City of Cedarburg v. Ries B. Hansen, 2020 WI 11, 2/11/19 (on bypass of the court of appeals); case activity (including briefs)
Municipal courts have subject matter jurisdiction over ordinance violations (e.g. an OWI 1st), and circuit courts have subject matter jurisdiction over misdemeanors and felonies (e.g. an OWI 2nd or subsequent). In this 4-3 decision, SCOW holds that a municipal court had subject matter jurisdiction over an OWI 2nd that was mischarged as an OWI 1st.
SCOW recently held that when a circuit court adjudicates an OWI 1st thinking that it is an OWI 2nd, the error deprives the circuit court of competency (or the ability) to exercise its subject matter jurisdiction, but it does not deprive the circuit court of subject matter jurisdiction. Under the Wisconsin Constitution, circuit courts have plenary subject jurisdiction over all matters civil and criminal. See our post on City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.
Why does this matter? The penalty that may be imposed for an OWI conviction depends upon how many prior OWI convictions the defendant has and when they occurred. See Wis. Stat. §346.65(2)(am). Thus, a common defense defense strategy for an OWI 2nd or above is to collaterally attack prior OWIs so they cannot be counted at sentencing.
That’s what Hansen tried to do here. He was charged with his 3rd OWI in circuit court. He argued that his 1st OWI, which a municipal court adjudicated in 2005, was void because it was actually a 2nd OWI. He had previously been convicted of an OWI in Florida, which the municipal court did not know about. Since municipal courts do not have subject matter jurisdiction over a 2nd offense OWI (a misdemeanor), Hansen argued that the 2005 OWI was void.
SCOW now puts the kibosh on that strategy:
¶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 prosecuted for ordinance violations shown on the civil citations
he was issued.
In other words, a municipal court’s jurisdiction now turns on the 4 corners of the municipal citation, a principle the majority analogizes to the law of federal jurisdiction. Majority, ¶¶36-41.
Because the municipal court had subject matter jurisdiction over Hansen’s 2nd OWI, the only issue is whether it had competence to adjudicate it. Hansen didn’t object to the municipal court’s lack of competence back in 2005, so he forfeited the issue, says the Majority at ¶51.
Defendants are unlikely to say “excuse me, your honor, the government has undercharged me” when it’s the government that must prove the number of prior OWIs beyond a reasonable doubt. So what is defense counsel to do if she knows her client has a prior OWI that the government has not discovered? The majority notes that defense counsel may have an ethical obligation to safeguard information about prior convictions. But it also says that if a court explicitly asks defense counsel about her client’s prior convictions she must divulge the correct number. Majority, ¶32 n. 14.
The dissent by Hagedorn (joined by A.W. Bradley and Dallet) dismantles the majority opinion point by point. It further highlights an unfair and frustrating practice observed by many defense lawyers:
¶114 [N]one of the briefing or arguments 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.
Kelly, joined by R.G. Bradley, filed an angry concurrence. It agrees with the majority’s result and reasoning, Its sole purpose was to chastise “the dissent’s deft, but pointless, reduction of a straw man to fine powder.” ¶56. That’s the tone for 20 pages. If you like that sort of thing, read it.
UPDATE: On May 20, 2020, the court unanimously granted a motion for reconsideration noting that, contrary to its original opinion, the burden of proof of priors is typically (but not always, depending on statutory language) preponderance of the evidence, rather than beyond a reasonable doubt.
