(Updated 10/28/09)

See also Defenses

Competency of Trial Court – Remedial Contempt, Commitment Order Based on Ex Parte Motion of (Non-attorney) Child Support Case Specialist
Clay Teasdale v. Marinette County Child Support Agency, 2009 WI App 152
Issue/Holding: Case specialist’s request to judge via affidavit and proposed order for remedial-contempt commitment was in fact if not form a “motion” and “was improper on numerous grounds”: it violated the §802.05(1) requirement that aside from pro se litigation motions must be signed by an attorney else must “be stricken”; it wasn’t filed with the clerk of circuit court, contrary to § 801.16(1); it violated the proscription against ex parte communications; and, it failed to afford the 5-days’ minimum notice required by § 801.15(4).
Minor point, perhaps: the court notes Teasdale’s argument that, because the request was signed by a nonattorney, the trial court lacked competency to issue the order, ¶1, but the court never quite gets around to saying whether or not it agrees. The court, to be sure, clearly says “the child support agency’s request for a commitment order should have been stricken from the record,” id., but whether that outcome equates to a lack of competency is left to the reader’s determination. The court is clear, though, about the necessity of notice:
¶11      Further, motions “shall” be heard on a minimum of five days’ notice. Wis. Stat. § 801.15(4). Yet, here the agency’s request for a commitment order was granted the day after its submission. A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions. V.J.H., 163 Wis.  2d at 838, 842-44 (“When a contemnor’s liberty interests are at risk he or she must be given the opportunity to show the court that the failure to comply with the purge condition was not willful and intentional.”). Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued. [7] In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned. [8]
Competence of Juvenile Court to Hear Reverse Waiver, § 970.032(2)
State v. Corey Kleser, 2009 WI App 43, PFR granted
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
¶55      Under Milwaukee County Circuit Court Chief Judge Directive 96-18 Amended, signed by Chief Judge Patrick T. Sheedy on June 28, 1996, a juvenile who was charged with an original jurisdiction case was to be detained at the Children’s Court Center [9] and the initial appearance, preliminary hearing and subsequent trial (if reverse waived) were to be conducted by a circuit court judge assigned to the Children’s Division. The case was assigned to Judge Triggiano, a circuit court judge assigned to the Children’s Division. This order was within the Chief Judge’s powers under SCR 70.19(3)(a), 70.20 and 70.21(4)(12) (2008). Accordingly, the juvenile court here was competent to hear the preliminary hearing waiver and reverse waiver hearing.
Competency of TPR Court – Statutory Time Limits, Generally
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue/Holding:1: Generally, compliance with a statutory TPR time limit is mandatory, such that non-compliance results in lost circuit court competency absent an applicable exception, ¶5, citing Dane Co. DHS v. Susan P.S., 2006 WI App 100, ¶63.
Issue/Holding2: The following is a non-exhaustive list of examples of lost judicial competency for lapse of a time limit without obtaining a proper extension under § 48.315, ¶9:
  •         The 30-day time limit for holding an initial hearing. Wis. Stat. § 48.422(1); Brown County v. Shannon R., 2005 WI 160 ¶¶2, 74, 81-82, 286 Wis. 2d 278, 706 N.W.2d 269; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7-10.
  •         The 45-day time limit for holding a fact-finding hearing. Wis. Stat. § 48.422(2); State v. Robert K., 2005 WI 152, ¶¶2, 16-17, 286 Wis. 2d 143, 706 N.W.2d 257; Matthew S., 282 Wis. 2d 150, ¶¶1-2, 13-18.
  •         The 45-day time limit for holding a dispositional hearing. Wis. Stat. § 48.424(4); State v. Quinsanna D., 2002 WI App 318, ¶¶2, 34-37, 259 Wis. 2d 429, 655 N.W.2d 752; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7, 11-12.
Competency of TPR Court – Statutory Time Limits – Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue Whether failure to enter the written TPR dispositional order within the 10-day time limit of § 48.427(1) causes the circuit court to lose competency over the case.
Holding:: A circuit court loses competency to proceed in a TPR when it fails to comply with a time limit between critical adjudication stages, ¶8, but entry of the written order was not such a “critical stage”:
¶11      … We conclude, however, that the circuit court here did not lose competency because it fully adjudicated the TPR proceeding and made all the decisions it was required to make in its oral decision and order prior to expiration of the 10-day time limit.

¶12      After hearing evidence at a dispositional hearing, a circuit court must make a number of decisions. The decisions that must be made depend on the circumstances and are set forth in several statutes. …

¶13      … Here, in light of both the court’s decision to terminate Dyanne’s parental rights and Artavia’s custody and adoption needs, three rulings were required … The circuit court’s oral decision contains all three rulings. …

¶14      Having made these rulings, there was nothing left for the circuit court to adjudicate. It follows that the “critical stages within the adjudication process” concluded when the court rendered its oral decision. Moreover, because the 10-day time limit in Wis. Stat. § 48.427(1) had not passed when the circuit court ruled orally, any subsequent failure to comply with that time limit did not deprive the circuit court of competency. The net effect of our holding is that, as long as the required rulings are made within the 10-day time limit, even if they are oral, the court does not lose competency.

Competency of Court – Time Limit Violation, § 961.555(2)(b)
State v. Lamont D. Powell, 2007 WI App 127
For Powell: Nicholas C. Zales
¶3        The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for an indefinite time” without a prompt judicial assessment of whether forfeiture is justified. See State v. Baye, 191 Wis. 2d 334, 339–340, 528 N.W.2d 81, 83 (Ct. App. 1995); see also style="FONT-WEIGHT: bold">State v. Rosen, 72 Wis. 2d 200, 204, 206–208, 240 N.W.2d 168, 170, 171–172 (1976) (applying a predecessor provision identical, as material, to § 961.555(2)(b)). Although it is true, as the State points out, that the statute does not indicate whether a dismissal for non-compliance with § 961.555(2)(b) should be with prejudice or without prejudice, if the State could, as it tried here, avoid the statute’s sixty-day command by the simple expedient of filing a new forfeiture petition based on the same facts, the sixty-day limitation would be meaningless. style="See Kindcare, Inc. v. Judith G., 2002 WI App 36, ¶3, 250 Wis. 2d 817, 821, 640 N.W.2d 839, 841 (protective placement) (“We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew.”). Accordingly, once the sixty-day period mandated by § 961.555(2)(b) has expired, the circuit court loses competency, and the State may not start the clock running anew by filing another forfeiture petition based on the same facts. Thus, the new action is a nullity, and the circuit court’s order of dismissal is modified to be a dismissal with prejudice. [5]
 [5] The State argues that because the circuit court lost competency once the sixty days mandated by Wis. Stat. § 961.555(2)(b) expired, it had no competency to do anything further in the case, and that this permitted the State to file its forfeiture petition again. We disagree. An appeal from the circuit court cannot be taken without a writing reifying the circuit court’s action. See Wis. Stat. § 808.03(1). Thus, Brandt v. Labor & Industry Review Commission, 166 Wis.  2d 623, 627, 480 N.W.2d 494, 496 (1992), recognized that dismissal is appropriate where a circuit court lacks competency to adjudicate the matter before it.
Validity of Order, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
¶43      As a general rule, a judgment or order is valid——i.e., not void——when the following elements are present: (1) the court has subject matter jurisdiction; [5] (2) the court has personal jurisdiction; [6] and (3) adequate notice has been afforded the affected persons. [7] See Restatement (Second) of Judgments § 1 (1982) (setting forth the requisites for a valid judgment).

¶44      Article VII, Section 8 of the Wisconsin Constitution provides that "[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state." This provision recognizes very broad subject matter jurisdiction in circuit courts. Nonetheless, the validity of judgments in these courts is complicated by our concept of "competency," which refers to "the power of a court to exercise its subject matter jurisdiction in a particular case." See State v. Smith, 2005 WI 104, ¶18, 283 Wis.  2d 57, 699 N.W.2d 508; Kohler Co. v. Wixen, 204 Wis.  2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996). In Mueller v. Brunn, 105 Wis.  2d 171, 178, 313 N.W.2d 790 (1982), the court stated that "[i]f a court truly lacks only competency, its judgment is invalid only if the invalidity of the judgment is raised on direct appeal." Mueller, 105 Wis.  2d at 178. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis.  2d 76, 681 N.W.2d 190, went well beyond Mueller, stating that "a lack of competency does not negate subject matter jurisdiction or nullify the judgment. Lack of competency is not 'jurisdictional' and does not result in a void judgment." Mikrut, 273 Wis.  2d 76, ¶34 (citation omitted).

A judgment based on a facially unconstitutional statute is void, as is a criminal complaint that fails to allege an offense known to law, ¶45.
Generally -- Subject-Matter / Personal Jurisdiction and Court Competency, Compared
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
¶18      To briefly review, subject matter jurisdiction refers to the power of a court to decide certain types of actions. United States v. Morton, 467 U.S. 822, 828 (1984); Kohler Co. v. Wixen, 204 Wis.  2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996); 21 C.J.S. Courts § 10 (1990) ("Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong."). Personal jurisdiction, on the other hand, refers to a court's power "to enter a judgment in personam against an individual party." Kohler, 204 Wis. 2d at 336; accord 21 C.J.S. Courts § 11 ("Jurisdiction of the person is the power of a court to bring before it the person to be affected by the judgment . . . and to render a judgment binding on such person."). However, a court's "competency," as the term is understood in Wisconsin, is not jurisdictional at all, but instead, is defined as "the power of a court to exercise its subject matter jurisdiction" in a particular case. Kohler, 204 Wis.  2d at 337. For example, we have explained that a court may lose its "competency" to adjudicate a particular case if it fails to comply with a variety of statutory procedures, including certain time limitations. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶12-13, 273 Wis.  2d 76, 681 N.W.2d 190.
Juvenile Delinquency Waiver-Petition – Delay
State v. Henry W. Aufderhaar, 2005 WI 108, reversing 2004 WI App 208
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding: Delay of 502 days between filings of delinquency and waiver petitions not a violation of due process, given absence of evidence of intent by State to delay proceeding in order to avoid juvenile court jurisdiction, ¶11.
Juvenile Delinquency Petition – Service of Process Requirements
State v. Henry W. Aufderhaar, 2005 WI 108, reversing 2004 WI App 208
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding1: The State did not acquire personal delinquent over the alleged delinquent when it mailed a summons for appearance to an address from which the juvenile had moved, and no one appeared in court in response to the summons:
¶17      Wisconsin Stat. § 938.27(3)(a)1 plainly requires notice "under s. 938.273" be given to the juvenile and "any parent."  Wisconsin Stat. § 938.273(1) provides three ways in which statutorily sufficient notice may be provided:  (1) by mailing a summons or notice for appearance in regard to the delinquency petition and the juvenile and any parent appear; (2) by personal service on the juvenile and any parent; or (3) if the court is satisfied that it is impracticable to serve the summons or notice personally, by certified mail addressed to the last known addresses of the persons to be served. 


¶27      Accordingly, we agree with Aufderhaar that unless the defect is waived by appearance, compliance with statutory provisions regarding service of process is required before a juvenile court has personal jurisdiction. [13]  Additionally, a juvenile's actual knowledge of the pendency of the action is not equivalent to service.  See Hagen v. City of Milwaukee< Employee's Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶13, 262 Wis. 2d 113, 663 N.W.2d 268  (citing Heaston v. Austin, 47 Wis. 2d 67, 71, 176 N.W.2d 309 (1970)).  Allowing the juvenile court to waive Aufderhaar into adult court, where the criminal penalties are more substantial, without its following the proper statutory procedure fails to "provide due process through which each juvenile offender and all other interested parties are assured fair hearings, during which constitutional and other legal rights are recognized and enforced," one of the stated purposes of the Juvenile Justice Code.  Wis. Stat. § 938.01(2)(d). 

[13]  We have previously stated that "[f]ailure to obtain personal jurisdiction over the defendant by statutorily proper service of process is a fundamental defect fatal to the action, regardless of prejudice."  Hagen, 262 Wis. 2d 113, ¶13 (citing Am. Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 534-35, 481 N.W.2d 629 (1992).
Issue/Holding2: (Remedy for lack of jurisdiction:)
¶28      Because personal jurisdiction never attached, the juvenile court could not waive Aufderhaar into adult court.  Therefore, the waiver order was ineffective, and we reverse the court of appeals decision affirming the circuit court's denial of Aufderhaar's motion to dismiss the criminal action in adult court.  However, we do so without prejudice.  Additionally, because the juvenile proceeding commenced before Aufderhaar turned seventeen years old, Wis. Stat. § 938.12(2); D.W.B. v. State, 158 Wis. 2d 398, 399, 462 N.W.2d 520 (1990) (juvenile court proceeding is commenced on the date the juvenile petition is filed), this proceeding should be returned to the point at which the jurisdictional defect occurred.  Thereafter, the juvenile court can determine whether it will attempt service sufficient to satisfy Wis. Stat. § 938.273(1).  If it does obtain sufficient service to accord personal jurisdiction over Aufderhaar, it may file yet another waiver petition to transfer the matter into adult court.  Or in the alternative, the court may dismiss the delinquency petition.  We leave that decision to the judgment of the juvenile court.
Competency of Court, Generally
Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
For Rachel B.: John J. Grau
¶16      Competency has been defined as the court's power to exercise subject matter jurisdiction. Kohler Co. v. Wixen, 204 Wis.  2d 327, 337, 555 N.W.2d 640 (Ct. App. 1996). The concept of competency is narrower than that of subject matter jurisdiction, because while the constitution confers subject matter jurisdiction on the courts, the state legislature may limit the ability of the courts to exercise that power by statute. See Wis. Const. art. VII, § 8; Wis.  Stat. § 801.04. "Such a legislative enactment affects that court's competency to proceed rather than its subject matter jurisdiction." Cepukenas v. Cepukenas, 221 Wis.  2d 166, 170, 584 N.W.2d 227 (Ct. App. 1998). Competency is of central importance in this case, since the "failure to comply with mandatory time limits under the Children's Code may result in the loss of the circuit court's competency to proceed." State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927.
Subject-Matter and Competency, Compared   Currier v. Wis. DOR, 2006 WI App 12
Issue/Holding: ¶6 n. 2:
Competency has been defined as the court’s power to exercise subject matter jurisdiction. Kohler Co. v. Wixen, 204 Wis. 2d 327, 337, 555 N.W.2d 640 (Ct. App. 1996). The concept of competency is narrower than that of subject matter jurisdiction, because while the constitution confers subject matter jurisdiction on the courts, the state legislature may limit the ability of the courts to exercise that power by statute. Sheboygan County Dep’t of Social Servs. v. Matthew S., 2005 WI 84, ¶16, 282 Wis. 2d 150, 698 N.W.2d 631. “Such a legislative enactment affects that court’s competency to proceed rather than its subject matter jurisdiction.” Cepukenas v. Cepukenas, 221 Wis. 2d 166, 170, 584 N.W.2d 227 (Ct. App. 1998). Thus, in this case, the failure to comply with mandatory time limits in Wis. Stat. ch. 227 would result in the loss of the circuit court’s competency to proceed. See Cudahy v. DOR, 66 Wis. 2d 253, 261-62, 224 N.W.2d 570 (1974); Johnsonville Sausage, Inc. v. DOR, 113 Wis. 2d 7, 9, 11, 334 N.W.2d 269 (Ct. App. 1983).
Subject-Matter Jurisdiction and Competency of Trial Court, Compared
Village of Trempeleau v. Mike R. Mikrut, 2004 WI 79, affirming unpublished decision
¶8. Article VII, section 8 of the Wisconsin Constitution provides that: "[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state." Accordingly, we have stated that in Wisconsin, "no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982)(citing Matter of Guardianship of Eberhardy, 102 Wis. 2d 539, 307 N.W.2d 881 (1981)); Kline v. Burke Construction Co., 260 U.S. 226, 234 (1922). The "jurisdiction and the power of the circuit court is conferred not by act of the legislature, but by the Constitution itself." Eberhardy, 102 Wis. 2d at 550. Thus, the subject matter jurisdiction of the circuit courts cannot be curtailed by state statute.2

¶9. We have recognized, however, that a circuit court's ability to exercise the subject matter jurisdiction vested in it by the constitution may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases. …

¶14. The concept of competency has been characterized as a "narrower concept" involving a "lesser power" than subject matter jurisdiction. See Village of Shorewood, 174 Wis. 2d at 200; B.J.N., 162 Wis. 2d at 656; Bollig, 222 Wis. 2d at 555-56. As such, a judgment rendered by a court lacking competency is "not void for the lack of subject matter jurisdiction but invalid for the lack of competency to proceed to judgment." Mueller, 105 Wis. 2d at 178 (citing Wisconsin Pub. Serv. Corp. v. Krist, 104 Wis. 2d 381, 303 N.W.2d 854 (1981), and Restatement of Judgments, ¶¶7, 10 at 43, 58-59 (1942)). "If a court has the power, i.e., subject matter jurisdiction, to entertain a particular type of action, its judgment is not void even though entertaining it was erroneous and contrary to the statute." Id. at 177-78.

Subject-Matter Jurisdiction and Competency of Trial Court, Compared

Amy Z. v. Jon T., 2004 WI 73

For Jon T.: Geoffrey Dowse


¶6 … "[T]he circuit courts possess `plenary' jurisdiction by virtue of Wis. Const. Art. VII, § 8, and that jurisdiction, in the sense of judicial power to act, does not depend on legislative authorization." Schoenwald v. M.C., 146 Wis. 2d 377, 390, 432 N.W.2d 588 (Ct. App. 1988) (citing Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 551, 307 N.W.2d 881 (1981)). Thus, "[n]o circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Schoenwald, 146 Wis. 2d at 390 (citation omitted).

¶7. In light of this law, Jon's reliance on the law of subject matter jurisdiction is misplaced. Instead, Jon's argument is more properly cast in terms of the circuit court's competency to proceed. While a circuit court may have subject matter jurisdiction to consider and determine any type of action, failure to comply with a statutory mandate results in a loss of competency that prevents a court from adjudicating the specific case before it. Kohler Co. v. Wixen, 204 Wis. 2d 327, 336-37, 555 N.W.2d 640 (Ct. App. 1996). As the Schoenwald court explained, even though a circuit court may have subject matter jurisdiction, it "may nevertheless lack `competency' to act because the state has not conferred power upon the court." Schoenwald, 146 Wis. 2d at 390. …

Civil -- Personal -- Service on Nonparty, § 801.02(1)

Hagen v. City of Milwaukee, 2003 WI 56

¶1. The question in this case is whether the circuit court can acquire personal jurisdiction over a defendant when the plaintiff does not serve the summons and complaint on the defendant, but, rather, mistakenly serves a nonparty in the same building, allegedly after having been directed to do so by a person in the defendant's office. The answer is no.

(Failure to comply with statutes governing service of process is fatal to claim, even if defendant had actual notice. ¶12. Thus, mistaken service on a nonparty doesn’t confer jurisdiction, even where the mistake can be considered reasonable. ¶25.)

Offenses in “Indian Country,” 18 U.S.C. § 1162 – Felon in Possession of Firearm, § 941.29
State v. Brian N. Jacobs, 2007 WI App 155
FFor Jacobs: Joan M. Boyd
Issue/Holding: The state has jurisdiction over the crime of felon in possession of firearm, § 941.29, committed on a reservation:
¶3 … Jacobs concedes that 18 U.S.C. § 1162(a) (2006), gives the State “jurisdiction over [criminal] offenses committed by … Indians” on all “Indian country” within the state. He asserts, however, that Wis. Stat. § 941.29 contradicts 18 U.S.C. § 1162(b), which prohibits the State from “depriv[ing] any Indian … of any right, privilege, or immunity afforded under Federal treaty….” He claims the right to hunt is protected by an 1856 treaty between the United States and his tribe.

¶4 Wisconsin Stat. § 941.29 is not specifically a hunting restriction or regulation but, rather, a generally applicable, neutral criminal statute. Thus, application of § 941.29 does not, in and of itself, make Jacobs’ exercise of treaty hunting rights illegal. Rather, Jacobs’ own actions in committing a felony have limited him from fully enjoying those rights. See United States v. Three Winchester 30-30 Caliber Level Action Carbines, 504 F.2d 1288, 1292 (7th Cir. 1974). The effect that § 941.29 has on Jacobs’ ability to possess a weapon is an incidental result of his own conduct. See United States v. Gallaher, 275 F.3d 784, 789 (9th Cir. 2001). The circuit court had jurisdiction. [1]

Indians -- Regulation of Off-Reservation Hunting Rights
State v. Adam W. Matthews, Jeremy J. Husbeck, 2001 WI App 243, PFR filed for Husbeck
For Defendants: Jane K. Smith
Issue: Whether the state has authority to regulate off-reservation, treaty-based Chippewa hunting rights for the protection of public health and safety.
Holding: "¶3;. We conclude that the State may regulate the defendants' off-reservation exercise of treaty-based hunting rights for the protection of public health and safety if the State establishes that the disputed regulation is reasonable and necessary for that purpose and does not discriminate against Indians. Therefore, we affirm the circuit court's order and remand for further proceedings."
"Territorial"- out-of-state conduct with in-state consequences.
State v. Mark Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Ct. App. 1999).
For Inglin: Stephen M. Glynn & Robert R. Henak.
Under Wis. Stat. § 939.03(1)(c), jurisdiction attaches for an act performed "with intent that it cause in this state a consequence set forth in a section defining a crime." § 948.31(3)(a) prohibits hiding a child so as to make his/her discovery more difficult for the other parent. Inglin, while in Canada, intended that his concealment of the child would cause his ex-wife, in Wisconsin, to have difficulty discovering the child, and jurisdiction therefore attached. In other words, out-of-state conduct may be prosecuted when it has detrimental effect within the state.
Adult Court -- "Becker" evidentiary hearing, on manipulation of court jurisdiction.
State v. Augustin Velez, 224 Wis.2d 1, 589 N.W.2d 9 (1999), affirming unpublished decision.
For Velez: Scott B. Taylor, Lucas, Wilkoski & Taylor.
Holding: The state bears the burden of proving no intentional delay in charging an adult with an offense committed as a juvenile, so as to avoid juvenile court jurisdiction. The principal issue here is whether the defendant is entitled to an evidentiary hearing as matter of right, upon mere allegation of intentional manipulation. The court says no. (amalgamating test for postconviction hearing in Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972), with pretrial hearing in State v. Garner, 207 Wis. 2d 520, 531-32, 558 N.W.2d 916 (Ct. App. 1996)). When a motion to dismiss is filed, the trial court must determine whether an evidentiary hearing is necessary. If the motion alleges facts entitling the defendant to relief then the court must hold an evidentiary hearing; if not, then the motion may be denied. The court must carefully consider the record, motion, arguments, and offers of proof, and if there's a reasonable possibility a factual basis will be developed at an evidentiary hearing, then one must be held. Review is deferential, for erroneous exercise of discretion. The trial court held a nonevidentiary haring on the question of manipulation, entertaining offers of proof from both sides. Velez alleged that the state should have filed a delinquency petition, not just a warrant, but he asserted no facts supporting the idea that this procedure was improper or unusual. He also alleged that the warrant may not have been entered into law enforcement computer databases. The trial court properly exercised discretion in denying the motion without an evidentiary hearing. (the court noting that a motion to dismiss isn't to be treated as a discovery device). Along the way, the court reaffirms the significance of the due process rights protected by Becker. And explains why placing on the defendant the burden of production (as opposed to persuasion) doesn't detract from these rights. Finally, the court explicitly holds that the mere filing of an adult charge for an offense committed when the defendant was a juvenile doesn't create a rebuttable presumption of manipulation.
Statute of Limitations, § 939.74(1) – Complaint as Commencing Prosecution of Already-Incarcerated Defendant
State v. Kevin D. Jennings, 2003 WI 10, reversing 2002 WI App 16, 250 Wis. 2d 138, 640 N.W.2d 165
For Jennings: Steven M. Compton

¶1 … At issue is whether a criminal complaint that is filed against a defendant, who is already incarcerated, is sufficient to commence a prosecution. Based on the legislative history of Wis. Stat. § 939.74(1) (1999-2000) and related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests, we conclude that if an individual, like Jennings, is already in custody due to incarceration, a complaint is sufficient to commence a prosecution....

¶27. Based on all the above, we hold that when a defendant is already in custody due to his or her incarceration, the filing of a criminal complaint is sufficient to commence a prosecution. Because we hold that the filing of a criminal complaint, without the issuance of a warrant, is sufficient to commence prosecution of a defendant who is already in custody, we do not address whether an order to produce satisfies the "summons" requirement under Wis. Stat. § 939.74(1).

Venue, Proof - Generally
State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke
¶9        “‘The term venue refers to the locality of the prosecution; venue sets the particular judicial district in which a criminal charge is to be filed and in which it will be tried.’” State v. Anderson, 2005 WI 54, ¶27, 280 Wis. 2d 104, 695 N.W.2d 731 (quoting 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a), at 458 (2d ed. 1999)) (one set of internal quotation marks omitted). In contrast, jurisdiction “‘refers to the authority or power of the court to take action on a particular charge. Id. (quoting 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a), at 458 (2d ed. 1999).

¶10      In his brief and at oral argument, Lippold challenged the standard of review proposed by the State. It is well-established that following a trial, we are obligated to give deference to a jury verdict. As established in State v. Corey J.G., 215 Wis. 2d 395, 407-08, 572 N.W.2d 845 (1998), “[w]e will not reverse a conviction based upon the State’s failure to establish venue unless the evidence, viewed most favorably to the [S]tate and the conviction, is so insufficient that there is no basis upon which a trier of fact could determine venue beyond a reasonable doubt.” Although venue in Wisconsin must be proven beyond a reasonable doubt, it is not an element of the crime, but rather a matter of procedure, which refers to the place of trial. State v. Dombrowski, 44 Wis.  2d 486, 501-02, 171 N.W.2d 349 (1969). We first dispose of Lippold’s argument that the charges against him have to be dismissed because venue must by proven by direct evidence of his receiving or transporting the equipment in Milwaukee County. Venue need not be proven by direct evidence. Smazal v. State, 31 Wis.  2d 360, 363, 142 N.W.2d 808 (1966) (“[T]he lack of direct proof does not necessarily mean venue was not proved beyond a reasonable doubt.”). It can also be proven by circumstantial evidence. Id. Venue may be established by proof of facts and circumstances from which it may be reasonably inferred. [4] Id. at 363.

Venue, § 971.19(12) – Applicability to § 946.12(3), Misconduct in Public Office
State v. Scott R. Jensen, 2009 WI App 26, PFR filed 2/13/09
For Jensen: Robert H. Friebert
Issue/Holding: The venue statute for certain ethical violations by public officers, which mandates trial “in circuit court for the county where the defendant resides,” is inapplicable to § 946.12(3) unless the case arises from a Government Accounting Board-authorized investigation.
Venue: Receiving Stolen Property, § 943.34
State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke
Issue/Holding: On a charge of receiving stolen property, venue may rest in the county where the underlying theft occurred (and, provable by circumstantial rather than direct evidence):
¶16   Extrapolating from the holding in Swinson, we conclude that because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen and that act occurred in Milwaukee County, venue was properly established. Lippold argues that the element of the crime of receiving stolen property—that the State needs to prove the property was stolen—is not an “act” in the classical sense; rather, the word “stolen” simply describes the type of property needed to fulfill the requirements of the crime. Again, we look to Swinson for assistance. In Swinson, several of the elements are not “acts” as Lippold would have us define them. Instead, they appear to be states of mind. Consequently, we are satisfied that Lippold reads Swinson too narrowly.
The court stresses that the evidence of Lippold’s guilt of the theft itself “was extremely strong,” ¶¶27-28, but the holding doesn’t seem to rest on that perception.
Venue, § 971.29 -- Proof
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper
Issue/Holding: Venue, on charges of theft by fraud, was sufficiently proved. Where an offense is composed of multiple acts, occurrence in the county of any act suffices for venue in that county, § 971.19(2). The crimes involved false invoices addressed to a company in the county; this is enough to show that the company was deceived by a false representation in that county (an element). ¶22. Moreover, the fact that purchase orders were billed to the company’s accounts payable department in that county “is sufficient circumstantial evidence that the relevant checks were” signed in the county; evidence, that is, that the company has been defrauded in the county. ¶23.
Venue -- Waiver: Tactical, delegated to counsel.
State v. Marvin L. Hereford, 224 Wis.2d 605, 592 N.W.2d 247 (Ct. App. 1999).
Holding: A fundamental right, requiring the defendant's personal waiver before it can be relinquished, is one that immediately and directly lowers protection from oppression by the state. Venue - which is for the convenience of the parties - doesn't fall within that category, and trial in the vicinage is a tactical decision delegated to counsel, not a fundamental right necessitating waiver prior to a change of venue.