                                                                  2016 WI 65

                    SUPREME COURT            OF     WISCONSIN
CASE NO.:                2015AP869
COMPLETE TITLE:          City of Eau Claire,
                                   Plaintiff-Appellant,
                              v.
                         Melissa M. Booth, n/k/a Melissa M. Booth
                         Britton,
                                   Defendant-Respondent.

                               ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:           July 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           April 7, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Eau Claire
   JUDGE:                William M. Gabler, Sr.

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
                         (Opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:
       For the plaintiff-appellant, there were briefs by Douglas
J. Hoffer, assistant district attorney and Jenessa Stromberger,
assistant district attorney, and oral argument by Douglas J.
Hoffer.


       For the defendant-respondent there was a brief by Diane C.
Lowe and Lowe Law, L.L.C., Eau Claire, and oral argument by
Diane C. Lowe.


       There was an amicus curiae brief by Sarah Schmeiser and
Tracy        Wood    &   Associates,     Madison,   on   behalf    of   Wisconsin
Association of Criminal Defense Lawyers.
                                                                       2016 WI 65
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2015AP869
(L.C.     2014GF804)

STATE OF WISCONSIN                           :              IN SUPREME COURT

City of Eau Claire,

            Plaintiff-Appellant,                                      FILED
     v.                                                           JUL 12, 2016
Melissa M. Booth, n/k/a Melissa M. Booth Britton,                   Diane M. Fremgen
                                                                 Clerk of Supreme Court
            Defendant-Respondent.




     APPEAL from an order of the Circuit Court for Eau Claire

County,   William   M.   Gabler,   Sr.,    Judge.        Reversed      and    cause

remanded.



     ¶1     REBECCA G. BRADLEY, J.         This case is before the court
on the City of Eau Claire's petition to bypass the court of

appeals pursuant to Wis. Stat. § (Rule) 809.60 (2013-14).1                         We

are asked to determine whether a circuit court lacks subject

matter    jurisdiction    to   enter   a    civil      forfeiture        under      a


     1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.     Although this
case involves a 1992 violation, no changes to the applicable
statutes are dispositive of the issue we address.
                                                                        No.     2015AP869



municipal       ordinance     for       a    first-offense          operating     while

intoxicated      (OWI)    that   factually         should    have    been     criminally

charged as a second-offense OWI due to an undiscovered prior

countable conviction.2           We conclude that a circuit court lacks

competency      but    retains    subject        matter     jurisdiction       when   it

enters a civil forfeiture judgment for a first-offense OWI that

should have been criminally charged as a second-offense OWI due

to an undiscovered prior countable offense.                     Unlike defects in

subject     matter       jurisdiction,          challenges     to     circuit     court

competency may be forfeited.                We conclude that Melissa M. Booth

Britton forfeited her right to challenge her 1992 first-offense

OWI judgment by failing to timely raise it; as a result, the

circuit court erred when it granted her motion to reopen and

vacate    her   1992     first-offense       OWI    civil    forfeiture        judgment.

Therefore, we reverse with directions to the circuit court to

reinstate Booth Britton's 1992 first-offense OWI judgment.

                                  I.    BACKGROUND

    ¶2      In 1990, Booth Britton was convicted in Minnesota of a
first-offense OWI.         In 1992, the Eau Claire County Circuit Court

entered a civil forfeiture judgment against Booth Britton for

another     first-offense        OWI.        The    Eau     Claire    City     Attorney

prosecuted Booth Britton in the 1992 OWI action.                            The record


    2
       The petition to bypass states an additional issue: "Is a
municipality legally precluded from pursuing a civil OWI
citation if the defendant could also be charged criminally?"
The briefs and oral argument, however, did not sufficiently
address this issue. As a result, we do not consider it.


                                            2
                                                                        No.       2015AP869



does not indicate the reason why the 1992 offense was charged as

a first offense rather than a second offense.                           However, the

parties    appear     to    agree    that       the    countable      1990    Minnesota

conviction was unknown to the City Attorney's office when it

prosecuted the 1992 OWI as a first offense.3

     ¶3     In 2014, Booth Britton filed a motion to reopen and

vacate    her    1992     Eau   Claire      County      first-offense         OWI      civil

forfeiture      judgment    because       "it    was    [a]   second       OWI    offense

improperly      charged    as   a   first       offense."      At    the     time      Booth

Britton filed her motion to reopen and vacate the 1992 OWI, she

had OWI (7th, 8th, or 9th) related charges pending against her

in Douglas County.         She argued that because the 1992 OWI should

have been charged as a criminal second-offense OWI, the circuit

court must void her 1992 judgment for lack of subject matter

jurisdiction.       The City responded that any "[a]lleged defects in

the 1992 action may have implicated court competency, but did

not implicate subject matter jurisdiction."                          The City argued

Booth Britton forfeited any right to challenge the 1992 OWI
civil    forfeiture     judgment     by     failing     to    object    in       the   1992

circuit court action.

     ¶4     The     circuit     court     voided       the    1992     conviction        on

subject matter jurisdiction grounds.                    It relied on County of


     3
       The only remaining record related to the 1992 OWI is the
citation Booth Britton received from a City of Eau Claire police
officer.   This citation indicates that Booth Britton violated
City of Eau Claire Ordinance 10.04, which adopted Wis. Stat.
§ 346.63(1)(a).


                                            3
                                                                                     No.     2015AP869



Walworth    v.    Rohner,       108    Wis. 2d 713,               324    N.W.2d 682          (1982),

concluding       that       "[s]ince        a    second          offense       OWI     cannot       be

prosecuted       as     a     civil     action             in     Wisconsin,           the        Court

Commissioner did not have the proper jurisdiction in the 1992

prosecution to render a civil judgment."

      ¶5    The City filed a notice of intent to appeal and both

parties filed briefs with the court of appeals.                                  The City then

filed a petition to bypass the court of appeals under Wis. Stat.

§ (Rule) 809.60, which we granted.

                               II.    STANDARD OF REVIEW

      ¶6    We independently review questions of subject matter

jurisdiction      and       competency.              See     Vill.       of    Trempealeau           v.

Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.                                      We also

independently         review       whether       a   party        forfeits       the       right    to

challenge circuit court competency.                        Id.

                                     III.        ANALYSIS

      ¶7    Article VII, Section 8 of the Wisconsin Constitution

provides, in pertinent part: "Except as otherwise provided by
law, the circuit court shall have original jurisdiction in all

matters civil and criminal within this state . . . ."                                        Subject

matter     jurisdiction,            established            by     this        section        of     our

constitution, "refers to the power of a court to decide certain

types of actions."             See State v. Smith, 2005 WI 104, ¶18, 283

Wis. 2d 57, 699 N.W.2d 508.                     Because this power is granted to

circuit courts by our constitution, it cannot be "curtailed by

state statute."         Mikrut, 273 Wis. 2d 76, ¶8; see also Eberhardy
v.   Circuit     Court       for     Wood       Cty.,      102    Wis. 2d 539,             550,     307
                                                 4
                                                                               No.       2015AP869



N.W.2d 881 (1981) (noting that the constitutional language "only

allows for a legislative reallocation of jurisdiction from the

circuit court to another court").                      However, "a circuit court's

ability to exercise the subject matter jurisdiction vested in it

by   the    constitution          may     be   affected         by    noncompliance            with

statutory       requirements           pertaining     to    the      invocation          of    that

jurisdiction in individual cases."                     Mikrut, 273 Wis. 2d 76, ¶9.

Noncompliance           with     statutory          mandates         affects        a     court's

competency        and     "a     court's       'competency,'           as     the       term     is

understood       in     Wisconsin,       is    not    jurisdictional           at       all,    but

instead, is defined as 'the power of a court to exercise its

subject matter jurisdiction' in a particular case."                                 Smith, 283

Wis. 2d 57, ¶18 (quoting Kohler Co. v. Wixen, 204 Wis. 2d 327,

337, 555 N.W.2d 640 (1996)).

      ¶8        Here,     the     parties       disagree         as     to     whether          the

mischarged       OWI     affected        the    circuit     court's          subject       matter

jurisdiction or its competency.                       The City argues that Booth

Britton's objections to her 1992 OWI conviction implicate court
competency rather than subject matter jurisdiction.                                     The City

further     asserts       that     Booth       Britton     forfeited          her       right    to

challenge       the     circuit    court's       competency          when    she     failed      to

object     to    the     OWI    first     offense     in    the       1992    circuit         court

action.         The     City    primarily      relies      on   our     2004    decision         in

Mikrut, 273 Wis. 2d 76, ¶1, which stated that "a circuit court

is never without subject matter jurisdiction."                               Booth Britton,

in   contrast,         points     to    Rohner,      108    Wis. 2d at         722,       a     1982
decision, which she argues held that circuit courts do not have
                                                5
                                                                    No.     2015AP869



subject     matter    jurisdiction       over     subsequent       criminal       OWI

offenses that were improperly charged and tried as civil first

offenses.       Booth      Britton    asserts     then    that     her     1992   OWI

conviction is void under Wis. Stat. § 806.07(1)(d).4                       We reject

Booth Britton's argument.

                                         A

    ¶9       In Rohner, the defendant, Paul Rohner, was cited for a

first-offense OWI in violation of a county ordinance despite the

fact that he had a prior countable OWI conviction.                       Rohner, 108

Wis. 2d at     715.        Rohner    contemporaneously          objected     to   the

improper    charge    in    the     circuit   court      and    argued     that   the

improper     charging      resulted     in    a   lack     of    subject      matter


    4
       Wisconsin Stat. § 806.07 is titled: "Relief from judgment
or order." This section "attempts to achieve a balance between
fairness in the resolution of disputes and the policy favoring
the finality of judgments."     Edland v. Wis. Physicians Serv.
Ins. Corp., 210 Wis. 2d 638, 644, 563 N.W.2d 519 (1997).
Section (1)(d) allows for relief "from a judgment, order or
stipulation" "on motion and upon such terms as are just" if
"[t]he judgment is void." Wis. Stat. § 806.07(1)(d).

     In her supplemental brief to this court, Booth Britton
appears to raise an alternative argument for relief based on
Wis. Stat. § 806.07(1)(h), which allows for consideration of
"[a]ny other reasons justifying relief from the operation of the
judgment."    This subsection is to be used sparingly in
extraordinary cases and any motion for relief based on
§ 806.07(1)(h) must be brought within a reasonable time period.
Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶¶35-36, 273
Wis. 2d 76, 681 N.W.2d 190.    We do not address whether Booth
Britton meets the legal standards to obtain relief under
§ 806.07(1)(h) because she failed to request relief under this
subsection in her motion to vacate her 1992 conviction.      See
id., ¶37.


                                         6
                                                                     No.    2015AP869



jurisdiction because he should have been charged with a second-

offense OWI under state law rather than a first-offense OWI

under a municipal ordinance.           Id.    The circuit court disagreed,

reasoning    that    it    had   "jurisdiction"       because     "the     district

attorney had the prosecutorial discretion to charge under either

the   ordinance     violation     or   the    state    statute."           Id.     We

disagreed and reversed the circuit court.

      ¶10   In     doing   so,   we    reviewed    the    statutory        language

governing OWI penalties in Wisconsin, prior cases interpreting

that language, legislative history, and the purpose of drunk

driving     laws    generally    to    conclude       "that    the    legislature

intended a second offense for drunk driving to be within the

exclusive province of the state to prosecute as a crime."                         Id.

at 716-21.       Therefore, under our OWI statutes, a prosecutor has

no discretion to charge what is factually a second-offense OWI

as a first-offense municipal ordinance OWI.                   Id. at 721.        As a

result, we held that "[b]ecause the complaint is to be dismissed

for want of subject-matter jurisdiction, there could not have
been a valid proceeding against Rohner."                 Id. at 722 (emphasis

added).

      ¶11   Following Rohner, we decided Mikrut, which made great

strides in clarifying the concepts of circuit court competency

and subject matter jurisdiction.             Mikrut, 273 Wis. 2d 76, ¶¶1-3,

8-14.     In Mikrut, the circuit court imposed forfeitures on the

defendant for multiple violations of village ordinances.                         Id.,

¶4.     After the defendant exhausted his direct appeal rights, he
filed a motion to vacate the circuit court's order and judgment,
                                        7
                                                         No.     2015AP869



claiming the Village's noncompliance with certain aspects of the

ordinances    deprived   the    circuit   court   of   subject     matter

jurisdiction.    Id., ¶6.      We disagreed and held that any defect

caused by noncompliance with the applicable ordinances affected

court competency but not subject matter jurisdiction.            See id.,

¶¶2-3.   We also concluded that challenges to court competency

are forfeited5 if not timely raised in the circuit court.            Id.,

¶¶30, 38.    Mikrut, however, explained that even when a challenge

to circuit court competency is forfeited:

    [A]   reviewing  court   has   inherent  authority  to
    disregard a [forfeiture] and address a competency
    argument in appropriate cases.       Also, Wis. Stat.
    §§ 751.06 and 752.35 may provide an avenue for
    discretionary review of an otherwise [forfeited]
    competency challenge in extraordinary cases.        In
    addition, Wis. Stat. § 806.07(1)(h) may provide a
    vehicle for collateral relief from judgment on the
    basis of an otherwise [forfeited] competency argument—
    —again, however, only in extraordinary cases.
Id., ¶38.     We did not address Mikrut's competency argument;

instead, we held he forfeited his challenge to court competency

by failing to make a timely objection in the circuit court.

Id., ¶31.


    5
       Although Mikrut used the term "waiver" instead of
"forfeiture," we have since clarified that "[a]lthough cases
sometimes    use   the    words    'forfeiture'  and   'waiver'
interchangeably, the two words embody very different legal
concepts. 'Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right.'" State v. Ndina, 2009 WI 21,
¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)). Properly construed, although
Mikrut says "waiver" it means "forfeiture."


                                    8
                                                                     No.   2015AP869



    ¶12       In   setting    forth   the    law   in    Wisconsin    on   subject

matter jurisdiction and competency and differentiating between

these   two    related       concepts,   Mikrut    relied     on   Article     VII,

Section 8 of the Wisconsin Constitution.                We explained:

    Circuit courts in Wisconsin are constitutional courts
    with general original subject matter jurisdiction over
    "all matters civil and criminal."    Wis. Const. art.
    VII, § 8.     Accordingly, a circuit court is never
    without subject matter jurisdiction.

         A circuit court's ability to exercise its subject
    matter jurisdiction in individual cases, however, 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.

Mikrut, 273 Wis. 2d 76, ¶¶1-2.
    ¶13       Thus, Rohner and Mikrut contain conflicting language.

In the former6 we determined that a circuit court lacked subject
matter jurisdiction in an action where the prosecutor knowingly

mischarged an OWI first offense that should have been criminally


    6
       There are two notable factual differences between Rohner
and this case.     First, Rohner did not appear to involve an
unknown out-of-state prior OWI conviction. Cty. of Walworth v.
Rohner, 108 Wis. 2d 713, 715, 324 N.W.2d 682 (1982).     Second,
the defendant in Rohner filed a motion to dismiss the improperly
charged first-offense OWI in a timely manner by raising it in
the original circuit court action instead of waiting 22 years
and many OWI convictions later. See id.


                                         9
                                                                                   No.     2015AP869



charged    as    a    second-offense           OWI    due     to        a    prior        countable

conviction.       In the latter, we stated that a circuit court's

noncompliance        with    statutory         mandates       may        affect       a    circuit

court's    competency,           but     does        not     negate          subject         matter

jurisdiction.7

     ¶14     We harmonize the conflicting language in Rohner and

Mikrut and determine that mischarging an OWI affects competency,

not subject matter jurisdiction.                 At the time we decided Rohner,

our case law did not clearly distinguish between the concepts of

subject matter jurisdiction and competency.                                  See Xcel Energy

Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8, 349 Wis. 2d 234, 833

N.W.2d 665      (explaining       that    older       case        law       does    not    clearly

differentiate between the two concepts).                          Our decision in Mikrut

further clarified Wisconsin's jurisprudence on the distinct, but

related concepts of subject matter jurisdiction and competency.

Although     Rohner         referred      to     a     lack         of       subject        matter

jurisdiction         due    to   noncompliance             with     state          statutes,     we

clarified, in Mikrut, that noncompliance with statutory mandates
affects only a court's competency and will never affect its

     7
       As a result of the conflicting language in Mikrut and
Rohner, the court of appeals has reached different results in a
series of recent unpublished opinions involving mischarged
first-offense OWIs.    Compare, e.g., State v. Navrestad, No.
2014AP2273, unpublished slip op. (Wis. Ct. App. July 2, 2015)
(following Mikrut and determining that the circuit court lacked
competency) with City of Stevens Point v. Lowery, No. 2014AP742,
unpublished slip op. (Wis. Ct. App. Feb. 5, 2015) (following
Rohner and determining that the circuit court lacked subject
matter jurisdiction) and Clark Cty. v. Potts, No. 2012AP2001,
unpublished slip op. (Wis. Ct. App. March 28, 2013) (same).


                                           10
                                                                   No.       2015AP869



subject       matter     jurisdiction.8       As     a   result,       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.                   Accordingly, we

withdraw      any   language    from   Rohner      and   any   other     case    that

suggests otherwise.

       ¶15    Our decision to withdraw such language leaves intact

Rohner's holding "that the state has exclusive jurisdiction over

a second offense for drunk driving."               See Rohner, 108 Wis. 2d at

716.       Furthermore, nothing in our decision today alters Rohner's

confirmation of our state's policy to strictly enforce drunk

driving laws.9         See id. at 721.

       ¶16    Finally, Booth Britton relies on State v. Bush, 2005

WI 103, ¶18, 283 Wis. 2d 90, 699 N.W.2d 80, to assert that the

circuit court did not have subject matter jurisdiction in the

1992 OWI action because "[i]f a complaint fails to state an

       8
       The fact that Mikrut did not cite to Rohner in clarifying
the concepts of subject matter jurisdiction and court competency
does not impact our decision.   See Mikrut, 273 Wis. 2d 76, ¶42
(Abrahamson, C.J., concurring) (recognizing that Mikrut "cast[]
great doubt" on many prior opinions not specifically discussed
by the opinion).
       9
       Although under our decision today Booth Britton's 1992
undercharged OWI first-offense conviction stands, we note that
affirming the circuit court's decision to vacate the 1992
conviction with prejudice would do nothing to further our
state's policy of strictly enforcing OWI laws.           Instead,
affirming the circuit court's dismissal with prejudice would
erase the 1992 conviction, prevent it from being counted in
subsequent OWI prosecutions, and forever prohibit the State from
correctly charging Booth Britton for the 1992 OWI offense.


                                         11
                                                                        No.     2015AP869



offense known at law, no matter civil or criminal is before the

court, resulting in the court being without jurisdiction in the

first instance."            Booth Britton specifically argues that the

circuit court was without subject matter jurisdiction because "a

second offense criminal OWI charged as a first offense civil OWI

is not an offense known at law."                 Put differently, "[w]here the

offense charged does not exist, the trial court lacks [subject

matter] jurisdiction."           State v. Christensen, 110 Wis. 2d 538,

542,    329    N.W.2d 382     (1983).      Booth     Britton's        argument       fails

because first-offense and second-offense OWIs are both offenses

known at law as set forth in our statutes.                          See Wis. Stat.

§§ 346.63(1), 346.65(2)(am)1.-2.             In addition, Booth Britton was

charged with a first-offense OWI, an offense that irrefutably

exists       under    our   statutes.        See     Wis.     Stat.    §§ 346.63(1),

346.65(2)(am)1.         The parties appear to agree that Booth Britton

was mischarged in 1992 because the City Attorney's office failed

to discover the prior first-offense Minnesota OWI and because

she    failed    to   disclose   it.       The     fact     she   should      have    been
charged with a second-offense OWI, which would have increased

the penalty imposed when convicted in 1992, does not make her

1992 drunk-driving offense lawful conduct.

       ¶17    Booth Britton's argument fails for another reason as

well:        Bush's    conclusion   that     a     court    lacks     subject    matter

jurisdiction if a complaint fails to state an offense known at

law is not entirely accurate.               See Bush, 283 Wis. 2d 90, ¶18.

Bush states:         "If a complaint fails to state an offense known at
law, no matter civil or criminal is before the court, resulting
                                        12
                                                                             No.    2015AP869



in the court being without jurisdiction in the first instance."

Id., ¶18 (emphasis added).                A court, however, cannot be without

jurisdiction "in the first instance" because when "a complaint

fails to state an offense known at law," id., the court must

retain subject matter jurisdiction to dispose of the matter.

      ¶18    We    also     clarify        Bush's         brief    discussion       of    the

interplay     between           subject      matter       jurisdiction        and    facial

challenges to the constitutionality of statutes.                           Id., ¶17.          In

Bush, where the constitutionality of a statute was challenged,

the court asserted that "[i]f a statute is unconstitutional on

its face, any action premised upon that statute fails to present

any civil or criminal matter in the first instance" and "if the

facial attack on the statute were correct, the statute would be

null and void, and the court would be without the power to act

under the statute."              Id. (emphasis added).              In Bush, the court

construed    a     facial       challenge     to     the     constitutionality           of   a

statute as implicating a court's subject matter jurisdiction:

"We   conclude      that    because       Bush      has     facially      challenged      the
constitutionality          of    chapter     980,     his    challenge       goes    to   the

subject matter jurisdiction of the court."                            Id., ¶19.           Bush

ultimately        concluded        that      chapter        980      is    not      facially

unconstitutional.          Id., ¶40.          If, as Bush suggests, a facially

unconstitutional          statute      negates        a     court's       subject    matter

jurisdiction, the court would be constrained from ever ruling on

the   constitutionality           of   the    statute.            However,    "no   circuit

court   is    without       subject        matter     jurisdiction           to    entertain
actions of any nature whatsoever."                        Mikrut, 273 Wis. 2d 76, ¶8
                                              13
                                                                        No.     2015AP869



(quoting Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790

(1982)).10       Bush   likely meant that if a statute is facially

unconstitutional,       the   court   lacks       the   power      to     enforce      it

because such statute would be void.                  We withdraw any language

from    Bush    purporting    to   impair      the   ability       of     a    court   to

exercise its subject matter jurisdiction over challenges to the

constitutionality of a statute.

       ¶19     Based on the Wisconsin Constitution's broad grant of

subject matter jurisdiction to circuit courts as well as this

court's      clarification    of   the        principles     of    subject        matter

jurisdiction      and   competency    in      Mikrut,   we     conclude        that    the

circuit court had subject matter jurisdiction over the 1992 OWI

first-offense      action.     Therefore,        the    1992      civil       forfeiture



       10
       We recognize that the broad constitutional grant of
subject matter jurisdiction to the circuit court is subject to
the phrase "[e]xcept as otherwise provided by law."   See Wis.
Const. art. VII, § 8. This phrase, however,

       only   allows  for   a   legislative  reallocation  of
       jurisdiction from the circuit court to another court.
       It does not permit the legislature to divest the
       constitutional grant of jurisdiction from the unified
       court system; and under the unified system created by
       the amendment of 1977, original jurisdiction is vested
       wholly in the circuit court.

Eberhardy v. Circuit Court for Wood Cty., 102 Wis. 2d 539, 550,
307 N.W.2d 881 (1981).    Put differently, this limiting phrase
forecloses the legislature from enacting a statute that would
circumscribe the broad constitutional grant of subject matter
jurisdiction to circuit courts. See Xcel Energy Servs., Inc. v.
LIRC, 2013 WI 64, ¶27, 349 Wis. 2d 234, 833 N.W.2d 665; Mikrut,
273 Wis. 2d 76, ¶8; Eberhardy, 102 Wis. 2d at 549-50.


                                         14
                                                                               No.    2015AP869



judgment is not void for lack of subject matter jurisdiction

under Wis. Stat. § 806.07(1)(d).

                                              B

       ¶20   Having determined that the circuit court had subject

matter jurisdiction over the 1992 OWI, we next consider the

circuit      court's     competency        to       exercise       its    subject       matter

jurisdiction.        See Vill. of Elm Grove v. Brefka, 2013 WI 54,

¶16,   348    Wis. 2d 282,        832      N.W.2d 121          ("The     circuit       court's

determination of competency refers to its 'ability to exercise

the subject matter jurisdiction vested in it' by Article VII,

Section 8 of the Wisconsin Constitution.") (quoting Mikrut, 273

Wis. 2d 76, ¶9).

       ¶21   As    previously         indicated,         a    circuit     court      may   lose

competency to enter judgment in a particular case if statutory

requirements are not met.               Mikrut, 273 Wis. 2d 76, ¶9.                   We have

explained that "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."         Id.         Statutory

noncompliance       results      in    a   lack      of      circuit     court    competency

"[o]nly when the failure to abide by a statutory mandate is

'central to the statutory scheme' of which it is a part . . . ."

Id., ¶10 (citing State v. Bollig, 222 Wis. 2d 558, 567-68, 587

N.W.2d 908        (Ct.    App.        1998)        and       Arreola     v.      State,     199

Wis. 2d 426, 441, 544 N.W.2d 611 (Ct. App. 1996)).                               Even when a

court lacks competency to proceed to judgment, a challenge to


                                              15
                                                                          No.    2015AP869



court competency can be forfeited if not timely raised in the

circuit court.        Mikrut, 273 Wis. 2d 76, ¶38.

       ¶22   Here, the circuit court lacked competency to proceed

to judgment in Booth Britton's 1992 OWI case because mischarging

a second-offense OWI as a first-offense OWI results in a failure

to abide by mandatory OWI penalties central to the escalating

penalty      scheme.        Wisconsin     Stat.          § 346.63(1)(a)         prohibits

operation of a motor vehicle while "[u]nder the influence of an

intoxicant . . . ."            Violations      of    § 346.63(1)         are    penalized

under an escalating penalty scale.                  Wis. Stat. § 346.65(2).             A

first-offense OWI conviction is civil in nature and punishable

by forfeiture.         See Wis. Stat. § 346.65(2)(am)1.11                       Under the

current      OWI     penalty    scheme,     penalties           for   subsequent      OWI

convictions generally depend on the total lifetime number of

convictions        under   Wis.   Stat.     §§ 940.09(1)          and     940.25,    plus

countable     "suspensions,       revocations,           and     other    convictions"

under § 343.307(1).            Wis. Stat. § 346.65(2)(am)2.-7.                    At the

time    of   Booth    Britton's    1992   OWI       in    Eau    Claire    County,    the
escalating penalty scheme was similar to the current penalty

scheme except that it counted "the total number of suspensions,

revocations and convictions" under Wis. Stat. § 343.307(1) in a

five-year period.          Compare Wis. Stat. § 346.65(2)(b)-(e) (1991-

92) with Wis. Stat. § 346.65(2)(am)2.-7.


       11
       The same was true of first-offense OWIs when Booth
Britton was cited for her 1992 OWI in Eau Claire County. See
Wis. Stat. § 346.65(2)(a) (1991-92).


                                          16
                                                                                       No.     2015AP869



       ¶23    The parties agree that Booth Britton's 1990 Minnesota

conviction was a prior countable OWI offense under Wisconsin's

OWI penalty scheme; therefore, her 1992 first-offense OWI in Eau

Claire County was in fact a second-offense OWI, and therefore

should have been charged as a criminal offense.                                        The parties'

analysis      is    correct.            The    legislature's              use    of     "shall"          in

Wisconsin's          OWI        escalating          penalty          scheme,           Wis.         Stat.

§ 346.65(2), is mandatory and, as a result, criminal penalties

are required of all OWI convictions following an OWI first-

offense conviction.               See, e.g., Rohner, 108 Wis. 2d at 717-18;

State    v.    Banks,       105     Wis. 2d 32,           39,       313    N.W.2d 67           (1981).

Furthermore,         Wis.       Stat.    § 343.307(1)(d)             requires          a     court       to

count "[c]onvictions under the law of another jurisdiction that

prohibits      a     person       from . . . using              a    motor        vehicle           while

intoxicated . . . as those or substantially similar terms are

used    in    that    jurisdiction's            laws."          A     Minnesota              OWI    is    a

countable      conviction          under       Wisconsin's           OWI        penalty        scheme.

State v. White, 177 Wis. 2d 121, 125, 501 N.W.2d 463 (Ct. App.
1993). ("Minnesota OWI convictions count as prior convictions

under sec. 346.65(2), Stats., because the Minnesota OWI statute

meets the prerequisites of sec. 343.307.").

       ¶24    The     central       concept         underlying            the     mandatory          OWI

escalating          penalty        scheme           set     forth           in         Wis.        Stat.

§ 346.65(2)(am)            is     exposure          to    progressively                more        severe

penalties for each subsequent OWI conviction as the number of

countable convictions increases.                     See State v. Williams, 2014 WI
64,    ¶30,   355     Wis. 2d 581,            852    N.W.2d 467.                That     Wis.       Stat.
                                                17
                                                                                No.      2015AP869



§ 346.65(2)(am)2.-7.              set    forth    escalating         penalties        for     OWI-

related convictions is apparent from a plain reading of these

statutes.              Compare,         e.g.,     Wis.       Stat.        § 346.65(2)(am)3.

(governing a third-offense OWI conviction and imposing a minimum

of 45 days of imprisonment in the county jail), with Wis. Stat.

§ 346.65(2)(am)4.             (governing        fourth-offense            OWI    convictions,

generally, and imposing a minimum of 60 days of imprisonment);

see also Williams, 355 Wis. 2d 581, ¶32 ("Even a cursory glance

at     the    structure        of    Wis.       Stat.      § 346.65(2)(am)         reveals       a

pattern: the mandatory minimum sentences generally increase with

the number of OWIs.").               In addition, "[t]he statutory history of

Wis. Stat. § 346.65(2) reveals a general trend toward harsher

mandatory minimum sentences as the number of OWIs increases."

Williams, 355 Wis. 2d 581, ¶30.                       As we explained in Williams,

"the     current           statute      makes        eight     different           OWI-offense

distinctions and provides increasing penalties depending on the

number       of     OWIs    the      offender        has     committed      and,      in      some

instances,        on    the    temporal         proximity      of    an    offense       to    the
offender's previous OWI."                 Id.        This escalating penalty scheme

is frustrated if an OWI is mischarged as a civil first offense

rather than a criminal second offense due to an undiscovered

prior countable offense.                 Accordingly, failure to abide by the

mandatory         penalty     scheme      in     Booth      Britton's       1992      OWI     case

resulted in a loss of circuit court competency.

       ¶25    The lack of circuit court competency in this case does

not    end    the      matter,      however.         Booth    Britton      did     not     timely
object to the circuit court's competency in the 1992 circuit
                                                18
                                                                  No.    2015AP869



court action.        In fact, she did not challenge her mischarged

1992 OWI until 2014.             Booth Britton's      considerable      delay    in

raising the issue suggests an attempt to play fast and loose

with the court system, which is something this court frowns

upon.       See    State    v.   Petty,      201   Wis. 2d 337,   346-47,       548

N.W.2d 817 (1996).         We conclude that Booth Britton forfeited her

ability to challenge the 1992 OWI first-offense civil forfeiture

judgment.         We decline to exercise our inherent authority to

reach a challenge that Booth Britton forfeited and then waited

22 years to raise.

                                 IV.   CONCLUSION

    ¶26     We conclude that the circuit court, while retaining

subject matter jurisdiction over the matter, lacked competency

to enter a civil judgment of conviction for a first-offense OWI

that factually should have been charged criminally as a second-

offense OWI due to a prior countable OWI conviction.                        Here,

Booth Britton forfeited her challenge to the circuit court's

competency when she failed to raise any objection to the first-
offense OWI charge in the original 1992 action.



    By the Court.—The order of the circuit court is reversed,

and the cause is remanded.




                                        19
                                                                         No.    2015AP869.ssa




      ¶27    SHIRLEY       S.       ABRAHAMSON,        J.     (dissenting).              The

Wisconsin     Constitution          provides       that     "[e]xcept      as     otherwise

provided     by     law,      the     circuit      court      shall       have     original

jurisdiction in all matters civil and criminal within this state

and   such        appellate     jurisdiction           in    the     circuit       as    the

legislature may prescribe by law."                     Wis. Const. art. VII, § 8

(emphasis added).

      ¶28    The     instant    case     is       an   example      of    the     interplay

between     two    confusing        doctrines      this     court   has    developed      in

interpreting this constitutional provision: a circuit court's

subject matter jurisdiction and a circuit court's competency.1

      ¶29    In addressing whether an error in a proceeding results

in a circuit court's lack of subject matter jurisdiction or lack

of competency, the essential issue is which of two competing




      1
       See State v. Bush, 2005 WI 103, ¶16, 283 Wis. 2d 90, 699
N.W.2d 80   ("[T]he  jurisprudence   concerning  subject matter
jurisdiction and a circuit court's competence to exercise its
subject matter jurisdiction is murky at best.").


                                              1
                                                                 No.   2015AP869.ssa

principles    is    to   govern:   the   validity      of   a   judgment    or   the

finality of a judgment?2

     ¶30    Labeling an error as resulting in a lack of subject

matter jurisdiction gives greater emphasis to the error and the

invalidity of the judgment.          If the circuit court does not have

subject    matter    jurisdiction,       the   error    renders    the     judgment

void.3    A void judgment is forever vulnerable to attack.4



     2
       For discussions of the competing values of validity and
finality in judgments, see, for example, Restatement (Second) of
Judgments § 12 cmt. a at 116-17 (1982); Edward T. Matthews,
Civil Procedure: The Unfortunate Elevation of Finality Over
Validity——Bode v. Minn. Dep't of Natural Res., 28 Wm. Mitchell
L. Rev. 1217, 1218-19 (2002) (discussing a Minnesota Supreme
Court decision that "chose to adopt section 12 of the
Restatement (Second) of Judgements and its preference for
finality instead of adhering to its own precedent which held
that validity was of paramount importance") (footnotes omitted);
Karen Nelson Moore, Collateral Attack on Subject Matter
Jurisdiction: A Critique of the Restatement (Second) of
Judgments, 66 Cornell L. Rev. 534, 534 (1981) ("Courts, as well
as both Restatements [of Judgments], seek to resolve the
conflict between two important policies: insuring that judgments
are rendered only by courts having the power to do so (the
policy of validity) and enforcing a termination point for
litigation after the opportunity for full and fair litigation
(the policy of finality).       The tension between these two
policies is readily apparent.").
     3
       "[T]he traditional doctrine was that a judgment of a court
shown to have lacked subject matter jurisdiction was 'void.'"
Restatement (Second) of Judgments § 12 cmt b at 117 (1982).

     See State v. Campbell, 2006 WI 99, ¶43, 294 Wis. 2d 100,
718 N.W.2d 649.
     4
       See Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648
(1985) ("A void judgment may be expunged by a court at any
time.").


                                         2
                                                           No.   2015AP869.ssa

     ¶31       Labeling an error as resulting in a lack of circuit

court competency gives greater emphasis to the finality of the

judgment rather than any invalidity.           A challenge to competency

may be forfeited.5         Thus, a judgment entered when the circuit

court lacks competency is not forever vulnerable to attack.

     ¶32       The problem in our case law attempting to distinguish

between    a    circuit   court's   subject   matter   jurisdiction    and   a

circuit court's competency is the failure to approach the two in

a   sound,      consistent,   and   analytical   way.      The   cases    are

confusing and imprecise in their use of the terms and in their

application of the terms to the facts of the case.6

     ¶33       At issue in the instant case is a 22-year-old judgment

of conviction for first-offense civil OWI in violation of a

local ordinance prosecuted by the City of Eau Claire.              The error

in the proceeding was that the defendant, Melissa Booth Britton,


     5
       See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273
Wis. 2d 76, 681 N.W.2d 190.

     Mikrut used the word "waiver," but later cases interpret
"waiver" (in the sense Mikrut used that word) to mean
"forfeiture."   See State v. Ndina, 2009 WI 21, ¶¶28-29, 315
Wis. 2d 653, 761 N.W.2d 612.

     The Mikrut court did not address whether mandatory
statutory time limitations can be waived. See State v. Matthew
S., 2005 WI 84, ¶27, 282 Wis. 2d 150, 698 N.W.2d.
     6
       "This confusion has taken on a life of its own over the
years and shows no sign of abating."   Xcel Energy Servs., Inc.
v. LIRC, 2013 WI 64, ¶65, 349 Wis. 2d 234, 833 N.W.2d 665
(Abrahamson, C.J., concurring).


                                       3
                                                                           No.   2015AP869.ssa

had     a    prior        Minnesota      OWI    conviction.             "[T]he    State    has

exclusive jurisdiction over a second offense for drunk driving."

Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 716, 324 N.W.2d 682

(1982).       Thus, Booth Britton should have been prosecuted by the

State       for     violation       of    a     criminal       statute,     second-offense

criminal OWI, not by Eau Claire for first-offense civil OWI for

a violation of a local ordinance.

      ¶34     The        OWI     statutes      create     progressive       penalties      for

successive          OWI     offenses.           "[T]he        legislature's       intent     in

drafting          [the     progressive         penalty     scheme]       was     to   require

criminal proceedings and penalties for a second drunk driving

offense within a five-year period," and the language of the

statutes      "demonstrates           that      the   legislature        intended     that    a

second      offense        for    drunk     driving      be    exclusively       within    the

province of the state."                  Rohner, 108 Wis. 2d at 717-18 (second

emphasis added).

      ¶35     The        question     the      majority       opinion    presents     in   the

instant case is whether the circuit court lacked subject matter

jurisdiction or competency in convicting Booth Britton of first-

offense       civil        OWI.       The      answer     to     this    question     raises

significant public policy issues.

      ¶36     The interests at stake in the instant case regarding

how to characterize the error are governmental and societal.

      ¶37     On the one hand, the public policy requiring a second

(or subsequent) OWI offense be prosecuted as a crime by the
                              4
                                                                         No.   2015AP869.ssa

State, as well as the policy favoring the validity of judgments,

would be advanced by labeling the error in the instant case as a

lack of subject matter jurisdiction; the 22-year-old judgment of

conviction would be void.

    ¶38     On    the   other    hand,       the    public    policy       favoring      the

finality of judgments would be advanced by labeling the error in

the instant case as a lack of circuit court competency.                               If the

error is labeled as a lack of circuit court competency, the

defendant   has     forfeited      her       challenge       to    the     judgment      and

brought her motion for relief from the judgment under Wis. Stat.

§ 806.07 too late; the 22-year-old judgment of conviction would

stand.

    ¶39     I write separately to address two areas of the law

raised by the instant case:

    I.      The    instant      case    is    a    motion    based       on    Wis.    Stat.

            § 806.07 and should be addressed as a motion under

            that statute; and

    II.     The instant case involves

            A.     interpreting and applying Article VII, Section 8

                   of the Wisconsin Constitution; and

            B.     analyzing           the         case      law         defining        and

                   differentiating           between      circuit        court    "subject

                   matter        jurisdiction"              and      circuit           court

                   "competency."

The case law is confusing and based on misunderstandings.
                                5
                                                           No.   2015AP869.ssa

     ¶40   When I apply precedent in addressing these two areas

of the law, I conclude that the 22-year-old first-offense civil

OWI judgment against Booth Britton is void under Wis. Stat.

§ 806.07 because the circuit court did not have subject matter

jurisdiction under the Wisconsin Constitution.

     ¶41   Unfortunately, the majority opinion rewrites precedent

and fails to clarify or develop the law.7

     ¶42   For   the    reasons    set   forth,    I   dissent   and    write

separately.

                                     I

     ¶43   I begin where the instant case began, with a motion

under Wis. Stat. § 806.07(1) and (1)(d) in the Circuit Court for

Eau Claire County to vacate the first-offense civil OWI judgment

entered against Booth Britton in 1992.8

     ¶44   "Sec[tion]     806.07    attempts      to   achieve   a     balance

between the competing values of finality and fairness in the

     7
       Although I do not agree with several other aspects of the
majority opinion, I do not address them.
     8
       The majority opinion suggests that "Booth Britton's
considerable delay in raising the issue suggests an attempt to
play fast and loose with the court system, which is something
this court frowns upon." Majority op., ¶25. This criticism is
unwarranted.   Nothing in the record or law suggests that Booth
Britton is attempting to play fast and loose with the court
system. Rather, Booth Britton argues that the 1992 judgment is
void and that there is no time limit on motions to vacate void
judgments.   See Neylan, 124 Wis. 2d at 97.     Booth Britton's
position has significant support.   Indeed, recent decisions of
the court of appeals have divided on the question presented in
the instant case. See infra, n.38.

                                     6
                                                                No.   2015AP869.ssa

resolution of a dispute.       The court must construe section 806.07

to achieve this balance."9

     ¶45    The 1992 judgment imposed a civil forfeiture under a

local ordinance for a first-offense civil OWI.                   Because Booth

Britton had previously been convicted in Minnesota of OWI at the

time Eau Claire charged her with first-offense civil OWI, the

civil charge did not apply to her.               She should have been charged

with and punished for a second-offense criminal OWI under the

escalating penalty scheme delineated in the statutes.                       Civil

penalties    are   not    authorized       for    a   second-offense      OWI    in

Wisconsin.    See Rohner, 108 Wis. 2d at 721.

     ¶46    Without   a    civil   statute        prohibiting    second-offense

OWI, Booth Britton could not be prosecuted for a civil OWI.                     The

facts upon which the prosecution of Booth Britton was based must

fall within the statutory description of the offense with which

she was charged.         The prosecution of any second or subsequent




     9
       State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 542, 363
N.W.2d 419 (1985) (citing Patricia Graczyk, The New Wisconsin
Rules of Civil Procedure, Chapters 805–807, 59 Marq. L. Rev.
671, 727 (1976), and explaining that the court refers to
Wisconsin cases interpreting § 806.07 and to federal cases
interpreting Rule 60(b) of the Federal Rules of Civil Procedure
upon which § 806.07 is based); see also Edland v. Wis. Phys.
Serv. Ins. Corp., 210 Wis. 2d 638, 644, 563 N.W.2d 519 (1997)
(citing M.L.B. with approval).


                                       7
                                                                   No.   2015AP869.ssa

offense OWI is "within the exclusive province of the state to

prosecute as a crime."           See Rohner, 108 Wis. 2d at 721.10

     ¶47    In   seeking    relief       from    the    first-offense     civil     OWI

judgment entered in Eau Claire, Booth Britton relied on Wis.

Stat.     § 806.07(1)      and     (1)(d),       which       provides    that      "the

court . . . may relieve a party or legal representative from a

judgment" if "[t]he judgment is void . . . ."11

     ¶48    Although Wis. Stat. § 806.07(2) further requires that

motions for relief from judgments be made "within a reasonable

time,"    the    court   has     held    that    "[a]    void     judgment   may    be

expunged by a court at any time."                 See Wis. Stat. § 806.07(2);


     10
        The   majority  opinion  (¶14)   asserts  that   it  is
"harmonizing" Rohner and Mikrut by withdrawing language from
Rohner.    The majority opinion creates additional confusion by
withdrawing language not only from Rohner but also from "any
other case."

     To my mind, withdrawing language from a prior case or
unidentified prior cases amounts to overruling those cases in
part or in whole, not harmonizing them.      Withdrawing language
from unidentified prior cases is a recipe for further confusion.

     The    majority     opinion        does    not    withdraw    the   language     I
quote.
     11
       Wisconsin         Stat.     § 806.07(1)         and    (1)(d)     provide     as
follows:

     On motion and upon such terms as are just, the court,
     subject to subs. (2) and (3), may relieve a
     party . . . from a judgment . . . for the following
     reasons:

            . . . .

     (d) the judgment is void.


                                           8
                                                                           No.    2015AP869.ssa

Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985).12

If a judgment is void, it cannot acquire validity because of the

lapse of time, and the judgment should be treated as legally

ineffective in a subsequent proceeding.                          See Neylan, 124 Wis. 2d

at 98-100.

       ¶49        Therefore, the issue presented is whether the first-

offense civil OWI judgment against Booth Britton is void under

Wis.    Stat.       § 806.07(1)(d).            In    deciding       this    § 806.07(1)(d)

issue, the majority opinion addresses whether the Eau Claire

circuit court had subject matter jurisdiction.

       ¶50        The majority opinion gives two reasons for concluding

that        the     Eau     Claire      circuit          court     had     subject     matter

jurisdiction to enter judgment for first-offense civil OWI under

the facts of the instant case.

       ¶51        First,    the   majority      opinion          repeatedly      recites    and

perpetuates         by     rote   the   court's          pronouncement      in    Village    of

Trempealeau          v.     Mikrut,     2004        WI     79,    273    Wis. 2d 76,        681

N.W.2d 190, that a circuit court is never without subject matter

jurisdiction.            See, e.g., majority op., ¶¶8, 12, 14.




       12
       In Neylan, 124 Wis. 2d at 97, after reviewing the history
of Wis. Stat. § 806.07 and its federal counterpart, Federal Rule
of Civil Procedure 60(b), the court concluded that although the
"reasonable time limit" stated in § 806.07 and the Federal Rule
seem literally to apply to a motion to vacate a void judgment, a
motion to vacate a void judgment may be brought at any time.


                                               9
                                                                      No.    2015AP869.ssa

       ¶52     "Never"   in     Mikrut,    however,       does    not       mean     "Never

Ever."

       ¶53     Our cases recognize that exceptions exist to Mikrut's

broad       pronouncement      that   a   circuit    court       is     never      without

subject matter jurisdiction.13            I return to this issue in Part II

of this dissent.

       ¶54     Second,   the    majority       opinion    (at    ¶17)       states    that

State v. Bush, 2005 WI 103, ¶18, 283 Wis. 2d 90, 699 N.W.2d 80,

was "not entirely accurate" in stating that a circuit court

lacks subject matter jurisdiction if the error in a proceeding

is the failure to state an offense known at law.                       I address this

aspect of the majority opinion in this part of the dissent.

       ¶55     The   majority     opinion       asserts     that      Bush      is    "not

entirely accurate" because "when 'a complaint fails to state an

offense known at law,' the court must retain subject matter

jurisdiction to dispose of the matter."14                   The majority opinion

attempts to revive a straw man that was knocked down a long time

ago.


       13
       See,    e.g.,   Campbell,    294   Wis. 2d 100,  ¶¶45-56
(unanimously acknowledging that "[t]here are exceptions to
[Mikrut's] principles about subject matter jurisdiction and
competency," stating exceptions for a judgment premised upon an
unconstitutional statute and a judgment premised on a criminal
complaint that failed to allege any offense known at law, and
recognizing that "there may be other exceptions").
       14
       Majority op., ¶17 (internal citation omitted) (quoting
Bush, 283 Wis. 2d 90, ¶18).


                                          10
                                                                        No.   2015AP869.ssa

     ¶56    Obviously        a        circuit    court      has     jurisdiction          to

determine    its    own     jurisdiction         (and       thus    jurisdiction         "to

dispose of the matter," majority op., ¶17).                         The law has long

avoided     the    paradox       that     results      if    a     court      is   without

jurisdiction to determine its jurisdiction.15

     ¶57    But the fact that a circuit court has jurisdiction to

determine its own jurisdiction is irrelevant to the real issue

Bush, the parties, and I address:                 Is a judgment rendered on a

civil or criminal offense not known at law void?                           The answer to

this question is yes.

     ¶58    The precept that the failure to state an offense known

at law is a jurisdictional defect is well-accepted:                             A circuit

court lacks subject matter jurisdiction to enter judgment in a

proceeding    based    on        an    offense   not     known     at    law,      and   any




     15
       See, e.g., City of Milwaukee v. Cohen, 57 Wis. 2d 38, 43-
44, 203 N.W.2d 633 (1973) ("A court must have subject-matter
jurisdiction in order to have the authority to hear and
determine the primary object of the action.     In order to make
this determination this court has jurisdiction to determine
jurisdiction. That is, whether the circuit court and this court
have jurisdiction to hear the instant case.") (citing State v.
Omernik, 54 Wis. 2d 220, 194 N.W.2d 617 (1972); McCabe v.
Milwaukee, 53 Wis. 2d 34, 191 N.W.2d 926 (1971); Brachtl v. DOR,
48 Wis. 2d 184, 179 N.W.2d 921 (1970); Bublitz v. Matulis, 34
Wis. 2d 23, 148 N.W.2d 64 (1967); Monahan v. Dep't of Taxation,
22 Wis. 2d 164, 125 N.W.2d 331 (1963)); Restatement (Second) of
Judgments § 11 cmt. c at 110 (1982) ("[A] court has authority to
determine its own authority, or as it is sometimes put,
'jurisdiction to determine its jurisdiction.'").


                                            11
                                                              No.   2015AP869.ssa

judgment premised on an offense not known at law is void.16

Thus,    without    a   civil   or   criminal    statute   prohibiting     drunk

driving,    an     individual    could    not    be   prosecuted    for    drunk

driving, and if he or she were convicted, the judgment would be

void.      "In   short,   Wisconsin      law    clearly   establishes     that   a




    16
       This proposition has been repeated both before and after
Bush. See, e.g., Campbell, 294 Wis. 2d 100, ¶45 ("[A] criminal
complaint that fails to allege any offense known at law is
jurisdictionally defective and void"); State v. Christensen, 110
Wis. 2d 538, 542, 329 N.W.2d 382 (1983) ("Where the offense
charged does not exist, the trial court lacks jurisdiction.");
State v. Schneider, 60 Wis. 2d 563, 567, 211 N.W.2d 630, 633
(1973) (stating that a complaint that charges no offense known
at law is jurisdictionally defective and cannot sustain a
conviction); Champlain v. State, 53 Wis. 2d 751, 754, 193
N.W.2d 868 (1972) (a complaint which charges no offense is
jurisdictionally defective and the conviction is void); State v.
Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965) ("If the
defendant is correct that no offense is charged then the court
had no jurisdiction to proceed to judgment."); In re Carlson,
176 Wis. 538, 545, 186 N.W. 722 (1922) ("[I]f the information
charged no offense the court had no jurisdiction to proceed to
judgment," citing Article I, Section 7 of the Wisconsin
Constitution); State v. Howard, 139 Wis. 529, 534, 121 N.W. 133
(1909) (holding that when the facts do not fall within the
statutory offense charged, the sentence and judgment of
conviction must be reversed because the information does not
charge an offense known at law); State v. Briggs, 218
Wis. 2d 61, 65, 579 N.W.2d 783 (Ct. App. 1998) (Roggensack, J.,
authored; "[T]here is no crime of attempted felony murder in the
State of Wisconsin; therefore, the circuit court was without
subject matter jurisdiction to accept a plea, enter a
conviction, and sentence [the defendant] for attempted felony
murder."); State v. Cvorovic, 158 Wis. 2d 630, 631, 462
N.W.2d 897 (Ct. App. 1990) (concluding that because Wisconsin
law does not recognize the offense of attempted fourth degree
sexual assault, a conviction for that offense was void for lack
of subject matter jurisdiction).

                                         12
                                                                      No.    2015AP869.ssa

judgment resulting from a complaint or information which charges

no offense recognized in law is void ab initio."17

       ¶59       The   premise   underlying        Bush    and   the        other        cases

addressing offenses not known at law is simple:                        Circuit courts

have original jurisdiction over all matters civil and criminal,

except as otherwise provided by law.                   See Wis. Const. art. VII,

§ 8.        If the offense is not known at law, no offense, civil or

criminal, is before the circuit court; as a result, the circuit

court       is   without    subject     matter      jurisdiction       in     the    first

instance.         See Bush, 283 Wis. 2d 90, ¶18.

       ¶60       The majority opinion neglects the teachings of these

many,       long-standing     cases     by    simply      asserting     that        in    the

instant       case     "first-offense    and      second-offense      OWIs     are        both

offenses known at law as set forth in our statutes."                            Majority

op., ¶16 (citing Wis. Stat. §§ 346.63(1), 346.65(2)(am)1.-2.).

In the majority's view            (¶16), Booth Britton was charged and

convicted of an offense known at law because she "was charged

with a first-offense OWI, an offense that irrefutably exists

under our statutes."

       ¶61       These sentences and the assertion that Bush is "not

entirely accurate" are the entirety of the majority opinion's

conclusory explanation that Booth Britton's offense was known at

law.

       17
            Briggs, 218 Wis. 2d at 68-69.

                                             13
                                                                   No.    2015AP869.ssa

      ¶62    Apparently the majority opinion (¶16) believes that

circuit courts have subject matter jurisdiction over any and all

OWI-related conduct, regardless of the nature of the conduct or

the text of the statutes.             True, a first-offense civil OWI is

proscribed by the statutes.            The facts upon which Booth Britton

was charged and found guilty, however, do not comport with the

proscribed civil offense.

      ¶63    By granting circuit courts subject matter jurisdiction

over any and all OWI-related conduct regardless of the text of

the statutes, the majority opinion rewrites legal history and

usurps legislative power.              In our system of government, the

legislature       defines    civil    and    criminal        offenses    against   the

government.

      ¶64    If    an   individual    may       be   found    guilty    of   a   first-

offense civil OWI even though the individual has a prior OWI

conviction, then what is left of the rule espoused in numerous

cases      that     a   circuit      court      is     without     subject       matter

jurisdiction when "a complaint fails to state an offense known

at law . . . ?"18       What is left of Rohner's language, 108 Wis. 2d

at 716, (left intact by the majority opinion, ¶15) that second

(or     subsequent)      OWI      offenses       are    within      the      exclusive

jurisdiction of the state?


      18
           See    majority   op.,    ¶17     (quoting    Bush,    283     Wis. 2d 90,
¶18).


                                           14
                                                                          No.    2015AP869.ssa

       ¶65    The majority opinion does not answer these questions.

Instead, the majority opinion moves quickly from labeling Bush

"not    entirely     accurate"      (¶17)      and      describing       all     OWI-related

conduct (including the conduct that was the basis of the charge

against      Booth   Britton)       as    offenses        known     at     law     (¶16)      to

discussing       whether      circuit          courts        have        subject      matter

jurisdiction to determine the constitutionality of a statute.

Majority op., ¶18.          Of course they do.             See Marbury v. Madison,

5 U.S. (1 Cranch.) 137, 178 (1803).19

       ¶66    Bush   does    not    purport        to    impair     the    ability       of    a

circuit court to decide challenges to the constitutionality of a

statute.        Indeed,     the    majority        opinion    recognizes          that     Bush

addressed a challenge to the constitutionality of chapter 980 of

the statutes.20

       ¶67    In so doing, Bush recognized that a circuit court has

jurisdiction to address whether a statute is unconstitutional on

its face.       In addition, Bush declared in ¶¶18-19 that a circuit

court's      judgment     premised       on   an     unconstitutional            statute      is


       19
       See Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 178
(1803) ("So if a law be in opposition to the constitution; if
both the law and the constitution apply to a particular case, so
that the court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case.    This is of
the very essence of judicial duty.").
       20
            See majority op., ¶18 (citing Bush, 283 Wis. 2d 90, ¶¶19,
40).

                                              15
                                                                            No.    2015AP869.ssa

void.21        The court said the same thing in State v. Campbell, 2006

WI 99, ¶45, 294 Wis. 2d 100, 718 N.W.2d 649, declaring:                                 "Thus,

if   a        statute    is    unconstitutional           on    its   face,     any   judgment

premised upon that statute is void."

         ¶68     Nevertheless, the majority opinion (¶18) withdraws any

language in Bush "purporting to impair the ability of a court to

exercise its subject matter jurisdiction over challenges to the

constitutionality of a statute."                         Because Bush does not purport

to   impair        the     ability       of    a     circuit      court    to     address   the

constitutionality              of   a   statute,         this   aspect    of    the   majority

opinion does no damage to Bush or our law.                            The majority opinion

cannot withdraw language in Bush that does not exist.                                    Thus,

Bush is undisturbed.

         ¶69     Turning from the majority's analysis of Bush to the

majority's analysis of Rohner, the majority acknowledges that it

leaves intact "Rohner's holding 'that the state has exclusive

jurisdiction            over   a    second     offense      for    drunk    driving,'"      and

asserts         that    "nothing        in    our    decision     today    alters     Rohner's

confirmation of our state's policy to strictly enforce drunk




         21
              See Bush, 283 Wis. 2d 90, ¶17.


                                                    16
                                                               No.    2015AP869.ssa

driving laws."22         See majority op., ¶15 (quoting Rohner, 108

Wis. 2d at 716).

     ¶70    Nevertheless,      the     majority      opinion        abandons   the

legislatively     adopted    "state    policy   of   strict     enforcement     of

these laws."     Rohner, 108 Wis. 2d at 718.           The majority replaces

this legislative policy with a court-adopted policy favoring the

finality of OWI judgments.           Rohner specifically rejected giving

municipalities and district attorneys discretion over whether to

charge otherwise criminal OWIs as first-offense civil OWIs.23

Yet under the majority opinion, what would prevent a state or

local     governmental      official    from    choosing       to     charge   and

prosecute    a   first    offense    civil   OWI   when   a    criminal    charge

should be brought?24




     22
       The OWI statutes "requir[e] that criminal penalties be
imposed for a second offense," and "the legislature intended a
second offense for drunk driving to be within the exclusive
province of the state to prosecute as a crime."    Rohner, 108
Wis. 2d at 717, 721.
     23
          See Rohner, 108 Wis. 2d at 718.
     24
       The majority opinion distinguishes the instant case from
Rohner, stating that the instant case involves an "unknown out-
of-state prior OWI conviction." Majority op., ¶13 n.6. Nothing
in the record in the instant case reveals whether Booth
Britton's prior Minnesota OWI conviction was (or was not) known
at the time of her 1992 conviction.      Indeed, the record from
Booth Britton's 1992 OWI conviction has been destroyed.      The
majority opinion assumes facts not in the record.


                                       17
                                                                            No.      2015AP869.ssa

     ¶71    Ignoring the legislative policy of "strict enforcement

of drunk driving laws,"25 the majority adopts a policy favoring

the finality of judgments over the well-established rule that a

judgment of conviction for a civil or criminal offense not known

at law is void.

     ¶72    In    contrast,          I    view   Rohner       and     Bush      as     correctly

stating     the    legislative            policy       in     the     OWI     statutes        and

emphasizing the invalidity of judgments based on offenses not

known at law.

     ¶73    Thus, I conclude that the Eau Claire civil judgment is

void under Wis. Stat. § 806.07(1) and (1)(d); the facts of the

instant    case    do       not   fit     any    common       law   or    statutory         civil

offense.        "Wisconsin law clearly establishes that a judgment

resulting    from       a    complaint      or       information      which        charges       no

offense recognized in law is void ab initio."26                          Accordingly, the

circuit     court's         order    granting         Booth     Britton's          Wis.     Stat.

§ 806.07(1)(d)       motion         for    relief      from     the      void      Eau     Claire

judgment should be affirmed.

                                                II

     ¶74    I     turn      now     to    address      the    second        area      of   law    I

outlined earlier, namely:



     25
          Rohner, 108 Wis. 2d at 721.
     26
          Briggs, 218 Wis. 2d at 68-69.


                                                18
                                                                    No.    2015AP869.ssa

      A.     interpreting and applying Article VII, Section 8 of

             the Wisconsin Constitution; and

      B.     analyzing the case law defining and differentiating

             between       "subject           matter         jurisdiction"           and

             "competency."

The case law is confusing and based on misunderstandings.

                                          A

      ¶75    The     majority      opinion,      relying       on     Mikrut,        273

Wis. 2d 76, concludes that under Article VII, Section 8 of the

Wisconsin Constitution "a circuit court is never without subject

matter     jurisdiction."       See,    e.g.,   majority      op.,    ¶¶8,     12,   14

(emphasis added).          This statement is just wrong.                   Repeating,

repeating, and repeating it does not make it correct.

      ¶76    Two   years        after    Mikrut,       the    court       unanimously

acknowledged that there are exceptions to Mikrut's proclamation.

See      Campbell,        294      Wis. 2d 100,         ¶¶45-56           (unanimously

acknowledging      that     "[t]here      are    exceptions          to    [Mikrut's]

principles about subject matter jurisdiction and competency,"

stating two exceptions, and recognizing that "there may be other

exceptions").

      ¶77    The   Wisconsin      Constitution         provides:          "Except     as

otherwise provided by law, the circuit court shall have original

jurisdiction in all matters civil and criminal within this state

and   such     appellate        jurisdiction     in     the     circuit       as     the

legislature may prescribe by law."              Wis. Const. art. VII, § 8.
                                19
                                                       No.   2015AP869.ssa

     ¶78   Numerous   cases   interpreting   the   current   version   of

Article VII, Section 8 (as amended in 1977) have omitted any

reference to the language "except as otherwise provided by law"

and have concluded that a circuit court is never without subject

matter jurisdiction.27

     ¶79   Numerous   cases   interpreting   the   current   version   of

Article VII, Section 8 (as amended in 1977) have also concluded




     27
       For cases referring to post-1977 Article VII, Section 8
of the Wisconsin Constitution that erroneously declare that
circuit courts have unlimited subject matter jurisdiction and
omit any reference to the "except" clause, see, for example,
Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27, 349
Wis. 2d 234, 833 N.W.2d 665 ("Given this broad constitutional
grant of subject matter jurisdiction to the circuit courts, we
have recognized that 'no circuit court is without subject matter
jurisdiction to entertain actions of any nature whatsoever.'");
In re Ambac Assurance Corp., 2012 WI 22, ¶28, 339 Wis. 2d 48,
810 N.W.2d 450 ("It is axiomatic that a circuit court is never
without subject matter jurisdiction."); DaimlerChrysler v. LIRC,
2007 WI 15, ¶21, 299 Wis. 2d 1, 727 N.W.2d 311 ("Under the
Wisconsin Constitution, circuit courts in Wisconsin have general
original subject matter jurisdiction over 'all matters civil and
criminal.'").


                                  20
                                                          No.   2015AP869.ssa

that        Article   VII,   Section   8's   grant   of   subject    matter

jurisdiction cannot be revoked by statute.28


       28
       For cases referring to post-1977 Article VII, Section 8
of the Wisconsin Constitution and erroneously declaring that the
legislature   cannot    limit  or  revoke   a   circuit   court's
jurisdiction, see, for example, Xcel Energy Servs., Inc. v.
LIRC, 2013 WI 64, ¶27, 349 Wis. 2d 234, 833 N.W.2d 665
("[B]ecause subject matter jurisdiction is conferred on the
courts by the constitution, it cannot be revoked by statute.");
State v. Matthew S., 2005 WI 84, ¶16, 282 Wis. 2d 150, 698
N.W.2d 631 (while the Wisconsin Constitution confers subject
matter jurisdiction, the legislature may limit the ability of
circuit courts to exercise it through statutes effecting
competency, not subject matter jurisdiction); Stern v. Wis.
Employment Relations Comm'n, 2006 WI App 193, ¶24, 296
Wis. 2d 306, 722 N.W.2d 594 ("[S]ubject matter jurisdiction is
plenary and constitutionally-based and is not affected by
statutes . . . ."); Amy Z. v. Jon T., 2004 WI App 73, ¶6, 272
Wis. 2d 662, 679     N.W.2d 903 ("The circuit courts possess
'plenary' jurisdiction by virtue of Wis. Const. Art. VII, § 8,
and that jurisdiction, in the sense of judicial power to act,
does not depend on legislative authorization. . . . Thus '[n]o
circuit court is without subject matter jurisdiction to
entertain actions of any nature whatsoever.'") (quoted sources
omitted); State v. Bollig, 222 Wis. 2d 558, 565, 587 N.W.2d 908,
911 (Ct. App. 1998) ("A circuit court has subject matter
jurisdiction, conferred by the state constitution, to consider
and determine any type of action . . . ."); Cepukenas v.
Cepukenas, 221 Wis. 2d 166, 170, 584 N.W.2d 227 (Ct. App. 1998)
("So although a court is vested with subject matter jurisdiction
by the constitution, the legislature may enact statutes limiting
a court's exercise of subject matter jurisdiction.        Such a
legislative enactment affects that court's competency to proceed
rather than its subject matter jurisdiction."); Kohler Co. v.
Wixen, 204 Wis. 2d 327, 336-37, 555 N.W.2d 640 (Ct. App. 1996)
("Although a court is vested with subject matter jurisdiction by
the constitution, the legislature may enact statutes which limit
a court's power to exercise subject matter jurisdiction.     Such
legislative measures affect a court's competency rather than its
jurisdiction."). Compare State v. Annala, 168 Wis. 2d 453, 462,
484 N.W.2d 138 (1992) (recognizing that "Article VII, sec. 8 of
the Wisconsin Constitution and sec. 753.03, Stats., vests within
the circuit court the power to hear and determine all civil and
criminal actions and proceedings unless exclusive jurisdiction
is given to some other court. . . .     Section 48.12(1) Stats.,
                                                      (continued)
                                21
                                                                     No.   2015AP869.ssa

       ¶80   These broad pronouncements in the cases are "the kind

of hyperbole that sometimes creeps into opinions . . . ."29 These

pronouncements have detached our jurisprudence regarding Article

VII,    Section   8    from    the   very    text   this     court    is   supposedly

interpreting.         Ignoring a key phrase in the state constitution

is not an acceptable form of constitutional interpretation.30

       ¶81   Properly interpreted, Article VII, Section 8 allows

the    legislature     to     divest   circuit      courts    of     subject    matter




expressly provides that the juvenile [branch of the circuit]
court   shall   have  exclusive jurisdiction"  over  certain
actions . . . .").
       29
       United States v. Dessart, ___ F.3d ___, ___ (7th Cir.
2016) (Posner, J., concurring) (quoting United States v.
Curescu, 674 F.3d 735, 741 (7th Cir. 2012)).
       30
       See Thompson v. Craney, 199 Wis. 2d 674, 680, 546
N.W.2d 123 (1996) (stating, as prior and subsequent cases have
stated, that when interpreting the Wisconsin Constitution, the
court should look to "the plain meaning of the words in the
context used; the constitutional debates and the practices in
existence at the time of the writing of the constitution; and
the earliest interpretation of the provision by the legislature
as manifested in the first law passed following adoption.").


                                            22
                                                             No.   2015AP869.ssa

jurisdiction so long as the legislature places the power to hear

those cases in other courts within the unified court system.31

     ¶82   The majority opinion acknowledges this limitation in a

footnote   (¶18,   n.10),   but   then      missteps,    asserting   that    the

constitutional     phrase   "except    as    otherwise    provided    by    law"

"forecloses the legislature from enacting a statute that would

circumscribe the broad constitutional grant of subject matter

jurisdiction to circuit courts."

     ¶83   At times, the majority opinion appears to recognize

that "never" in Mikrut does not mean "never ever."                   At other

times, the majority opinion repeatedly asserts that a circuit

court never lacks subject matter jurisdiction.


     31
       The legislature has interpreted Article VII, Section 8 of
the Wisconsin Constitution as permitting it to divest circuit
courts of jurisdiction. Wisconsin Stat. § 753.03 states: "The
circuit courts have power to hear and determine, within their
respective circuits, all civil and criminal actions and
proceedings unless exclusive jurisdiction is given to some other
court . . . ." See also Mueller v. Brunn, 105 Wis. 2d 171, 176,
313 N.W.2d 790 (1982) ("We recognize, however, that the
legislature has the authority to abolish heretofore recognized
common law actions (e.g., breach of promise suits) and may set
standards for exhaustion of administrative remedies or for
primary jurisdiction prior to the proper invocation of the court
system's subject matter jurisdiction.").

     See State v. Annala, 168 Wis. 2d 453, 462, 484 N.W.2d 138
(1992), (recognizing that "Article VII, sec. 8 of the Wisconsin
Constitution and sec. 753.03, Stats., vests within the circuit
court the power to hear and determine all civil and criminal
actions and proceedings unless exclusive jurisdiction is given
to some other court. . . . Section 48.12(1) Stats., expressly
provides that the juvenile [branch of the circuit] court shall
have exclusive jurisdiction" over certain actions . . . . "


                                      23
                                                                  No.   2015AP869.ssa

    ¶84     The majority opinion does not attempt to resolve this

inconsistency    or    interpret    Article        VII,     Section     8   of   the

Wisconsin Constitution and our case law.                  Instead, the majority

opinion     single-mindedly      and     steadfastly         repeats        Mikrut's

assertions that the legislature is foreclosed from enacting a

statute that would circumscribe the broad constitutional grant

of subject matter jurisdiction to the circuit courts and that "a

circuit court is never without subject matter jurisdiction."

    ¶85     Unfortunately, Mikrut rests on a defective foundation.

    ¶86     Mikrut    misconstrued both        Eberhardy      v. Circuit Court

for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981), and

Article VII, Section 8 without genuinely analyzing either.32                        I

shall    undertake    that   analysis,      beginning      with    Eberhardy,     and

recognizing    that    Eberhardy   in       turn   analyzes       and   rests    upon

Article VII, Section 8.

    ¶87     The issue in Eberhardy was whether a circuit court

could order sterilization of a woman who was not competent to

consent to sterilization.        Eberhardy made clear that legislative


    32
       Mikrut, 273 Wis. 2d at 86, cites Eberhardy v. Circuit
Court for Wood County, 102 Wis. 2d 539, 307 N.W.2d 881 (1981),
and Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790
(1982), for the proposition that a circuit court is never
without subject matter jurisdiction.    Mueller does not cite or
quote the Wisconsin Constitution.         Mueller merely cites
Eberhardy for the proposition that "no circuit court is without
subject matter jurisdiction to entertain actions of any nature
whatsoever." Mueller, 105 Wis. 2d at 176. Because Mueller adds
nothing to the discussion in Mikrut or Eberhardy, I address
Eberhardy, Mikrut, and the Wisconsin Constitution, not Mueller.

                                       24
                                                           No.   2015AP869.ssa

authority was not needed for a circuit court to decide the issue

presented.33     But Eberhardy also made clear that the legislature

can withdraw categories of cases from a circuit court's decision

making power, so long as that power is placed elsewhere in the

unified court system.

       ¶88    The Eberhardy court explained the effect of the pre-

1977    and   post-1977   constitutional     provisions   relating     to   the

subject matter jurisdiction of circuit courts as follows.

       ¶89    Both    before   and     after      the     1977       Wisconsin

constitutional       amendments,   Article     VII,   Section    2    mentions



       33
       The lack of legislation on this topic did not, however,
make the circuit courts unable to hear these cases, render
judgments, or issue orders.    Rather, the court reasoned that
sound   judicial policy   militated   against the   judiciary's
rendering a decision about the fundamental right to bear
children without input as to the state's public policy
interests. Eberhardy, 102 Wis. 2d at 576.

     The context of Eberhardy is important. In that case, both
the guardian ad litem and the legal guardian of the individual
supported sterilization.    Eberhardy, 102 Wis. 2d at 570.   The
court was uniquely ill-suited to decide the case; no party
informed the court "why sterilization might be improper."
Eberhardy, 102 Wis. 2d at 570.        Lest one think that the
Wisconsin Supreme Court (or circuit courts) would permanently be
the wrong forum to address these concerns, the court concluded
its opinion by stating, "[P]ursuant to our supervisory authority
we direct such jurisdiction shall not be exercised until the
state's policy to do so is set forth by appropriate legislation
or until further order of this court."    Eberhardy, 102 Wis. 2d
at 578-79 (emphasis added).

     Thus,   the  legislature  (through  inaction)  could  not
permanently prevent circuit courts from exercising their power
to hear actions on this topic.


                                     25
                                                                       No.    2015AP869.ssa

circuit       courts    and     authorizes         the   legislature     to     establish

inferior courts.

       ¶90     Before    the    1977    amendments,        Article   VII,      Section    8

stated:       "The circuit courts shall have original jurisdiction in

all matters civil and criminal within this state, not excepted

by     this     constitution,          and        not    hereafter     prohibited        by

law . . . ." (emphasis added).

       ¶91     The 1977 amendments to Article VII, Section 8 changed

the language "not hereafter prohibited by law" to read "[e]xcept

as otherwise provided by law . . . ."

       ¶92     In Eberhardy, the court declared that "[t]his change,

however, is not substantive."34

       ¶93     Thus, pre-1977 and post-1977 cases should be examined

in interpreting the present version of Article VII, Section 8 of

the Wisconsin Constitution.

       ¶94     The Eberhardy court explained that under both the pre-

1977    and    post-1977       versions       of    Article   VII,   Section      8,   the

legislature          could    divest        and    reallocate    jurisdiction          over

certain types of cases from the circuit courts to other courts.

The legislature could not, however, transfer jurisdiction to an

entity outside the unified court system.                        Why not?          Because

Article       VII,    Section    2     of    the    Wisconsin   Constitution        vests

judicial power in "a unified court system."

       34
            Eberhardy, 102 Wis. 2d at 550.

                                              26
                                                             No.    2015AP869.ssa

      ¶95   The    Eberhardy     court    explained    the   rule     that    the

legislature     could   constitutionally      transfer    jurisdiction       from

the   circuit     courts   to   other    courts   by   referring    to   a   1954

article authored by Attorney E. Harold Hallows (who later served

on the Wisconsin Supreme Court) and Attorney Jack DeWitt as

follows:


      It has previously been pointed out that this language
      ["[e]xcept as otherwise provided by law" in Article
      VII, Section 8] only allows for a legislative
      reallocation of jurisdiction from the circuit court to
      another court. It does not permit the legislature to
      divest the constitutional grant of jurisdiction from
      the unified court system; and under the unified system
      created   by   the   amendment   of   1977,   original
      jurisdiction is vested wholly in the circuit court.
      The legislative allocation of jurisdiction under the
      constitution as it existed prior to 1977 was discussed
      in [E. Harold] Hallows & [J.R.] DeWitt, The Need for
      Court Organization, 1954 Wis. L. Rev. 377 [sic], 387
      n.54. It was pointed out therein that the legislative
      authority to reallocate judicial power and to transfer
      it from one court to another could not abrogate the
      court system's powers.   Rather, as was said in State
      v. Wimberly, 55 Wis. 2d 437, 441, 198 N.W.2d 360
      (1972), quoting Callanan v. Judd, 23 Wis. 343 (1868),
      the language was designed:

      " . . . to enable the legislature to distribute the
      jurisdiction in both matters at law and in equity, as
      between the circuit courts and the other courts in the
      state. . . . "
Eberhardy, 102 Wis. 2d at 550-51.

      ¶96   Note 54 in the Hallows and DeWitt article explains

that the pre-1977 Article VII, Section 8, permitted jurisdiction

to be divested from circuit courts, as follows:

      Cases permitting jurisdiction to be divested from
      circuit court are Bookhout v. State, 66 Wis. 415, 28
      N.W. 179 (1886); Lannon v. Hackett, 49 Wis. 261, 5
                                         27
                                                                No.   2015AP869.ssa

      N.W. 474 (1880); Goyke v. State, 136 Wis. 557, 117
      N.W. 1027 (1908); State v. Krause, 260 Wis. 313, 50
      N.W.2d 439 (1951). See also Hicks v. Hardy, 241 Wis.
      11,   4  N.W.2d 150   (1942),   holding  that   probate
      jurisdiction is in county rather than circuit court.
E.   Harold      Hallows    &      J.R.    DeWitt,    The    Need     for       Court

Organization, 1954 Wis. L. Rev. 376, 387 n. 54.

      ¶97    Hicks v. Hardy, 241 Wis. 11, 4 N.W.2d 150 (1942), is

instructive      in    understanding       Article    VII,     Section      8     and

Eberhardy.       In Hicks, the plaintiff widow brought an action in

equity in the circuit court to vacate a county court judgment.

The Hicks court dismissed the circuit court action, holding that

only the county court in probate had such jurisdiction.

      ¶98    Other cases have also recognized that pre-1977 Article

VII, Section 8 of the Wisconsin Constitution "confers upon the

legislature power to restrict the original jurisdiction of the

circuit     courts."       State    v.    Krause,    260    Wis. 313,    320,      50

N.W.2d 439 (1951); see also Bookhout v. State, 66 Wis. 415, 418

(1886).

      ¶99    The case law, including Eberhardy, and the text of

Article VII, Section 8 of the Wisconsin Constitution clearly

demonstrate that (both before and after the 1977 constitutional

amendments) the legislature is not foreclosed from enacting a

statute divesting circuit courts of subject matter jurisdiction

so   long   as   the   jurisdiction       is   reallocated    to    other   courts

within the unified court system.               Thus, as a matter of law, a

circuit court may be without subject matter jurisdiction as a

result of legislative action.




                                          28
                                                                               No.    2015AP869.ssa


       ¶100 I    now    turn     from     the      majority         opinion's           misguided

refrain      (taken    from     Mikrut)     that        circuit       courts          never    lack

subject      matter     jurisdiction        to     address          the    confusing          cases

defining      and     differentiating         between         circuit       court        "subject

matter      jurisdiction"       and    circuit         court    "competency."                 These

cases are based on misunderstandings.

                                              B

       ¶101 As noted previously, allowing parties to raise subject

matter      jurisdiction       challenges         at    any    time       "posed       difficulty

chiefly because, if taken literally, it subverted the principle

of    finality."35        In    attempting         to    preserve         the        finality   of

judgments,      this    court    has    manufactured            a    doctrine,          allegedly

stemming from the state constitution, whereby circuit courts are

never without "subject matter jurisdiction" but may instead lack

"competency."

       ¶102 The     distinction        between         subject       matter          jurisdiction

and    competency,       apparently       first         described         in     Wisconsin      in

Mueller v. Brunn, 105 Wis. 2d 171, 313 N.W.2d 790 (1982), and
supposedly clarified by Mikrut,36 remains unclear and confusing

and has been applied inconsistently by the court of appeals.

       ¶103 As      recently     as    this       year,       the    Wisconsin          Court   of

Appeals      explicitly    noted      the     uncertainty           regarding          these    two

terms.       See DWD v. LIRC, 2016 WI App 21, ¶8, 367 Wis. 2d 609,

       35
            Restatement (Second) of Judgments § 12 cmt. b at 117.
       36
       See majority op., ¶¶11, 14, 19 (asserting that Mikrut
clarified the law of subject matter jurisdiction and circuit
court competency).


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877    N.W.2d 620      ("In   fairness       to    the    parties,      the     case    law

addressing competency and jurisdiction in Wisconsin is not a

beacon of clarity.").

       ¶104 In 2005, 13 years after Mueller was decided and just

one year after Mikrut, this court described the case law on

subject matter jurisdiction and competency as "murky at best."

Bush, 283 Wis. 2d 90, ¶16.

       ¶105 In     1991,      nine     years      after      Mueller,      this     court

acknowledged that the terms "subject matter jurisdiction" and

"competency" have been inconsistently used and defined by courts

and commentators across the country.                      See Green Cnty. DHS v.

H.N., 162 Wis. 2d 635, 656 n.17, 469 N.W.2d 845 (1991).

       ¶106 The instant case is a prime example of the confusion

that    the    "subject    matter     jurisdiction/competency"             terminology

has    wrought    on    Wisconsin's      jurisprudence.           We    might     expect

different       districts        of   the        Wisconsin     Court       of     Appeals

occasionally to reach inconsistent conclusions.                         Yet a decade

after Mikrut supposedly "clarified Wisconsin's jurisprudence,"37
the    court     of     appeals       reached      inconsistent         decisions        on

competency      and    subject    matter     jurisdiction       issues        similar    to




       37
            Majority op., ¶14.


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those presented in the instant case.38                This continued confusion

illustrates     Mikrut's      failure     to    actually       clarify       the    law

surrounding subject matter jurisdiction.

       ¶107 The confusion between subject matter jurisdiction and

competency is not surprising for several reasons.

       ¶108 First, unfortunately, Mueller defined "subject matter

jurisdiction"       and    "competency"      using    the    same    words.        This

language was bound to cause confusion.                 See Shopper Advertiser,

Inc.    v.   DOR,    117    Wis. 2d 223,       238,    344    N.W.2d 115       (1984)

(Abrahamson, J., concurring in part and dissenting in part).39

       ¶109 Second, Mueller referred to the Restatement (First) of

Judgments § 7 (1942) for the distinction between these terms.                         A

careful reading of section 7 and the comments in the Restatement


       38
       See majority op., ¶13 n.7.      As the majority opinion
explains in note 7, the court of appeals has reached
inconsistent results in several recently decided, unpublished
opinions addressing similar arguments to those raised in the
instant case.       Compare, e.g.,   State v. Navrestad,     No.
2014AP2273, unpublished slip op. (Wis. Ct. App. July 2, 2015)
(following Mikrut's competency-subject matter distinction) with
City of Stevens Point v. Lowery, No. 2014AP742, unpublished slip
op. (Wis. Ct. App. Feb. 5, 2015) (applying Rohner and holding
that the circuit court lacked subject matter jurisdiction) and
Clark Cnty. v. Potts, No. 2012AP2001, unpublished slip op. (Wis.
Ct. App. March 28, 2013) (same).
       39
       As I pointed out in 1984, the court's opinions do not
clarify the meaning of the terms "subject matter jurisdiction,"
"competency," and "venue"; the terms are used interchangeably in
the opinions; and it does not matter what terminology is used as
long as the court defines the terms, uses the terms in a
consistent fashion, and explains the consequences of the
classifications it establishes.     Shopper Advertiser, Inc. v.
DOR, 117 Wis. 2d 223, 236-38, 344 N.W.2d 115 (1984) (Abrahamson,
J., concurring in part and dissenting in part).


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shows that the Restatement (First) uses the terms subject matter

jurisdiction         and   competency      "more    or    less     interchangeably."

Shopper       Advertiser,       117     Wis. 2d     at     237     (Abrahamson,         J.,

concurring in part and dissenting in part) (quoting Richard H.

Field & Benjamin Kaplan, Civil Procedure 603 (2d ed. 1968)).

       ¶110 Furthermore,          Restatement           (Second)        of     Judgments,

Introductory Note at 28 (1982), explains that it uses the term

"subject matter jurisdiction," rather than "competency," "simply

because it [subject matter jurisdiction] is much more commonly

used     in     American      legal       parlance        than     'competence'          or

'competency.'"         The Restatement notes, however, that sometimes

the rules of subject matter jurisdiction are referred to as

rules of competency.          See comments to § 11 at 108-09.

       ¶111 Third, the Wisconsin statutes (and rules promulgated

by this court) generally refer to a circuit court's subject

matter    jurisdiction,       not      competency.        See,     e.g.,      Wis.    Stat.

§ 645.04(5), 801.04(1), 801.05, 801.07, 802.06(8)(c).

       ¶112 For      example,     Wis.    Stat.     § (Rule)       801.04(1)         defines
subject matter jurisdiction as "[t]he power of the court to hear

the kind of action brought. . . .                  Jurisdiction of the subject

matter is conferred by the constitution and statutes of this

state    and    by    statutes    of     the   United     States . . . ."            Section

(Rule)     802.06(8)(c)          provides        that    if      "the        court     lacks

jurisdiction of the subject matter, the court shall dismiss the

action."

       ¶113 The statutes also refer to competency.                             See, e.g.,
§§ 48.245(7);          48.25(2);       938.245(7)(a);         938.25(2)(a),            (b);

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938.315(3)        (refers         to        competency           and      subject        matter

jurisdiction); 980.038(1)(a) (refers to competency and subject

matter jurisdiction).             These statutes state that the failure to

object to noncompliance with the specified statutory time period

waives this challenge to the court's ability to proceed.

       ¶114 Fourth, over the years Wisconsin courts have used the

terms    "competency"        and       "subject       matter       jurisdiction"         "in   a

variety of ways."           Miller Brewing Co. v. LIRC, 173 Wis. 2d 700,

705 n.1, 495 N.W.2d 660, 661 (1993) (citing Green Cnty. DHS v.

H.N., 162 Wis. 2d 635, 656, 469 N.W.2d 845 (1991)).

       ¶115 The      case   law    in       the    more    than    30     years    that    have

elapsed since Mueller ushered in the distinction between subject

matter     jurisdiction            and            competency           demonstrates        that

clarification and development of the law is needed.                                  Although

this    court   is    supposed         to   clarify        and   develop     the    law,   the

majority opinion fails in that task.

       ¶116 For the reasons set forth, I dissent.                          I conclude that

the first-offense civil OWI judgment entered by the Eau Claire
circuit court against Booth Britton is void.                              Accordingly, the

judgment should be vacated under Wis. Stat. § 806.07(1)(d), and

the circuit court's decision should be affirmed.

       ¶117 I   am     authorized           to     state    that       Justice     ANN    WALSH

BRADLEY joins this opinion.




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