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Law Pro
Law Pro, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 24870
Experience:  20 years experience in consumer advocacy, debt collection violations, contracts, construction
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[How to] Collateral Attack on Void Judgment It is my understanding

Customer Question

[How to] Collateral Attack on Void Judgment
It is my understanding - based on some online case law - that a judgment which is void is a legal nullity from the outset. Further, such a void judgment can be attacked at any time - and in any court. A judgment may be void for a number of reasons including, but not limited to, the court's noncompliance with statutory mandates.

Are each of these statements true?

If so, in what manner could a defendant attack the judgment on grounds it is void? The judgment was entered by Wisconsin municipal court.
Submitted: 4 years ago.
Category: Consumer Protection Law
Expert:  Law Pro replied 4 years ago.
Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

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Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.

No, that is wrong - a wrong impression.

Please explain the judgment - was it a default judgment?

Please explain where the parties reside.

What does the underlying judgment concern?
Customer: replied 4 years ago.

Actually, your response quite quite prompt!

In answer to your questions:

No - this was not a default judgment. The judgment was entered following a full trial before a municipal court.

The parties are in Wisconsin. The underlying (void) judgment results from a municipal citation.

Direct appeal is no longer an option, for time has tolled. So - based on review of the law - I suspect I am limited (force to resort) to collateral attack before a higher court (State circuit court) for, perhaps, injunctive relief, etc.

 

Customer: replied 4 years ago.

I have already moved the municipal court to vacate this civil judgment, but was cut very short. Appealed that ruling to circuit court - but failed to serve opposing side (the municipal court had said it would serve notice to its subcontractor attorney.... but no proof exists that it did). So reviewing court dismissed for lack of service.

Expert:  Law Pro replied 4 years ago.
What makes you think the judgment is "void"? Can you explain?
Customer: replied 4 years ago.

I believe is it void for at least two (2) reasons:


First reason is based on Wis. Stat. 802.06(4)


https://docs.legis.wisconsin.gov/statutes/statutes/802/06


Which governs pleadings, motions, and pretrial practice.


I filed a motion to dismiss for lack of personal jurisdiction. This was filed approx 100 days prior to the trial being held.


This immediately obligated the court to hear and decide the motion (sometime before entering judgment).


The court proceeded to trial, conviction, and sentencing without EITHER:


a) calling the matter for argument


b) making any explicit finding during trial (in fact, the words "jurisdiction" and "motion" were never spoken at the trial.


c) nor did the court enter any order deferring the motion hearing to any particular time.


 


 

Customer: replied 4 years ago.

The second reason goes to the jurisdictional challenge itself, as it is commonly held that "jurisdiction once, challenged, must first be decided" before a court obtains necessary jurisdiction to proceed to adjudication. There is ample federal case law which states this in a variety of ways.


Thus, the court proceeded without all necessary jurisdiction. The judgment is therefore void.

Expert:  Law Pro replied 4 years ago.
This is a criminal case - correct?
Customer: replied 4 years ago.

No. Civil. A municipal citation - a ticket.

Expert:  Law Pro replied 4 years ago.
OK, if the infraction occurred within the municipality - then they have jurisdiction over the issue.

Now they may not have personal jurisdiction over the person to make them appear - but they can go ahead with the trial and get a default judgment if the person doesn't show for trial.
Customer: replied 4 years ago.

Yes. I understand those things. The municipality has subject matter jurisdiction (although I've read such jurisdiction can be lost for a number of reasons... but that is not the issue here).


Again, this was not a default judgment. I appeared to argue my motion... the court instead proceeded directly to trial.


The point now is that I filed a pretrial motion to dismiss, challenging personal jurisdiction. This placed the burden on the municipality to prove jurisdiction (when in pretrial status). The court was required by law (the 802.06(4) I referred you to) to hear and decide that motion BEFORE trial.


The court did not do so.


Further, by failing to make a ruling on the motion, the court denied me my right to appeal that ruling.... having made no ruling, there was no decision to appeal.


The court simply assumed jurisdiction.... and proceeded.


The court proceeded to trial in the face of the statutory mandate requiring it first hear and decide the jurisdictional challenge - where the municipality had the burden of proof.


 


 

Expert:  Law Pro replied 4 years ago.

They don't have to prove personal jurisdiction when the act complained of occurred in their jurisdiction - what the citation or ticket was for.

They just have to prove subject matter jurisdiction.

 

What was the ticket or citation for?

Customer: replied 4 years ago.

I feel we're wandering into the weeds, Fred...


 


Wisconsin Statutes governing Municipal Courts:


800.01(2) The municipal court has jurisdiction over a defendant when any of the following conditions is met:


(a) The defendant is served with a citation or a summons and complaint as provided under s. 801.11 (1) (a) to (c), (5), and (6).

(b) The defendant is arrested and brought before the court personally or through interactive video and audio transmission conducted in accordance with the rules of the supreme court.

(c) The defendant voluntarily appears before the court.

(d) The court finds that the defendant has acknowledged receipt of the citation or summons and complaint.

(e) The summons and complaint or citation are sent to the defendant by 1st class mail.

 


Wisconsin Statutes, section 802.06:(2) How presented.


(a) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

1. Lack of capacity to sue or be sued.

2. Lack of jurisdiction over the subject matter.

3. Lack of jurisdiction over the person or property.

4. Insufficiency of summons or process.

5. Untimeliness or insufficiency of service of summons or process.

6. Failure to state a claim upon which relief can be granted.

7. Failure to join a party under s. 803.03.

8. Res judicata.

9. Statute of limitations.

10. Another action pending between the same parties for the same cause.

I had a right to do so, and did file a motion under that section, asserting


3. Lack of jurisdiction over the person or property.

4. Insufficiency of summons or process.

5. Untimeliness or insufficiency of service of summons or process.

NOW, section 802.06(4) :

(4) Preliminary hearings. The defenses specifically listed in sub. (2), whether made in a pleading or by motion, the motion for judgment under sub. (3) and the motion to strike under sub. (6) shall be heard and determined before trial on motion of any party, unless the judge to whom the case has been assigned orders that the hearing and determination thereof be deferred until the trial. The hearing on the defense of lack of jurisdiction over the person or property shall be conducted in accordance with s. 801.08.

So my defenses, specifically listed in sub.(2), made by motion, were required to be heard and determined before trial. That is, unless the judge ordered the hearing and determination be deferred until the trial (there is no such order).

Expert:  Law Pro replied 4 years ago.
I’m going to opt out of your question and open it up to other experts because I couldn’t be sure of my answer to you. I agree - we are not agreeing.

Your JA Account has not been charged for this conversation and your question is back in the queue. You do not have to stay online for the question to be active. Should an expert pick it up, you should be alerted via email and/or SMS unless you actively disable these features.

There is no need for you to reply at this time as this may “lock” your question back to me, thus inadvertently delaying other experts’ access to it.

My apologies for any inconvenience and Good Luck.

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