Charges of defying law, building ‘straw man’ written in split Supreme Court opinion

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A split Wisconsin Supreme Court has reversed a decision on a subject-matter-jurisdiction dispute relating to an OWI case from Ozaukee County.

The high court released its decision in City of Cedarburg v. Ries B. Hansen on Tuesday. In 2005, Hansen was arrested for an OWI in Cedarburg. He was charged with violating a city ordinance and convicted as a first-time offender even though he had in fact had a previous OWI conviction from 2003 in Florida. In 2016, he was charged with yet another OWI. After that arrest, the Florida OWI conviction came to light, and Hansen was found guilty of his third OWI offense.

Hansen argued the Cedarburg municipal court had erred when it failed to take into account his previous OWI in Florida and, for that reason, his conviction from 2005 should be vacated. He also noted that, without the 2005 conviction, more than 10 years would have passed since his last OWI conviction, meaning he should have been charged in 2016 as a first-time offender.

The circuit court agreed that the 2005 offense was outside the municipal court’s jurisdiction and vacated the conviction. A majority of justices on the state Supreme Court reversed that decision on Tuesday.

“Although Hansen’s silence gave him a lesser penalty in 2005, the progressive penalties set out in Wis. Stat. § 346.65 were honored when Hansen was charged in 2016 with OWI-third pursuant to § 343.307,” Chief Justice Pat Roggensack wrote. “Hansen’s silence in 2005 had an effect only on the municipal court’s competence in 2005.”

Roggensack and Justices Annette Ziegler, Dan Kelly and Rebecca Bradley also decided Hansen had forfeited any competence objection he might have made because he had waited 11 years to bring up the OWI conviction from Florida.

Justices Brian Hagedorn, Ann Walsh Bradley and Rebecca Dallet dissented. Hagedorn wrote that the majority’s rule granting subject-matter jurisdiction through a pleading isn’t supported by state or federal law.

“Nothing in the text of our constitution, nothing in the law of federal jurisdiction, and nothing in our prior cases suggest that invoking jurisdiction conclusively establishes jurisdiction,” Hagedorn wrote. “In reaching its conclusion today, the majority not only fails to apply our law, it blatantly defies it.”

Kelly called their argument a “deft, but pointless, reduction of a straw man to a fine powder.” He and Rebecca Bradley filed a concurring opinion in response to the dissent’s argument. Kelly said the dissent was acting as though the municipal court had heard a second-offense OWI case and then performed a jurisdictional analysis on that case, rather than the case it actually heard in 2005.

“Apropos of quite literally nothing, the dissent believes the municipal court wasn’t really hearing an OWI ordinance violation,” Kelly wrote. “Instead, contra the entirety of the record, the dissent assumes the municipal court was hearing a ‘second-offense OWI’ … Because of that mistaken assumption, the dissent was unable to keep the concept of subject matter jurisdiction distinct from a court’s competence.” Follow @WLJReporter