COURT OF APPEALS

DECISION

DATED AND FILED

 

July 2, 2015

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

2014AP2273

Cir. Ct. No.  2014CV96

STATE OF WISCONSIN 

IN COURT OF APPEALS

 

DISTRICT IV

 

 

 

 

State of Wisconsin,

 

                      Plaintiff-Respondent,

 

         v.

 

John N. Navrestad,

 

                      Defendant-Appellant.

 

 

 

 

            APPEAL from an order of the circuit court for Monroe County:  j. david rice, Judge.  Affirmed. 

1        LUNDSTEN, J.[1]   John Navrestad appeals a final circuit court order denying his motion to “void” and “vacate” his 1992 conviction for a first offense of operating a motor vehicle while under the influence in violation of a local ordinance.  I affirm.

2        As I understand it, Navrestad’s argument consists of the following four assertions, which incorporate the necessary background facts: 

            (1)       Under County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982), when a defendant has a countable prior intoxicated driving offense, a state statute directs that a subsequent offense be charged as a crime; if the subsequent offense is incorrectly charged as a first offense ordinance violation, the circuit court lacks “subject matter jurisdiction.”

            (2)       At the time of his 1992 prosecution, Navrestad had a countable prior offense, but was charged with and convicted of a first offense ordinance violation.

            (3)       The circuit court thus lacked subject matter jurisdiction under Rohner, and, as a result, the 1992 conviction was void.

            (4)       Although Navrestad did not object on subject matter jurisdiction grounds during the 1992 prosecution, Navrestad may move now to void and vacate the 1992 conviction on those grounds because objections to subject matter jurisdiction cannot be forfeited or waived.  

3        Navrestad correctly points to two unpublished decisions in which a court of appeals judge agreed with the Rohner-based argument that Navrestad makes here.  See City of Stevens Point v. Lowery, No. 2014AP742, unpublished slip op. ¶¶1, 7-9, 13-14 (WI App Feb. 5, 2015); Clark County v. Potts, No. 2012AP2001, unpublished slip op. ¶¶1, 6-9, 14 (WI App March 28, 2013).[2]   

4        Courts are not bound by unpublished decisions, see Wis. Stat. Rule 809.23(3)(b), and here, like the circuit court, I do not follow Lowery and Potts.  Rather, for the reasons I now explain, I agree with the State and with the circuit court’s persuasive analysis that Navrestad’s argument is defeated by Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, a supreme court case that came after Rohner.  

5        In Rohner, a defendant who had a countable prior intoxicated driving offense was charged with a first offense ordinance violation.  Rohner, 108 Wis. 2d at 715-16.  Rohner argued that the circuit court lacked subject matter jurisdiction in this circumstance.  Id. at 715.  The supreme court in Rohner agreed.  Id. at 722.  The supreme court reasoned that statutes give the State exclusive authority over second offense intoxicated driving crimes, and, therefore, the circuit court was without subject matter jurisdiction to try the defendant’s case brought under a local ordinance.  See id. at 716, 718, 722.  The Rohner court held that, “[b]ecause the complaint is to be dismissed for want of subject-matter-jurisdiction, there could not have been a valid proceeding.”  Id. at 722. 

6        Putting aside that Rohner addresses a timely objection situation, Rohner does seem to support Navrestad’s argument.  Specifically, Rohner supports Navrestad’s assertion that, when a defendant has a countable prior intoxicated driving offense and a subsequent offense is charged as a first offense ordinance violation, the circuit court lacks subject matter jurisdiction over the first offense charge.  Indeed, that is how the unpublished Lowery and Potts decisions read Rohner.  See Lowery, No. 2014AP742, ¶¶7-9; Potts, No. 2012AP2001, ¶¶8-9.

7        This brings me to Mikrut.  Although Mikrut had nothing to do with intoxicated driving offenses, the supreme court in Mikrut made a pronouncement that “a circuit court is never without subject matter jurisdiction.”  Mikrut, 273 Wis. 2d 76, ¶1 (emphasis added).  The Mikrut court concluded that, although a court’s “competency,” or power to exercise jurisdiction, can be limited by statute, subject matter jurisdiction cannot.  Id., ¶2.  The Mikrut court further concluded that objections to competency can be forfeited.  See id., ¶3 & n.1. 

8        It is true that Mikrut’s discussion of subject matter jurisdiction did not expressly overrule or even cite Rohner.  However, as the circuit court here recognized, Mikrut’s pronouncement that a circuit court is “never without subject matter jurisdiction” is categorical and conflicts with the part of Rohner that matters here.  Given this conflict, I am bound to follow the more recent supreme court pronouncement in Mikrut and conclude that Navrestad’s 1992 conviction presents no problem of subject matter jurisdiction.  See Spacesaver Corp. v. DOR, 140 Wis. 2d 498, 502, 410 N.W.2d 646 (Ct. App. 1987) (“When the decisions of our supreme court appear to be inconsistent, we follow its most recent pronouncement.”).

9        Navrestad points out that there is a supreme court decision after Mikrut, State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, that, according to Navrestad, modifies Mikrut or calls Mikrut into question.  In Bush, the supreme court stated that a facial constitutional challenge to a statute “is a matter of subject matter jurisdiction and cannot be waived.”  See Bush, 283 Wis. 2d 90, ¶17. 

10      However, I agree with the circuit court that Navrestad reads too much into Bush.  Bush is most reasonably read as carving out or reviving an exception to Mikrut in the context of facial constitutional challenges, not as a broader overruling of Mikrut.  See Bush, 283 Wis. 2d 90, ¶¶14-19.  The court in Bush seemed to take a pass on that broader topic.  The court in Bush acknowledged Mikrut’s categorical approach but concluded that the court’s jurisprudence in the specific area of facial constitutional challenges had been resolved otherwise.  See Bush, 283 Wis. 2d 90, ¶¶14-17.  It is true that the Bush court also said the following:  “If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.”  Id., ¶18.  But, as the circuit court correctly observed, a first offense intoxicated driving ordinance violation is an offense known to law.  For that matter, in my view there can be no doubt that circuit courts generally have subject matter jurisdiction over all intoxicated driving offenses.  Thus, I fail to see how Bush supports Navrestad’s argument. 

11      I acknowledge that my analysis directly contradicts the analysis in the unpublished Lowery decision.  In Lowery, the court concluded that Mikrut did not modify Rohner “in any way” and that Rohner remains good law.  See Lowery, No. 2014AP742, ¶11.  However, I agree with the circuit court that the more reasonable reading of the Mikrut decision is that Mikrut’s holding supersedes the Rohner court’s conclusion that subject matter jurisdiction is implicated in a circumstance like Navrestad’s. 

12      My analysis contradicts the Lowery decision in another way.  In Lowery, the court appeared to distinguish Mikrut as involving an action that was valid when commenced, with the circuit court in Mikrut losing competency based on the failure to comply with a statutory requirement during the course of validly commenced proceedings.  See Lowery, No. 2014AP742, ¶12.  The Lowery decision contrasted this valid-when-commenced scenario with a “charge of first offense OWI [that] was never valid under Rohner, and thus … never validly before the circuit court in the first instance.”  Id.  I fail to see how this distinction matters given Mikrut’s categorical approach.  The distinction that Lowery draws may suggest that Mikrut’s categorical pronouncement went beyond what was necessary.  Nonetheless, I am bound by it.  See Zarder v. Humana Ins. Co., 2010 WI 35, ¶58, 324 Wis. 2d 325, 782 N.W.2d 682 (“[T]he court of appeals may not dismiss a statement from an opinion by [the supreme] court by concluding that it is dictum.”).[3] 

13      Accordingly, Navrestad’s argument fails because one of his underlying assertions fails, namely, the assertion that the circuit court lacked subject matter jurisdiction in his 1992 prosecution and conviction.  Once that assertion is taken away, Navrestad presents no other complete argument as to why he should not be deemed to have forfeited his objection to his 1992 conviction.  In addition, Navrestad fails to refute the circuit court’s persuasive explanation of why the policies behind the forfeiture rule apply here.  I therefore agree with the circuit court that Navrestad’s objection is forfeited.

14      In sum, for the reasons stated, I affirm the circuit court’s order denying Navrestad’s motion to vacate his 1992 conviction as void for lack of subject matter jurisdiction. 

            By the Court.—Order affirmed.

            This opinion will not be published.  Wis. Stat. Rule 809.23(1)(b)4.

 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c).  All references to the Wisconsin Statutes are to the 2013-14 version.

[2]  There are at least two additional unpublished decisions reaching the same result as City of Stevens Point v. Lowery, No. 2014AP742, unpublished slip op. (WI App Feb. 5, 2015), and Clark County v. Potts, No. 2012AP2001, unpublished slip op. (WI App March 28, 2013).   See La Crosse Cnty. v. Pettis, No. 2008AP2075, unpublished slip op. ¶¶1, 5-8, 11 (WI App April 9, 2009); County of Pierce v. Shulka, No. 2006AP1294, unpublished slip op. ¶¶1, 6-9 (WI App Oct. 24, 2006).  However, those additional decisions may not be cited for persuasive value because they were issued before July 1, 2009.  See Wis. Stat. Rule 809.23(3)(a) and (b).  Because Navrestad’s counsel cites Pettis as well as Lowery and Potts, I take this opportunity to remind counsel of the rule.

[3]  On June 12, 2015, the supreme court denied a petition for review in Lowery.  See Lowery, No. 2014AP742, review denied (WI June 12, 2015).  Navrestad’s case was placed on hold pending supreme court action on the petition.  The sole argument in the Lowery petition is essentially the argument based on Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, that I adopt here.  See Petition for Review, at 2-5, in Lowery.  Apparently, the supreme court did not see this argument as a persuasive reason to accept review of Lowery.  But the supreme court’s denial of review is not a ruling on the merits and therefore does not change the binding nature of Mikrut.  See W.W.W. v. M.C.S., 156 Wis. 2d 446, 458, 456 N.W.2d 899 (Ct. App. 1990) (“A supreme court denial of a petition for review … carr[ies] no implication of approval or agreement.”), aff’d, 161 Wis. 2d 1015, 468 N.W.2d 719 (1991); see also Southern Cross, Inc. v. John, 193 Wis. 2d 644, 648, 533 N.W.2d 188 (1995) (“The parties are cautioned … to infer nothing from the denial of this petition for review about this court’s view on the merits of this issue.”); State v. Nye, 105 Wis. 2d 63, 65, 312 N.W.2d 826 (1981) (United States Supreme Court’s denial of writ of certiorari contains no implication of approval of lower court decision).