Competency Case Analysis

Listen to this article

Although none of the four opinions in these cases refers to Chief Justice Abrahamson’s concurrence in Village of Trempeleau v. Mikrut, 2004 WI 79, 273 Wis.2d 76, 681 N.W.2d 190, attorneys should be well aware of it, for it is fast becoming prophetic, in a rather ironic way.

The lead opinion in Mikrut held that the failure to challenge competency in the circuit court would constitute waiver of objections to competency, except for statutory time limits. The court explicitly declined to consider whether waiver would be invoked in those instances. It is noteworthy, however, that what little the court did say suggested that waiver should apply even to time limits, because, "these cases appear to simply perpetuate by rote the rule in older case law that statutory time limitations are ‘jurisdictional’ and therefore cannot be waived." Mikrut, at 193, n.1.

Abrahamson wrote separately in Mikrut to assert the opinion goes too far: "As I understand the opinion, it holds that except for statutory time limits, every statutory mandate for invoking a circuit court’s jurisdiction is waived if not first raised in the circuit court proceeding."

She added, "the majority opinion paints with too broad a brush. It substitutes a bright-line rule for the text of many statutes. Bright lines are good. I wonder, however, whether we should adopt a bright line for a multitude of differently worded statutes. I suggest it is too simplistic…"

In the cases at bar, the court was presented with late competency challenges based on statutory time limits, and the court adopted the opposite bright line rule. As predicted in the concurrence, problems due to statutory variations have immediately made application of the corollary bright line rule extremely difficult.

Substantial portions of the opinions in Michael S. are even devoted to arguing the definition of the term, "time limit," and whether it is the equivalent of a "time period" or a "time requirement."

For both of these cases, the legislature has enacted statutes that, at least arguably, provide that the objections to competency based on failure to comply with statutory time limits are waived if not timely made. Nevertheless, the majority found no waiver to have occurred.

Inexplicably, the court never even analyzes whether the rule in Mikrut should be extended to statutory time limits, but assumes it should not, based entirely on the fact that the Mikrut court declined to overrule cases such as In re B.J.N., 162 Wis.2d 635, 469 N.W.2d 845 (1991), which held that a competency challenge based on the court’s failure to act within a statutory time period cannot be waived, even though it is not raised in the circuit court.

Nevertheless, all the reasons given by the court in Mikrut for finding waiver still apply, even when time limits are concerned: "Requiring challenges to the circuit court’s competency to be raised in the circuit court encourages diligent investigation and preparation of cases. It also gives the circuit court and both parties a fair opportunity to address any objections to the court’s competency to proceed and may diminish appeals on competency issues." Mikrut, 681 N.W.2d at 200.

Perhaps, most importantly, "the rule prevents attorneys from ‘sandbagging’ errors, or failing to object to an error for strategic reasons and later claiming that the error is ground for reversal." Id., at 197.

In future cases, an attorney representing a juvenile in Michael S.’s position, fully aware that the court is about to carelessly let supervision expire, can ensure that result by keeping his mouth shut. If he raises the issue, he is likely condemning his client to more detention and supervision.

And, as noted above, what little dicta the court in Mikrut provided on the issue suggested that statutory time limits can be waived, too, because the only justification for not allowing waiver to apply is old case law "perpetuated by rote."

Meanwhile, in the court of appeals, waiver is not being ruthlessly invoked where the competency challenge is based on reasons other than time limits. Bank One, NA, v. Ofojebe, 2005 WL 1283480 (No. 2004AP902, June 1, 2005)(recommended for publication).

In that case, Ofojebe executed a 10-year line of credit on her home equity. She stopped making payments and Bank One sought foreclosure. Ofojebe did not dispute the balance owed, and the trial court granted summary judgment for Bank One.

On appeal, Ofojebe argued, for the first time, that judgment was improper because Bank One failed to comply with sec. 425.109(1)(d), which requires that the initial complaint include all figures necessary for computation of the amount due.

	Related Links Wisconsin Court System Related Article Competency objections to time limits not waived

Although the rule adopted in Mikrut plainly required a finding of waiver in the case, the court of appeals disagreed, citing statutes that the Wisconsin Consumer Act is to be liberally applied to protect consumers.

The court in Ofojebe also cited Ibrahim v. Samore, 118 Wis.2d 720, 726, 348 N.W.2d 554 (1984), for the proposition that a competency objection is not waived by a failure to plead it as an affirmative defense. However, Ibrahim is plainly inapplicable, as the court in Mikrut explicitly distinguished between failures to timely plead an affirmative defe
nse (not waiver), and failures to raise an issue at all until appeal (waiver). Mikrut, 681 N.W.2d, at 200.

Thus, Abrahamson was indeed prophetic when she predicted that applying bright line waiver rules would be complicated by "a multitude of differently worded statutes."

Ironically, however, courts are not avoiding those complications by "Just say[ing] ‘waiver,’" as she also predicted. Instead, they are "just saying ‘no waiver,’" even when Mikrut plainly applies, and even when individual statutes provide that a failure to object to competency will result in waiver.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.