

did not have competency to hear the case because our statutes

require that it be pursued in circuit court.

¶74 The dissent's straw man indelibly colored its understanding and discussion of Booth, Rohner, and City of Kenosha

v. Jensen, 184 Wis. 2d 91, 516 N.W.2d 4 (Ct. App. 1994). But if

it had reoriented its analysis to account for the fact that the

municipal court adjudicated an OWI ordinance violation, it would

have found that these cases are consistent with the court's

conclusion today. This trio (after Booth's adjustment to account

for the difference between competency and subject matter

jurisdiction) teaches that circuit courts have exclusive jurisdiction to prosecute OWI violations punishable by criminal

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sanctions, and that they lack the competency to adjudicate such

cases as ordinance violations. To the extent the court of appeals

suggested in Jensen that the municipal court had heard a criminal

OWI case, it made the same mistake as the dissent. Eliminating

that mistaken assumption and applying the Booth adjustment brings

Jensen into perfect alignment with both Booth and Rohner.

¶75 The dissent derides Booth's correction of prior cases as

a "chiropractic adjustment," whatever that means, but otherwise

refuses to acknowledge its import with respect to Banks and Jensen.

The Booth analysis applies to municipal courts as well as circuit

courts. The effects are not as broad because a municipal court's

subject matter is not as broad as that of a circuit court. But

with respect to the matter at hand, there is no relevant

distinction. Both the circuit court in Booth and the municipal

court here had subject matter jurisdiction to hear OWI ordinance

cases. In both Booth and this case, it turns out that the defendant

should not have been charged with an OWI ordinance violation. That

error, however, affects competency, not jurisdiction. As we said in Booth, "noncompliance with statutory mandates affects only a

court's competency and will never affect its subject matter

jurisdiction." 370 Wis. 2d 595, ¶14. Therefore, we concluded,

"the proper characterization of the circuit court's deficiency in

Rohner was loss of circuit court competency to proceed to judgment

rather than negation of subject matter jurisdiction." Id. There

is no reason this principle does not apply to municipal courts

just as it does to circuit courts. Indeed, it must apply with equal force to municipal courts, and could hardly be otherwise.

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The Wisconsin Constitution's conferral of subject matter

jurisdiction on municipal courts is no more susceptible to

statutory modification than its conferral of subject matter

jurisdiction on circuit courts. Our OWI statutes can deprive the

municipal court of competency to hear a specific case, but as we

recognized in Booth, they can never affect the court's subject

matter jurisdiction. Consequently, because the municipal court

had subject matter jurisdiction to hear an OWI ordinance violation,

Booth says its jurisdiction cannot be dislodged simply because the

case should have been charged as a criminal OWI violation. It

merely loses competence.

¶76 The dissent's refusal to read Banks and Jensen in light

of Booth apparently stems from its belief that we shared its straw

man's assumption that we must perform the jurisdictional analysis

on the case that should have been brought rather than the case the

court actually adjudicated. But we did not, and the entirety of

Booth's analysis rejects that assumption. The whole point of Booth

was to determine whether the circuit court had competency to adjudicate the case presented to it——an OWI ordinance violation.

Our conclusion that it lacked competence depended entirely on the

fact that the case it adjudicated actually was an ordinance

violation, not a criminal OWI in disguise. Here, just as in Booth,

the municipal court heard an ordinance violation.8 And just like

in Booth, the municipal court had subject matter jurisdiction to

8The record is uncompromisingly clear on this point——the pleadings, the evidence, the judgment, and the forfeiture all demonstrate beyond a cavil of a doubt that the municipal court adjudicated a first-offense OWI.

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hear such a case. And just like in Booth, the municipal court was

not competent to adjudicate the ordinance violation because it

should have been charged as a criminal matter.9

¶77 The dissent contains one more significant error that

bears some discussion. It correctly observes that subject matter

jurisdiction is always subject to challenge. State v. Bush, 2005

WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 holding modified by

Booth, 370 Wis. 2d 595 ("[C]hallenges to subject matter

jurisdiction cannot be waived[.]"). But in making that

observation, it simultaneously misconstrues the nature of such a

challenge:

If the pleading, trial, judgment, and consequences imposed effectually establish subject-matter jurisdiction, how can that oft-repeated precedent allowing subject-matter jurisdiction challenges after the fact still be true? This is not the way subject- matter jurisdiction works in federal court, and this is not the way we have ever described the subject-matter jurisdiction of municipal courts or other judicial bodies with limited subject-matter jurisdiction until today. Dissent, ¶29 n.10. ¶78 The key to a successful jurisdictional challenge is

understanding that it is a subtractive endeavor. That is to say,

a litigant setting out to demonstrate a court lacks jurisdiction

must establish that one or more conditions or facts necessary to

the invocation of jurisdiction does not exist. State ex rel. R.G.

v. W.M.B., 159 Wis. 2d 662, 668, 465 N.W.2d 221 (Ct. App. 1990)

9 There is no need to overrule Banks or Jensen in this case, in whole or in part. But only because Booth already rejected the conflation of subject matter jurisdiction and competence on which the dissent's analysis depends.

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("The party claiming that a judgment is void for lack of subject

matter jurisdiction has the burden of proving subject matter

jurisdiction did not exist."). Thus, if the plaintiff in a federal

case invokes diversity jurisdiction, the defense can defeat the

court's jurisdiction by demonstrating one of two conditions is not

true——either that the parties are not diverse, or the amount in

controversy does not satisfy the threshold. Hart v. FedEx Ground

Package Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006) (affirming

the district court's order remanding a case to state court for

lack of complete diversity of the parties); and Gardynski-Leschuck

v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) ("Unless the

amount in controversy was present on the date the case began, the

suit must be dismissed for want of jurisdiction.").

¶79 The nature of the challenge is no different when

considering the municipal court's subject matter jurisdiction. If

Mr. Hansen is to succeed, he must prove that a fact or condition

necessary to the invocation of the municipal court's subject matter

jurisdiction does not obtain. We know that, pursuant to the Wisconsin Constitution, a municipal court has subject matter

jurisdiction over "actions and proceedings arising under

ordinances of the municipality."10 We also know that Cedarburg has

an ordinance making it unlawful to operate a vehicle while

intoxicated as described by Wis. Stat. § 346.63(1)(a). See

Cedarburg, Wisconsin Municipal Code § 10-1-1(a) (2005). And

although we informally refer to the citation in this case as being

10 Wis. Const. art. VII, § 14.

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a "first-offense OWI," there is no such thing——an OWI offense

exists separate and apart from the number of the defendant's prior

OWI convictions. See supra ¶4 n.1. And that necessarily means

there is nothing in the ordinance or the Wisconsin Constitution

that requires proof that the defendant had no prior OWI convictions

as a predicate to invoking the municipal court's jurisdiction.

Consequently, because the citation pled a violation of Cedarburg's

ordinance, and invoking the municipal court's subject matter

jurisdiction did not require establishing that Mr. Hansen's

conduct did not require imposition of criminal penalties, the

jurisdictional challenge must necessarily fail.

¶80 The dissent's misunderstanding of jurisdictional

challenges apparently flows from its assumption that they can be

additive, as opposed to subtractive, in nature. That is, it seems

to believe that if a defendant's conduct adds up to an offense

over which the municipal court does not have jurisdiction, then it

necessarily follows that the defendant's conduct cannot comprise

an offense over which it does have subject matter jurisdiction. But as demonstrated by my disorderly conduct/robbery illustration,

that is most assuredly not true. And the statutory elimination of

the prosecutor's charging discretion cannot change this because we

know that statutes cannot affect constitutional grants of subject

¶81 That is not to say that OWI ordinance violations are

immune from jurisdictional challenges. To the contrary, it is

simply to say that, like all other such challenges, they are subtractive in nature. An attempt to assess criminal sanctions

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against Mr. Hansen in municipal court, for example, would be

subject to a jurisdictional challenge. Mr. Hansen would merely

need to point out that criminal sanctions do not arise under a

municipal ordinance. Because the municipal court only has

jurisdiction over ordinance violations, with their attendant civil

penalties, Mr. Hansen's challenge would effectively demonstrate

that one of the necessary conditions to invoking the municipal

court's subject matter jurisdiction has not been satisfied.11

¶82 There is no need to catalog the rest of the errors in

the dissent's analysis——they are all premised on the initial

assumption that we must act as though the municipal court heard a

case that it did not. Because of that mistaken assumption, the

dissent was unable to keep the concept of subject matter

jurisdiction distinct from a court's competence. Without those

foundational errors, the case resolves as a matter of course in a

manner that I suspect even the dissent would accept. As the

majority explained, objections to a court's competency must be

timely raised, whereas objections to a court's subject matter jurisdiction may be raised at any time.12 Majority op., ¶49.

Because Mr. Hansen's challenge goes to the municipal court's

competence to hear his case, his failure to raise it in a timely

11This explanation, of course, is based on the fact that pleadings define, form, and create the issues to be adjudicated. I recognize that the dissent does not believe this. 12See United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.").

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manner means he may no longer challenge the judgment. Booth, 370

Wis. 2d 595, ¶25.

¶83 Because I agree that the municipal court had subject

matter-jurisdiction, but not competency, over Mr. Hansen's case,

I join the majority opinion.

¶84 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.

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¶85 BRIAN HAGEDORN, J. (dissenting). The question in this

case is whether a municipal court had subject-matter jurisdiction

over an OWI offense that was brought as an ordinance violation

when it should have been criminally charged as a second-offense

OWI in circuit court. The majority says yes, and establishes a

new rule: as long as an ordinance violation was pled, a municipal

court's subject-matter jurisdiction is established. Respectfully,

this is wrong.

¶86 A faithful application of our constitution, statutes,

and cases yields a contrary result. Our law makes clear that

municipal courts are courts of limited subject-matter jurisdiction

that may only hear ordinance violations. A second-offense OWI is

a criminal offense, not an ordinance violation, and must be brought

as such. Accordingly, the municipal court lacked subject-matter

jurisdiction to entertain the improperly charged OWI offense, and

the judgment is null and void.

I ¶87 The basic principles governing this case are not

complicated. In order to hear a particular case, a court must

have power to entertain the kind of action brought. This power is

known as subject-matter jurisdiction. Wis. Stat. § 801.04(1)

(2017-18).1 Subject-matter jurisdiction "is conferred by the

constitution and statutes of this state and by statutes of the

United States." Id. But even assuming a court has subject-matter

1 All subsequent references to the Wisconsin Statutes are to the 2017-18 version.

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jurisdiction, a court wishing to render a valid judgment must have

the power to exercise that jurisdiction in the particular case

before it. This is called competence. Village of Trempealeau v.

Mikrut, 2004 WI 79, ¶9, 273 Wis. 2d 76, 681 N.W.2d 190.

¶88 If a court lacks subject-matter jurisdiction, a judgment

entered by the court is null and void because the court never had

the power to hear the case in the first place. Kohler Co. v.

DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977). A court may also

lose its competence——and thus be deprived of the power to enter a

valid judgment——"when the parties seeking judicial review fail to

meet certain statutory requirements."2 Xcel Energy Servs., Inc.

v. LIRC, 2013 WI 64, ¶28, 349 Wis. 2d 234, 833 N.W.2d 665. But

unlike the absence of subject-matter jurisdiction, a court's loss

of competence generally does not void a prior judgment.

¶89 The subject-matter jurisdiction of circuit courts is

defined by the Wisconsin Constitution, which states: "Except as

otherwise provided by law, the circuit court shall have original

jurisdiction in all matters civil and criminal within this state . . . ." Wis. Const. art. VII, § 8. In recent years, we

have made an effort to clarify subject-matter jurisdiction and

competence. And in Mikrut, we explained that pursuant to this

constitutional language, circuit courts have plenary subject-

matter jurisdiction. 273 Wis. 2d 76, ¶¶8-9. That is, circuit

2 A statutory mandate that is "central to the statutory scheme" deprives a court of its competence. See Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶28, 349 Wis. 2d 234, 833 N.W.2d 665 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶10, 273 Wis. 2d 76, 681 N.W.2d 190).

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courts have the power to hear any type of case, and this power may

not be curtailed by statute. Id.

¶90 How then do we categorize failures to comply with various

statutory requirements in circuit court? These failures are not

matters of subject-matter jurisdiction——which, again, "is plenary

and constitutionally-based." Id., ¶9. Rather, statutory

noncompliance implicates only a circuit court's competence. Id.

¶91 The subject-matter jurisdiction of municipal courts

works quite differently. We begin once more with the Wisconsin

Constitution, which provides in relevant part: "All municipal

courts shall have uniform jurisdiction limited to actions and

proceedings arising under ordinances of the municipality in which

established." Wis. Const. art. VII, § 14. Thus, the Wisconsin

Constitution does not grant municipal courts the same kind of

plenary subject-matter jurisdiction granted to circuit courts.

Rather, municipal court jurisdiction is "limited" only "to actions

and proceedings arising under ordinances." Id.

¶92 This limited grant of subject-matter jurisdiction is further colored by statute.3 Wisconsin Stat. § 755.045(1) provides

that "[a] municipal court has exclusive jurisdiction over an action

in which a municipality seeks to impose forfeitures for violations

of municipal ordinances of the municipality that operates the

court . . . ." And relevant here, Wis. Stat. § 349.06(1) permits

3Because Article VII, Section 14 authorizes the legislature to establish a municipal court, we have recognized our municipal courts "are creatures of the legislature" that are bound by the legislature's constitutional policy choices. See City of Sun Prairie v. Davis, 226 Wis. 2d 738, 755-56, 595 N.W.2d 635 (1999).

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municipalities to adopt municipal traffic ordinances that strictly

conform to the state's traffic laws and "for which the penalty

thereof is a forfeiture."

¶93 Understanding the issue in this case, as well as prior

cases on these matters, requires one additional piece of

background: our statutory scheme for OWIs and its escalating

penalty structure. Wisconsin statutes define the violation of

operating while intoxicated in Wis. Stat. § 346.63(1). However,

the penalty for the violation is separately laid out in Wis. Stat.

§ 346.65(2)(am). That paragraph establishes an escalating penalty

structure that turns on the number of prior countable offenses.

The bottom line is that first-offense OWIs are civil in nature and

punishable by forfeiture——a policy decision unique to this state—

—while all subsequent OWI offenses are criminal matters. See

§ 346.65(2)(am).4

II

¶94 With this background in mind, we turn to our cases

applying these principles. In 1981, this court first explained the mandatory OWI penalty structure described above. State v.

Banks, 105 Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981). Banks involved

a civil forfeiture judgment entered on an OWI citation that should

4 The concurrence accuses this dissent of "a pretty significant error of law" for saying "something known as a 'second- offense OWI'" exists. Concurrence, ¶4 n.1. Yet that same nomenclature for OWI offenses under our unique statutory scheme is used by the majority in this very case, and in innumerable other cases in the Wisconsin Reports. Majority op., ¶¶14, 17, 19, 32; see also, e.g., City of Eau Claire v. Booth, 2016 WI 65, ¶16, 370 Wis. 2d 595, 882 N.W.2d 738 ("Booth Britton's argument fails because first-offense and second-offense OWIs are both offenses known at law as set forth in our statutes.").

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have been charged as a second-offense crime. Id. at 43. At the

time the judgment was entered, the presiding court commissioner

was "unaware" that only two weeks earlier the defendant had been

convicted of a separate OWI offense. Id. at 36. When so advised,

the court commissioner vacated the judgment as null and void and

referred the matter for criminal prosecution, despite the fact

that the citation was pled and tried as a first-offense civil

forfeiture. Id. Banks was criminally charged with a second-

offense OWI, and eventually this court was called to address his

claim that the criminal prosecution constituted double jeopardy.

Id. at 38.

¶95 We said no such violation had occurred. Instead, we

stated that, because the OWI offense should have been criminally

charged as a second offense,5 the proceeding before the court

commissioner was "in effect a nullity for lack of jurisdiction."

Id. at 43-44. This is so because the court commissioner had no

statutory authority to preside over a case involving a criminal

drunk driving offense, and therefore the civil forfeiture judgment on the incorrectly charged OWI offense had been properly vacated.

Id. at 40-41.

¶96 Then, in 1982, this court considered whether a

prosecutor had discretion to charge what was factually a second-

5 Starting with Banks, our cases have consistently interpreted the OWI penalty structure to require mandatory escalating penalties with each subsequent offense. See State v. Banks, 105 Wis. 2d 32, 39-43, 313 N.W.2d 67 (1981); City of Lodi v. Hine, 107 Wis. 2d 118, 122-23, 318 N.W.2d 383 (1982); County of Walworth v. Rohner, 108 Wis. 2d 713, 717-18, 324 N.W.2d 682 (1982); State v. Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852 N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24.

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offense criminal OWI as a civil forfeiture ordinance violation.

County of Walworth v. Rohner, 108 Wis. 2d 713, 715, 324 N.W.2d 682

(1982). The issue in Rohner arose at trial——on an ordinance

violation pleading——when it was revealed that the defendant's OWI

was a second offense. Id. at 715. After the prosecutor chose not

to file a new criminal complaint, the circuit court heard the

action as an ordinance violation. Id. We unanimously reversed.

Id. at 722. Relying on the mandatory escalating penalty structure

established by the legislature, we held that a second-offense OWI

must be brought as a criminal offense. Id. at 717-18 (citing

Banks, 105 Wis. 2d at 39). Charging authorities have no discretion

to charge what is in fact a second-offense OWI as a first-offense

civil forfeiture. Id. at 720-21. And given this, it is the State

that "has exclusive authority to prosecute second offenses for

drunk driving." Id. at 722.

¶97 After Banks and Rohner, the court of appeals addressed

the question of what becomes of a municipal court judgment on an

OWI charge that should have been——indeed, per our earlier decisions, was required to be——brought as a criminal offense. In

City of Kenosha v. Jensen, the City had moved the municipal court

to vacate an OWI civil forfeiture judgment on the grounds that the

court lacked subject-matter jurisdiction over an incorrectly

charged OWI offense. 184 Wis. 2d 91, 92-93, 516 N.W.2d 4 (Ct.

App. 1994). In raising its motion for postjudgment relief, the

City informed the municipal court that, unbeknownst at the time

the forfeiture judgment was entered, the defendant had been previously convicted of a separate OWI offense. Id. at 92-94.

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The municipal court found it necessary to vacate the judgment, as

did the circuit court. Id. Likewise, before the court of appeals,

the State appeared as an amici and argued that the municipal court

had no jurisdiction to hear a case involving an OWI that should

have been criminally charged. Id. at 98-99. Relying on our

precedent saying as much, the court of appeals agreed:

[W]e want to make clear what we are not deciding. We are not holding that in every [OWI] case where the municipal attorney finds out that an offense is actually a second or subsequent offense within five years, the municipal attorney must seek vacation of the municipal judgment before criminal proceedings can ensue. Quite the contrary, the State may proceed regardless of whether the municipal attorney or the municipal court first acts. As the State points out in its amicus curiae brief, a municipal court does not have subject matter jurisdiction to try and convict a criminal operating while intoxicated. Any such municipal action is null and void. See County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682, 686 (1982); State v. Banks, 105 Wis. 2d 32, 40-41, 313 N.W.2d 67, 71 (1981). As no jeopardy has attached as a result of municipal court action, the State may proceed regardless of what the municipal attorney or the municipal court does. The municipal judgment having no force or effect, it is as if it never took place. Id. (emphasis added). ¶98 The court of appeals then rejected Jensen's argument

that the City "knew or should have known" of the earlier offense

at the time it negotiated a plea agreement for the now-vacated

judgment. Id. at 100. As the court explained, "the City had no

authority to enter the plea agreement in the first place" because

as a factual matter the underlying OWI was a second-offense

criminal charge. Id.

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¶99 For several decades now, the courts of our state have

understood and held that a municipal court has no subject-matter

jurisdiction over a second or subsequent OWI offense, and hence,

such judgments are null and void. See, e.g., State v. Strohman,

No. 2014AP1265-CR, unpublished slip op., ¶¶2-3, 17 (Wis. Ct. App.

Feb. 3, 2015) (citing Jensen for the proposition that "because an

offense that is actually a qualified second (or greater) OWI

offense can only be criminally prosecuted, any municipal

proceeding regarding such an offense is 'null and void[,]' with

any such municipal judgment 'having no force or effect, [such that]

it is as if it never took place'").

¶100 Three years ago, in City of Eau Claire v. Booth, we

addressed whether a circuit court lacks subject-matter

jurisdiction over an action based on a mischarged OWI offense.

2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738. Booth arose from

a civil forfeiture judgment on a first-offense OWI that had been

voided by a circuit court in reliance on Rohner. Id., ¶4.

Applying the same long-established principles, we explained that mischarging an OWI does not affect a circuit court's subject-

matter jurisdiction because circuit courts have plenary subject-

matter jurisdiction under our constitution. Id., ¶¶1, 14. That

is, regardless of whether an OWI is incorrectly charged as a first-

offense ordinance violation or correctly charged as a second-

offense crime, our constitution grants circuit courts power to

hear the action and enter a judgment on the matter. Thus, even

though mischarging an OWI as a civil forfeiture in circuit court constitutes a failure to abide by the mandatory OWI penalty

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structure, statutory noncompliance of that kind results only in a

loss of the circuit court's competence. Id., ¶¶14, 19, 24.

Playing this logic out, we determined that the defendant forfeited

her competence challenge after waiting 22 years to bring a

collateral attack. Id., ¶25.

¶101 Booth drew no blood on the core holdings of Banks,

Rohner, and Jensen. Because our cases since Rohner——Mikrut in

particular——have more clearly distinguished circuit court subject-

matter jurisdiction and competence, we withdrew any language that

suggested statutory deficiencies like the one in Booth were matters

of circuit court subject-matter jurisdiction as opposed to

competence. Booth, 370 Wis. 2d. 595, ¶14. In so doing, we

emphasized that our decision "leaves intact Rohner's holding 'that

the state has exclusive jurisdiction over a second offense for

drunk driving.'" Id., ¶15 (quoting Rohner, 108 Wis. 2d at 716).

And in line with this exclusive prosecutorial authority, "criminal

penalties are required of all OWI convictions following an OWI

first-offense conviction," meaning our circuit courts have exclusive subject-matter jurisdiction to enter a judgment on a

second-offense OWI. Id., ¶23 (citing Rohner, 108 Wis. 2d at 717-

18, and Banks, 105 Wis. 2d at 39).

III

¶102 Applying the constitutional text and our precedent to

the case before us today yields a clear outcome. Unlike circuit

courts, municipal courts have limited subject-matter jurisdiction. They can only hear municipal ordinance violations. Relying on the

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OWI statutory scheme, our cases make clear that an ordinance

violation for a second-offense OWI does not exist at law; a second-

offense OWI is a criminal matter. The State has exclusive

authority to prosecute such charges, and circuit courts have

exclusive subject-matter jurisdiction to hear such cases. Thus,

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. Any judgment or order entered in such an

action is null and void.

¶103 The majority's contrary conclusion finds its footing in

a single proposition that amounts to a false foundation. It

maintains that municipal court subject-matter jurisdiction is

established based on the four corners of an ordinance citation

alone. Majority op., ¶¶3, 29, 54. The majority's discussion in

support of its pleading-establishes-jurisdiction rule covers three

areas. First, the majority relies on the "arising under" language

in Article VII, Section 14 of the Wisconsin Constitution. Second, the majority endeavors to enlist the law of federal subject-matter

jurisdiction in aid of its argument. Finally, the majority implies

that its holding is grounded in our prior cases, especially our

recent decision in Booth. In fact, nothing in the text of our

constitution, nothing in the law of federal jurisdiction, and

nothing in our prior cases suggest that invoking jurisdiction

conclusively establishes jurisdiction. In reaching its conclusion

today, the majority not only fails to apply our law, it blatantly defies it.

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¶104 Starting with the constitution, as already explained,

municipal court jurisdiction is limited to "actions and

proceedings arising under ordinances of the municipality in which

established." Wis. Const. art. VII, § 14. The straightforward

reading of the constitution is that we must actually be dealing

with an ordinance violation in order for the municipal court to

have the power to hear the case. Nothing about the phrase "arising

under" suggests mere invocation of an ordinance violation in the

charging document is sufficient to actually confer jurisdiction on

a municipal court.6 If there is a textual argument otherwise, the

majority does not make it. Nor does the majority cite a single

Wisconsin case in support of its interpretation of this provision

6 The majority latches onto the fact that the phrase "arising under" is also found in federal law. It is hornbook law that federal-question subject-matter jurisdiction is invoked when the pleading party presents a colorable claim "arising under" the Constitution or laws of the United States. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (citing 28 U.S.C. § 1331). While the nature of this "well-pleaded complaint rule" is beyond dispute, the majority treats that rule as though this closes the case. As shown below, this is wrong.

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of the Wisconsin Constitution.7 That's because, so far as I can

tell, none exist.8

¶105 With no Wisconsin law to support its cause, the majority

seeks refuge in the law of federal jurisdiction. The majority

suggests subject-matter jurisdiction in federal court works in a

similar way to the rule it is announcing. Not even close. While

federal jurisdiction must be invoked in a pleading, it is most

7 A reader might take away from the majority that Ableman v. Booth, a Wisconsin Supreme Court case from 1859, supports its view. 11 Wis. 517 (*498), 531-532 (*512) (1859). But the language quoted is actually one justice's discussion of the phrase "arising under" as it appears in the U.S. Constitution and as it relates to the subject-matter jurisdiction of federal courts. Even then, nothing in the quoted language supports the proposition that invocation of federal jurisdiction is always sufficient to establish federal jurisdiction——the lesson the majority suggests is the pertinent takeaway. As explained below, this is plainly not the law in federal courts. 8 As part of its "arising under" discussion, the majority notes that "the city attorney is not required to allege or prove that the defendant had no prior offenses" in determining liability for a first-offense OWI in municipal court. Majority op., ¶30. This is true, but irrelevant. And I do not take this to be a separate argument relating to subject-matter jurisdiction. After all, rendering judgment in a case necessarily includes prescribing the punishment for an offense. Again, subject-matter jurisdiction is "the power of a court to decide certain types of actions." State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508 (citing United States v. Morton, 467 U.S. 822, 828 (1984)). And it must be true that a court needs subject-matter jurisdiction through sentencing to decide an action. But to the majority's broader point, even if a prior countable offense remains undisclosed throughout a municipal court proceeding, that silence does not in and of itself mean that jurisdiction was ever had. As Banks, Rohner, and Jensen make clear, a subsequent OWI offense must be charged as such, and a municipal court lacks the power to sentence someone convicted of a subsequent OWI offense precisely because that charge cannot be an ordinance violation, no matter how it is pled.

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certainly not established in all cases simply on the grounds that

it was pled.

¶106 Like municipal courts in Wisconsin, federal courts are

courts of limited subject-matter jurisdiction, empowered only to

hear cases as authorized by the U.S. Constitution and federal

statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994). Thus, jurisdiction must be affirmatively alleged by

citation to a statutory basis or by sufficient factual allegations.

Id. Mere pleading of federal jurisdiction doesn't settle the

matter, however. Rather, federal jurisdiction is subject to

challenge throughout the proceeding. See Ins. Corp. of Ir., Ltd.

v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)

("[N]o action of the parties can confer subject-matter

jurisdiction upon a federal court."); see also United States v.

Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-matter jurisdiction,

because it involves a court's power to hear a case, can never be

forfeited or waived."). Importantly, federal courts themselves

are obligated to independently ensure that jurisdiction is had at all stages of a proceeding.9 Ruhrgas AG v. Marathon Oil Co., 526

9Given this independent obligation, any merits decision entered by a federal court is deemed to include a factual determination that subject-matter jurisdiction was established. Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376-77 (1940). This is so even if that determination is not explicitly recognized in the court's decision. See 13D Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3536 (3d ed. 2008) (discussing Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152-53 (2009)). Because this finding is necessarily included within a federal court decision, it is generally recognized that any errors regarding the determination of jurisdiction must be made through direct appeal, not collateral attack. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de 13 No. 2018AP1129.bh

U.S. 574, 583-84 (1999). Thus, even on appeal, a federal court

must dismiss any action upon discovery that jurisdiction is not

had or was not had by a court below. Id.

¶107 It is hard to overstate the obvious: the majority's

rule, which it presents as somehow supported by the law of federal

jurisdiction, stands instead in direct conflict. If mere

invocation is enough, how is it that a party can challenge

jurisdiction after it has been pled? What of the federal court's

independent obligation to ensure jurisdiction is had——again,

regardless of the invocation of subject-matter jurisdiction in a

pleading? How is it that a federal appeals court can dismiss the

case for lack of subject-matter jurisdiction years after the

pleading was filed? None of the cases the majority cites support

the proposition that federal jurisdiction is conclusively

established by virtue of its invocation in a pleading. It is not.

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.

¶108 This lack of support notwithstanding, the majority aims

to align its conclusion here with several of the on-point Wisconsin

cases explained above. Across eight paragraphs, the majority

describes those cases and closes by simply reasserting that

subject-matter jurisdiction is had based on the allegations in the

citation. Majority op., ¶¶42-50. No effort is made to engage the

actual holdings or reasoning of the cases. The majority fails to

Guinee, 456 U.S. 694, 702 n.9 (1982).

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engage our cases because it cannot; its proposed rule runs right

over what those cases actually say.

¶109 For instance, the majority concludes the charging

document alone establishes subject-matter jurisdiction. But in

Banks, the defendant pled to a first-offense civil forfeiture, and

that fact made no difference when we determined that the entire

proceeding was "in effect a nullity" because the court commissioner

had no jurisdictional authority to hear what was in fact a second-

offense criminal OWI. 105 Wis. 2d at 36, 43. Jensen reached the

same conclusion: a judgment was entered on a civil forfeiture,

but later vacated because the incorrectly charged OWI meant the

entire action was "null and void" because the municipal court had

no subject-matter jurisdiction. 184 Wis. 2d at 93, 99. Neither

of these outcomes are consistent with, much less possible under,

the majority's new rule.

¶110 The majority also suggests, albeit indirectly, that the

prosecuting authority's knowledge of a prior offense might affect

a court's subject-matter jurisdiction. See Majority op., ¶¶14, 17, 44. But in Banks, we noted that the court commissioner entered

a civil forfeiture judgment "unaware" of the defendant's prior

offense. 105 Wis. 2d at 36. This lack of knowledge had no effect

on our conclusion that that judgment was null and void because

there was no subject-matter jurisdiction. Id. at 41, 43.

Similarly in Jensen, the municipal court was without subject-

matter jurisdiction even though the prior offense was

"unbeknownst" to the court at the time it entered the civil forfeiture judgment. 184 Wis. 2d at 92-93, 98-99. And in Rohner,

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we held that the State has exclusive prosecutorial authority over

all subsequent OWI offenses, never once nuancing the rule with a

knowledge requirement. 108 Wis. 2d at 722; see also Booth, 370

Wis. 2d 595, ¶15 (reaffirming that holding). Once again, the

majority's subtle importation of a knowledge requirement stands at

direct odds with prior cases, and no effort is made to reconcile

the inconsistencies.

¶111 Along these lines, while the majority never quite says

so, it implies that Booth stands for the proposition that statutory

noncompliance equals a competence problem no matter what court

you're dealing with. As explained above, however, Booth was about

statutory noncompliance and loss of competence in circuit courts,

which have plenary subject-matter jurisdiction under our

constitution. Regardless of whether an OWI is incorrectly charged

as a first-offense ordinance violation or correctly charged as a

second-offense crime, a circuit court has subject-matter

jurisdiction to hear the action and enter a judgment on the matter.

A municipal court's subject-matter jurisdiction, on the other hand, hinges entirely on whether the offense is actually an

ordinance violation. No "Booth adjustment," in the concurrence's

parlance, allows us to paper over the constitution's very different

grants of subject-matter jurisdiction to circuit and municipal

courts.

¶112 Collecting all of the above, if the majority is correct,

and pleading an OWI ordinance violation establishes subject-matter

jurisdiction, Banks and Jensen must be overruled. If an OWI offense is considered correctly charged solely because a municipal

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prosecutor lacked knowledge of a prior offense, Rohner——and every

other case that explains and relies on the mandatory nature of the

OWI penalty structure, including Booth——needs to be modified. See

Banks, 105 Wis. 2d at 39-43; City of Lodi v. Hine, 107 Wis. 2d 118,

122-23, 318 N.W.2d 383 (1982); Rohner, 108 Wis. 2d at 717-18;

State v. Williams, 2014 WI 64, ¶¶21, 30, 32, 355 Wis. 2d 581, 852

N.W.2d 467; Booth, 370 Wis. 2d 595, ¶¶22-24. Rather than

forthrightly acknowledge any of this, the majority simply

sidesteps any substantive engagement with these decisions.

¶113 It is difficult to figure out the consequences of a rule

that pleading conclusively establishes subject-matter

jurisdiction——a rule heretofore unknown in the law.10 What if the

The concurrence joins the majority's holding that pleading 10

establishes jurisdiction. Concurrence, ¶1. At the same time, it proclaims that subject-matter jurisdiction depends not just on the pleading, but also on "the evidence produced and the court's disposition of the matter." Concurrence, ¶10 n.5. Subject-matter jurisdiction, according to the concurrence, is established if "what the complaint pleads, what the municipal court hears, what judgment it renders, and what consequences it imposes" all constitute an ordinance violation. Concurrence, ¶10. I have no idea how both rules can be true. Either subject-matter jurisdiction is established based on the pleading, and is not challengeable afterwards, or not.

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city attorney finds out midway through the proceeding (i.e., post-

pleading) that a prior OWI conviction exists, the very sequence of

events in Banks (albeit before a court commissioner)? Can the

municipal court render judgment? Could someone bring a post-trial

appeal on similar grounds (again, post-pleading)?

Further, the concurrence's rule suffers from the same fatal disease as the majority's. Our cases have repeatedly said subject- matter jurisdiction can always be challenged, even after a case is completed, and that a defect in subject-matter jurisdiction renders a previously entered judgment null and void. E.g., Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977) ("When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time."). If the pleading, trial, judgment, and consequences imposed effectually establish subject-matter jurisdiction, how can that oft-repeated precedent allowing subject-matter jurisdiction challenges after the fact still be true? This is not the way subject-matter jurisdiction works in federal court, and this is not the way we have ever described the subject-matter jurisdiction of municipal courts or other judicial bodies with limited subject- matter jurisdiction until today.

The concurrence also sets up a curious hypothetical regarding a municipal court's judgment for disorderly conduct. The obvious problem with this is that a person can validly be charged with a disorderly conduct ordinance violation regardless of whether a more serious charge is warranted, but cannot be given a citation for first-offense OWI unless it is in fact a first-offense OWI. A first-offense OWI citation for someone with a prior countable OWI offense is a violation that does not exist at law. It is not and cannot be an ordinance violation. This quirk of our OWI statutes is unlike other areas of law. The concurrence finds this "revolutionary"; but as our cases make clear, it is actually the long-established way we have interpreted our OWI statutory scheme.

Finally, the concurrence suggests a "Booth adjustment" to our prior cases is all the chiropractic correction needed to realign those decisions. Concurrence, ¶19. But it does not really conduct an accounting of those cases. Instead, its effort to synthesize our body of cases rests wholly on its novel subject-matter jurisdiction analysis. Booth was founded entirely on the plenary subject-matter jurisdiction of circuit courts. Any effort to make it do more than that here begs the question.

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¶114 No small part of the reason we are left guessing at

potential unintended consequences is the fact that none of the

briefing or arguments in this case went to the majority's holding

that a municipal court's subject-matter jurisdiction is

established by pleading an ordinance violation, or its suggestion

that the prosecuting authority's knowledge of a prior OWI offense

is relevant to that question. All of this innovation originates

solely from the majority's own inspiration.

¶115 So far as I can tell, the upshot of the majority is if

municipal courts accidentally or unintentionally violate the

constitution by deciding a case the constitution says they have no

power to decide, they haven't actually violated the constitution

at all. Good intentions notwithstanding, the constitution's

limited grant of power to municipal courts should be read to mean

what it says.

¶116 Under our long-established law, the straightforward

answer to the issue in this case is that a municipal court lacks

subject-matter jurisdiction over an OWI offense that was brought as an ordinance violation when it should have been criminally

charged as a second-offense OWI in circuit court. The incorrectly

charged OWI here is therefore null and void. I respectfully

dissent.

¶117 I am authorized to state that Justices ANN WALSH BRADLEY

and REBECCA FRANK DALLET join this dissent.

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