Waiver Case Analysis

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The decision in this case either expressly overrules, or severely limits, a number of court decisions concerning waiver of objections to a court’s competency.

However, attorneys need to be on notice that a host of other decisions, not mentioned by the court, may also be effectively overruled.

Chief Justice Abrahamson notes that the decision “requires overturning or casting great doubt on numerous prior opinions (many not cited).”

And the lead opinion acknowledges that many such cases exist in a footnote, stating, “We identify some of these areas of inconsistency but do not undertake to resolve all of them here.”

The majority opinion gives some guidance to which cases may be affected, however, stating, “In particular, we note that there is an established line of cases holding, in conclusory fashion, that competency challenges premised upon noncompliance with mandatory statutory time limitations cannot be waived. See, pars. 12-13, 25, infra.

Because the competency challenge in this case is not premised upon noncompliance with statutory time limitations, we do not address the issue of waiver in this context except to note that 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. See par. 25 n.6, infra. We also note the recent enactment of legislation that may call into question this line of cases, at least in certain subject areas. See, par. 12 n. 4.”

Thus, while the decision does not definitively reject the line of cases holding that statutory time limits are jurisdictional, the decision at least suggests those decisions are incorrect, by dismissing their reasoning as “simply perpetuat[ing] by rote the rule in older case law.”

An interesting question may arise in cases where there has been no explicit indication from the legislature that a statutory time limit is not jurisdictional. In footnote 4, the court cites examples where the legislature has explicitly stated so.

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Statutes lacking such a statement could be interpreted in two ways: the legislature deliberately intends that objections to competency can be waived for those statutes; or the legislature intends that they can’t be waived, but just hasn’t gotten around to cleaning up all the statutes yet.

Another issue the court leaves undecided is the governmental notice of claim statutes, secs. 893.80(1) and 893.82(3). The current law is that a municipality does not waive a competency challenge, even though it did not assert the failure to file a notice of claim as an affirmative defense. Ibrahim v. Samore, 118 Wis.2d 720, 348 N.W.2d 554 (1984).

Arguably, however, the objection could be waived if not raised until the appeal — a distinction that would be consistent with the one drawn in the case at bar between Wall v. DOR, 157 Wis.2d 1, 458 N.W.2d 814 (Ct.App.1990), and In the Interest of G.L.K., 153 Wis.2d 245, 450 N.W.2d 498 (Ct.App.1989).

As such, there are still a variety of issues to be resolved, despite the holding in this case, clearing up one area of the law. Nevertheless, the decision should be read as establishing at least a rebuttable presumption that the common law rule of waiver applies to all competency questions: issues not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal. State v. Huebner, 2000 WI 59, par. 10, 235 Wis.2d 486, 611 N.W.2d 727.

– David Ziemer

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David Ziemer can be reached by email.