Competency objections must be raised in trial

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“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.” Hon. Diane S. Sykes Wisconsin Supreme Court

A challenge to the circuit court’s competency is waived if not first raised in the original circuit court action, the Wisconsin Supreme Court held on June 16.

However, a reviewing court has inherent authority to disregard a waiver and address the merits of an unpreserved argument, secs. 751.06 and 752.35 may allow discretionary review in extraordinary circumstances, and sec. 806.07(1) may provide an avenue for collateral relief if adequate grounds for relief can be established and the statute’s time limitations have been met.

Mike R. Mikrut owns and operates a salvage yard in the Village of Trempealeau. In 2000, he was issued a total of 21 citations for violations of three Village ordinances: seven citations for the storage of junked vehicles on private property; seven citations for failing to obtain a conditional use permit for the operation of a junk and salvage yard in an industrial district; and seven uniform traffic citations for the illegal storage of junked vehicles.

On June 14, 2001, Trempealeau County Circuit Court Judge John A. Damon found Mikrut guilty of all the violations. The court ultimately imposed forfeitures totaling $104,193 in a written order signed Dec. 3, 2001, nunc pro tunc to Nov. 15, 2001.

Mikrut moved for reconsideration, but the motion was denied. He appealed, asserting numerous errors, but the court of appeals rejected all Mikrut’s claims in an unpublished decision affirming the judgment. The Supreme Court denied his petition for review.

On Nov. 25, 2002, more than 17 months after being found guilty of the ordinance violations and more than six months after the judgment was upheld on appeal, Mikrut moved to vacate the judgment, arguing for the first time that the Village did not follow certain statutory mandates in issuing some of the citations.

Mikrut claimed that these defects in the issuance of the citations rendered the circuit court incompetent to exercise its subject matter jurisdiction, and that the judgments were accordingly void. Judge Damon denied the motion, concluding that Mikrut had waived the issue of the court’s competency by failing to raise it at trial or on direct appeal.

Mikrut appealed, but the court of appeals affirmed in another unpublished decision. This time, the Supreme Court granted review, but also affirmed, in a decision by Justice Diane S. Sykes.

Chief Justice Shirley S. Abrahamson wrote a concurring opinion, joined by Justice Ann Walsh Bradley, and Justice Jon P. Wilcox did not participate.

Inconsistency

The court acknowledged significant inconsistencies in Wisconsin case law on the question of whether a challenge to the circuit court’s competency is subject to the common-law rule of waiver.

In Mueller v. Brunn, 105 Wis.2d 171, 178, 313 N.W.2d 790 (1982), the Supreme Court held, “[i]f a court truly lacks only competency, its judgment is invalid only if the invalidity of the judgment is raised on direct appeal.”

Discussing Mueller, the court noted, “This appears to state a modified waiver rule, in which a competency challenge may be raised for the first time on direct appeal but will be deemed waived if not raised on direct appeal, that is, if raised for the first time in a collateral challenge.”

However, in In the Interest of G.L.K., 153 Wis. 2d 245, 248, 450 N.W.2d 498 (Ct. App. 1989), the court of appeals applied the standard accepted common-law waiver rule, and held that a challenge to the circuit court’s competency is waived if not raised in the circuit court, declining to consider a competency argument raised for the first time on appeal.

In Wall v. Wisconsin DOR, 157 Wis. 2d 1, 7, 458 N.W.2d 814 (Ct. App. 1990), the court of appeals held that competency must be raised in an initial pleading or be waived. The court in Wall held that the objection had been waived because the department had “submitted to the circuit court’s jurisdiction by filing a ‘Notice of Appearance’” and “did not allege in it any jurisdictional objections, but first raised the issue four months later in a motion to dismiss.”

At the other end of the spectrum from Wall is In re Nadia S., 219 Wis. 2d 296, 581 N.W.2d 182 (1998), a CHIPs case in which the Supreme Court held that the circuit court lost competency when the order placing the child outside the home expired during the pendency of the appeal.

The court held, “like issues of subject matter jurisdiction, a court’s loss of competence to adjudicate a matter cannot be waived by the parties.” Id. at 303.

Finally, in In the Interest of B.J.N., 162 Wis.2d 635, 469 N.W.2d 845 (1991), the Supreme Court concluded that a certain type of competency challenge cannot be waived — loss of competency based upon noncompliance with mandatory statutory time periods.

Summarizing the various rules, the court found, “the cases regarding the waiver rule as applied to competency challenges have variously held as follows: 1) competency challenges cannot be waived at all (Nadia S.); 2) competency challenges cannot be waived if the alleged lack of competency relates to noncompliance with mandatory statutory time limitations, but no clear rule exists in other situations (B.J.N.); 3) competency challenges may be raised for the first time on direct appeal but are waived if not raised on direct appeal, that is, if raised for the first time on collateral challenge (Mueller); 4) competency challenges are waived for purposes of appeal if not first raised in the circuit court (G.L.K.); and 5) competency challenges are waived if not raised in the initial pleading (Wall). This conflicting body of case law cannot be reconciled.”

Resolution

Analyzing the various rules, the court concluded, “the following principles are sound and should be maintained: the common-law waiver rule applies to challenges to the circuit court’s competency, such that a challenge to the court’s competency will be deemed waived if not raised in the circuit court, subject to the inherent authority of the reviewing court to disregard the waiver and address the merits of the unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35.”

The court reasoned, “Because competency does not equate with subject matter jurisdiction, we see no reason not to apply the rule of waiver to these challenges as a general matter. A judgment rendered where competency is lacking is not void for lack of subject matter jurisdiction. Accordingly, a categorical rule that competency objections can never be waived is not justified. We withdraw the overbroad language in Nadia S. that attributed such a categorical rule of nonwaiver to the decision in B.J.N.”

The court also found the approach in Wall unjustified, reasoning, “The failure to raise an objection to competency in a notice of appearance does not waive the right to bring such an objection in the circuit court action. We overrule Wall to the extent that it purported to establish such a restrictive pleading waiver rule.”

Finally, noting that Mueller and G.L.K. conflict to the extent that Mueller allows competency to be raised for the first time on direct appeal (but not collaterally) and G.L.K. does not allow unpreserved competency challenges to be raised for the first time on appeal as of right, the court concluded that G.L.K. states the better rule.

The court explained, “The purposes underlying the waiver rule are well-served by applying it in this context. 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.”

Application

Applying the rule, the court concluded that Mikrut waived his challenge to the circuit court’s competency, by failing to raise the alleged defects in the circuit court, either before or at trial, or after judgment, but not until six months after the judgment was upheld on appeal.

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The court also concluded that sec. 806.07(1)(d) did not afford Mikrut any avenue of relief.

Mikrut relied on Tridle v. Horn, 2002 WI App 215, 257 Wis. 2d 529, 652 N.W.2d 418, in which the court of appeals held a judgment void for lack of subject matter jurisdiction, although the motion to vacate was not made until three years after judgment.

Discussing Tridle, the court stated, “The court in Tridle was partly right. The ‘reasonable time’ limitation in Wis. Stat. sec. 806.07(2) does not apply to motions to vacate void judgments under Wis. Stat. sec. 806.07(1)(d). Neylan v. Vorwald, 124 Wis. 2d 85, 100, 368 N.W.2d 648 (1985). However, as we have noted, a lack of competency does not negate subject matter jurisdiction or nullify the judgment. Mueller, 105 Wis. 2d at 177-78. Lack of competency is not ‘jurisdictional’ and does not result in a void judgment. Id. Accordingly, it is not true that a motion for relief from judgment under Wis. Stat. sec. 806.07 on grounds of lack of circuit court competency may be made at any time. We overrule Tridle to the extent that it held that a loss of competency voids the judgment and thereby authorized lack of competency to be raised by motion under Wis. Stat. sec. 806.07(1)(d) at any time.”

The court added that, if a judgment is rendered by a circuit court lacking competency and the competency challenge has been waived, sec. 806.07(1)(h) allows relief from judgment for “any other reasons justifying relief.”

The court declined to address whether it would be appropriate in the case at bar, however, because Mikrut did not seek relief pursuant to that rule. Accordingly, the court affirmed.

The Concurrence

Chief Justice Abrahamson wrote separately, asserting that the majority opinion “goes too far.”

Abrahamson wrote, “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 for the majority opinion to conclude that all the prior cases are inconsistent without even examining these cases carefully.”

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David Ziemer can be reached by email.