COURT OF APPEALS

DECISION

DATED AND FILED

August 31, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP60 Cir. Ct. No. 2019CV106

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

CITY OF WAUSAU,

 PLAINTIFF-RESPONDENT,

 V.

DANIELLE RAE FISCHER,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County: 

GREGORY J. STRASSER, Judge. Affirmed. 

¶1 STARK, P.J.1 Danielle Fischer appeals an order denying her WIS.

STAT. § 806.07 motion for relief from a prior circuit court order. For the reasons 

explained below, we conclude the circuit court did not erroneously exercise its 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP60

2

discretion by denying Fischer’s § 806.07 motion. We also reject Fischer’s 

argument that she was improperly forced to pay for an unnecessary hearing 

transcript, as she has not shown that she properly preserved that issue for appeal. 

We therefore affirm.

BACKGROUND

¶2 Fischer was cited for first-offense operating a motor vehicle while 

intoxicated (OWI), contrary to WIS. STAT. § 346.63(1)(a), as adopted by the City 

of Wausau Municipal Code. See WAUSAU, WIS., CODE § 10.01.010 (2021). She

was also issued a notice of intent to revoke her operating privilege under WIS.

STAT. § 343.305(9)(a) for refusing to submit to an evidentiary chemical test of her 

blood upon request by a law enforcement officer. Fischer timely requested a 

refusal hearing, and proceedings regarding both the OWI citation and the refusal 

were assigned a single case number in the City of Wausau Municipal Court.

¶3 Both the refusal hearing and a trial on the OWI citation were 

ultimately scheduled to take place on January 16, 2019. However, at the 

beginning of the January 16 hearing, Fischer entered a guilty plea to the OWI 

citation. She then moved to dismiss the refusal charge based on her plea to the 

associated OWI charge, pursuant to State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 

354 (1983).

2

 The municipal court concluded that before it could exercise its 

 

2

 In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), our supreme 

court determined that a circuit court had properly exercised its discretion by dismissing a refusal 

charge against a defendant who had already pled guilty to the underlying OWI charge. The court 

reasoned that Wisconsin’s implied consent law “is designed to induce persons to submit to an 

alcohol test to expedite securing evidence to determine whether or not a suspected person is 

intoxicated to a degree warranting” an OWI charge, but if the suspected person subsequently 

pleads guilty to an OWI charge, “there no longer remains a need for penalties for failure to submit 

to a test which has become unnecessary in the particular case.” Id.
No. 2020AP60

3

discretion under Brooks, it needed to “have some facts” regarding Fischer’s 

alleged refusal. Fischer then stipulated that there was a proper basis for the stop of 

her vehicle and for her arrest, and that the officer read her the “Informing the 

Accused” form. According to Fischer, the only disputed issue was “whether or 

not this actually was a refusal.”

¶4 After hearing evidence on that issue and arguments by the parties, 

the municipal court found that Fischer had improperly refused to submit to a 

chemical test of her blood. However, based on Brooks, the court stated that it 

would exercise its discretion to dismiss the refusal charge. As penalties for the 

OWI violation, the court imposed a $911 fine, revoked Fischer’s operating 

privilege for seven months, and ordered the installation of an ignition interlock 

device (IID) on her vehicle for a period of one year. The court expressly stated 

that it was imposing the IID requirement “at the OWI level,” rather than as a 

penalty for the refusal charge, which the court had dismissed.

¶5 Fischer subsequently filed a notice of appeal asking the Marathon 

County Circuit Court to conduct a “transcript review” of the municipal court’s 

decision. See WIS. STAT. § 800.14(4)-(5). Ten days later, Fischer filed a motion 

asking the circuit court to delete the IID requirement from the municipal court’s 

judgment. Fischer argued that under WIS. STAT. § 343.301, the municipal court 

could order an IID only if Fischer: (1) had a blood alcohol concentration (BAC)

above 0.15; (2) had one or more prior OWI convictions; or (3) improperly refused 

to submit to a blood test and was “convicted of refusal under [WIS. STAT.

§] 343.305.” Fischer noted that the State had not presented any evidence as to her 

BAC, and that it was undisputed she did not have any prior OWI convictions. 

Fischer further observed that the municipal court had exercised its discretion to 
No. 2020AP60

4

dismiss the refusal charge under Brooks. Fischer therefore asserted that the court 

had no basis to order an IID.

¶6 On June 17, 2019, the circuit court issued a written decision and 

order denying Fischer’s motion to delete the IID requirement from the municipal 

court’s judgment and dismissing her appeal. The court agreed with Fischer that 

the City of Wausau had not proved either that her BAC was over 0.15 at the time 

of driving or that she had any prior OWI convictions. The court concluded, 

however, that WIS. STAT. § 343.301(1g)(a)1. required the municipal court to order 

installation of an IID if it found that Fischer had improperly refused to take a test 

under WIS. STAT. § 343.305, regardless of whether the municipal court ultimately 

exercised its discretion to dismiss the refusal charge. The court then reviewed the 

transcript of the refusal hearing and determined the evidence supported the 

municipal court’s finding that Fischer had improperly refused to take a test under 

§ 343.305. The court therefore concluded that the municipal court had properly 

imposed the IID requirement, even though it had exercised its discretion to dismiss 

the refusal charge.

¶7 Fischer moved for reconsideration, arguing a mere finding of an 

improper refusal was an insufficient basis to order an IID in a case where the 

underlying refusal charge was dismissed and, as a result, the defendant’s operating 

privilege was not revoked under WIS. STAT. § 343.305(10). She relied on 

§ 343.305(10m), which states that the “requirements and procedures for 

installation of an ignition interlock device under s. 343.301 apply when an 

operating privilege is revoked under sub. (10).”

¶8 The circuit court denied Fischer’s reconsideration motion in an 

August 14, 2019 order. The court concluded that after the municipal court found 
No. 2020AP60

5

that Fischer had improperly refused a blood test, the municipal court was required 

to revoke her operating privilege under WIS. STAT. § 343.305(10). Consequently, 

the court held that the municipal court had erroneously exercised its discretion by 

failing to revoke Fischer’s operating privilege under that subsection and by instead 

dismissing the refusal charge.

3

 The court noted, however, that the municipal court 

had made all of the findings necessary to revoke Fischer’s operating privilege 

under § 343.305(10). The court therefore reasoned that “while the municipal court 

did not follow the statutory revocation mandate set forth above, the resulting IID 

order it did impose was in compliance with the same.” The court concluded:

In the end, the municipal court muddied the waters by 

wrongly exercising discretion in failing to link its finding 

on the refusal action to its IID order. However, the 

confusion was caused by an assertion that the municipal 

court could hold a refusal hearing, find against the 

defendant, and then still dismiss the refusal action. The 

statute plainly dictates otherwise.

¶9 Three months later, on November 14, 2019, Fischer filed a motion 

for relief from the circuit court’s prior order under WIS. STAT. § 806.07. Fischer 

took issue with the circuit court’s conclusion in its order denying reconsideration

that the municipal court had improperly dismissed the refusal charge. She asserted 

the circuit court “seem[ed] to have forgotten that it did not have jurisdiction over 

the refusal anymore.” Specifically, Fischer asserted that under Town of Menasha 

v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993), the court had no 

jurisdiction to address the dismissal of the refusal charge because the City had not 

 

3

 Although the municipal court revoked Fischer’s operating privilege for a period of 

seven months as a sanction for her OWI violation, it is undisputed that the court did not revoke 

her operating privilege under WIS. STAT. § 343.305(10). Had the revocation occurred under that 

subsection, the municipal court would have been required to revoke Fischer’s operating privilege 

for a period of one year. See § 343.305(10)(b)2.
No. 2020AP60

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appealed the dismissal, and the court’s “decision to readdress [the] dismissal” was 

therefore “void.” Fischer’s motion did not specifically cite any paragraph or 

paragraphs of § 806.07(1) under which she was seeking relief.

¶10 The circuit court denied Fischer’s WIS. STAT. § 806.07 motion in a 

letter dated November 21, 2019. The court noted that the motion was not filed 

until five months after the court had entered its June 17, 2019 final order denying 

Fischer’s motion to delete the IID requirement. The court also noted that Fischer’s 

motion did not cite any “specific basis” for granting relief under § 806.07. The

court explained:

As best as the court can determine, the motion is based 

upon an assertion that the court dismissed a refusal charge 

since the motion states, “However, the Court seems to have 

forgotten that it did not have jurisdiction over the refusal 

anymore ...” The court struggles to understand what this 

means, or how it applies, because it never entered an order 

related to a refusal charge.

The court ultimately stated that it was denying Fischer’s motion because she had 

failed to establish “how ... § 806.07 applies and why it took five months to bring 

the motion.”

¶11 Fischer filed a notice of appeal from the circuit court’s 

November 21, 2019 decision denying her WIS. STAT. § 806.07 motion. The City 

moved to dismiss the appeal for lack of jurisdiction, arguing that Fischer’s notice 

of appeal was not timely filed with respect to the circuit court’s June 17, 2019 

final order, its August 14, 2019 order denying reconsideration, or its 

November 21, 2019 order denying relief under § 806.07.

¶12 In an order dated February 26, 2020, we agreed with the City that 

Fischer’s appeal was untimely as to the June 17 and August 14 orders. We 
No. 2020AP60

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concluded, however, that the notice of appeal sought review only of the 

November 21 order denying relief under WIS. STAT. § 806.07. We further 

concluded that the notice of appeal was timely as to that order because it was filed 

within ninety days after the order was entered. We therefore held that the notice 

of appeal “provides this court with jurisdiction to consider whether the circuit 

court properly determined there were no grounds to reopen the matter 

under ... § 806.07.” We cautioned, however, that the scope of the appeal was 

“limited to that issue” and did not include issues decided by the court’s June 17 

and August 14 orders.

DISCUSSION

¶13 Whether to grant relief under WIS. STAT. § 806.07 is within the 

circuit court’s discretion, and we will not reverse unless the court erroneously 

exercised its discretion. See Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 

282 Wis. 2d 46, 698 N.W.2d 610. A court properly exercises its discretion when it 

employs a process of reasoning based on the facts of record and reaches a 

conclusion based on the application of the correct legal standard. Id. We will not 

reverse a discretionary determination “if the record shows that discretion was in 

fact exercised and we can perceive a reasonable basis for the court’s decision.” Id.

(citation omitted). Because the exercise of discretion is so essential to the circuit 

court’s functioning, we generally look for reasons to sustain discretionary 

determinations. Id. 

¶14 WISCONSIN STAT. § 806.07(1) sets forth eight grounds on which a 

circuit court may relieve a party from a prior judgment, order, or stipulation. On 

appeal, Fischer argues that the circuit court should have granted her relief under 

§ 806.07(1)(d), which permits a court to grant relief when a judgment “is void.” 
No. 2020AP60

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Alternatively, Fischer contends the court should have granted her relief under 

§ 806.07(1)(h)—a “catch-all” provision that applies when there are “any other 

reasons justifying relief.” See Sukala, 282 Wis. 2d 46, ¶9. In response, the City 

asserts Fischer cannot now claim that the court erroneously exercised its discretion 

by failing to grant her relief under either para. (1)(d) or (1)(h) because her motion 

did not specifically seek relief under either of those paragraphs.

¶15 The City is correct that Fischer’s WIS. STAT. § 806.07 motion did 

not specifically cite either para. (1)(d) or (1)(h). Fischer argues, however, that the 

allegations in her motion were sufficient to put the circuit court on notice that she 

was seeking relief under para. (1)(d). As noted above, Fischer’s motion asserted 

that in its order denying reconsideration, the circuit court had erred by concluding 

that the municipal court had improperly dismissed the refusal charge. Fischer 

asserted that, under Bastian, the circuit court had no jurisdiction to address the 

municipal court’s decision to dismiss the refusal charge because the City had not 

appealed that decision. Fischer therefore asserted that the circuit court’s “decision 

to readdress [the] dismissal” was “void.” We agree with Fischer that these 

allegations should have reasonably informed the circuit court that she was seeking 

relief under para. (1)(d), even though she did not specifically cite that paragraph.

¶16 Nevertheless, we ultimately agree with the City that the circuit court 

did not erroneously exercise its discretion by declining to grant Fischer relief 

under WIS. STAT. § 806.07(1)(d). Fischer relies on Bastian, in which the 

defendant was cited for both OWI and operating with a prohibited alcohol 

concentration (PAC). Bastian, 178 Wis. 2d at 193. On appeal from Bastian’s 

conviction on the PAC charge, we considered whether the circuit court had 

“subject matter jurisdiction” over the that charge, even though: (1) a municipal 

court had previously dismissed the PAC charge after trial without a finding of 
No. 2020AP60

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guilt; (2) on appeal to the circuit court, Bastian had requested a new trial only on 

the OWI charge; and (3) the Town of Menasha did not request a new trial on the

PAC charge. Id. We concluded that under those circumstances, the circuit court 

lacked subject matter jurisdiction over the PAC charge because the party 

aggrieved by the dismissal of the PAC charge—i.e., the town—had failed to 

appeal that decision. Id. at 196.

¶17 Fischer argues that, under Bastian, the circuit court lacked subject 

matter jurisdiction to address the municipal court’s decision to dismiss the refusal 

charge because the City did not appeal that decision. “A judgment is void if the 

court rendering it lacked subject matter jurisdiction.” State ex rel. R.G. v. 

W.M.B., 159 Wis. 2d 662, 666, 465 N.W.2d 221 (Ct. App. 1990). Accordingly, 

Fischer asserts that the circuit court’s decision that the municipal court improperly 

dismissed the refusal charge is void, and she is therefore entitled to relief from the 

court’s order under WIS. STAT. § 806.07(1)(d).

¶18 Fischer’s argument fails because, since Bastian was decided, our 

supreme court has reiterated that in Wisconsin, “no circuit court is without subject 

matter jurisdiction to entertain actions of any nature whatsoever.” Village of 

Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis. 2d 76, 681 N.W.2d 190 

(citation omitted). Although a circuit court’s failure to comply with statutory 

mandates for invoking its subject matter jurisdiction may result in the court losing 

competency to exercise its subject matter jurisdiction in a particular case, a defect 

of competency is not jurisdictional “and does not result in a void judgment.” Id., 

¶¶9, 34. Thus, assuming without deciding that absent an appeal by the City, the 

circuit court could not consider whether the municipal court properly dismissed 

Fischer’s refusal charge, we nevertheless reject Fischer’s assertions that the circuit 

court lacked subject matter jurisdiction to address that issue, and that its order
No. 2020AP60

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stating the dismissal was improper is therefore void. As such, the court did not 

erroneously exercise its discretion by declining to grant Fischer relief under WIS.

STAT. § 806.07(1)(d).

¶19 Fischer has also failed to show that she was entitled to relief under 

WIS. STAT. § 806.07(1)(h). “A litigant must raise an issue with sufficient 

prominence such that the [circuit] court understands that it is being called upon to 

make a ruling.” Bishop v. City of Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d 

879, 631 N.W.2d 656. As noted above, Fischer did not specifically cite 

para. (1)(h) in her motion for relief from the circuit court’s prior order. In 

addition, none of the allegations in her motion would have reasonably informed 

the court that she was seeking relief under that paragraph. Under these 

circumstances, Fischer cannot now complain that the court erred by failing to 

grant her relief under para. (1)(h).

¶20 Moreover, Fischer has failed to develop any argument—either in the 

circuit court or on appeal—as to why WIS. STAT. § 806.07(1)(h) is applicable in 

this case. A court appropriately grants relief under § 806.07(1)(h) “when

extraordinary circumstances are present justifying relief in the interest of justice.” 

Miller v. Hanover Ins. Co., 2010 WI 75, ¶35, 326 Wis. 2d 640, 785 N.W.2d 493. 

Extraordinary circumstances exist where the sanctity of the final judgment is 

outweighed by “the incessant command of the court’s conscience that justice be 

done in light of all the facts.” Id. (citation and emphasis omitted). The party 

seeking relief bears the burden to prove that extraordinary circumstances are 

present. Id., ¶34. Fischer’s § 806.07 motion did not identify any extraordinary 

circumstances warranting relief from the circuit court’s prior order, nor has she 

identified such extraordinary circumstances on appeal.
No. 2020AP60

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¶21 We also observe that a motion for relief under WIS. STAT.

§ 806.07(1)(h) must be made “within a reasonable time.” See § 806.07(2). The 

circuit court implicitly determined that Fischer’s § 806.07 motion was not filed 

within a reasonable time, as Fischer had failed to show “why it took five months to 

bring the motion.” On appeal, Fischer asserts that her motion was timely because 

it was filed within one year of the circuit court’s underlying decision, but she cites 

no legal authority in support of that proposition. Section 806.07(2) provides that a 

motion filed under para. (1)(a) or (1)(c) must be filed “not more than one year 

after the judgment was entered or the order or stipulation was made.” However, 

the legislature’s decision to require that motions under paras. (1)(a) and (1)(c) be 

filed within one year of the underlying decision does not compel a conclusion that 

a motion under para. (1)(h) is necessarily timely if filed within one year. Fischer 

does not explain why, under the circumstances of this case, the circuit court 

erroneously exercised its discretion by determining that her § 806.07 motion was 

untimely.4

¶22 Finally, Fischer argues that she should not have been required to pay 

for the preparation of a transcript of the refusal hearing. Fischer has not shown, 

however, that she properly preserved that issue for appeal. Issues raised for the 

first time on appeal are generally deemed forfeited. Tatera v. FMC Corp., 2010 

WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810. “The burden is upon the 

party alleging error to establish by reference to the record that an error was 

 

4

 Our discussion of the “reasonable time” requirement in WIS. STAT. § 806.07(2) applies 

only to the extent that Fischer sought relief under § 806.07(1)(h). As the City correctly concedes, 

the “reasonable time” requirement does not apply to motions to vacate void judgments filed under 

§ 806.07(1)(d). See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶34, 273 Wis. 2d 76, 681 

N.W.2d 190. We have already concluded for other reasons, however, that the circuit court did 

not erroneously exercise its discretion by declining to grant Fischer relief under § 806.07(1)(d).
No. 2020AP60

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specifically called to the attention of the [circuit] court.” Terpstra v. Soiltest, Inc., 

63 Wis. 2d 585, 594, 218 N.W.2d 129 (1974).

¶23 Here, while Fischer asserts that she “did raise an objection to the 

transcript being created when the transcript was only for the refusal which was 

dismissed and not appealed,” she does not cite any portion of the appellate record 

in support of that assertion. In addition, we clarified in our February 26, 2020 

order that the scope of this appeal was limited to whether the circuit court properly 

denied Fischer’s WIS. STAT. § 806.07 motion. Fischer’s § 806.07 motion did not 

raise any argument regarding improper payment of transcript fees. We therefore 

decline to address that issue.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE 

809.23(1)(b)4.