Opinion
111,906.
07-24-2015
In re Determination of Validity of Conviction in DODGE CITY MUNICIPAL COURT CASE NO. 11–177671A.
Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant Yesenia Estrada. Bradley C. Ralph, of Williams, Malone & Ralph, PA., of Dodge City, for appellee City of Dodge City, Kansas.
Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant Yesenia Estrada.
Bradley C. Ralph, of Williams, Malone & Ralph, PA., of Dodge City, for appellee City of Dodge City, Kansas.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Yesenia Estrada filed a declaratory judgment action against the City of Dodge City asking the Ford County District Court to find her municipal court conviction for driving under the influence to be invalid more than 2 years after she pleaded no contest to and was sentenced for that offense. The district court dismissed this civil action as an improper collateral attack on a final judgment in a criminal prosecution. We agree and affirm.
Estrada entered her plea to and was sentenced on the DUI charge in Dodge City Municipal Court on December 6, 2011. She did not appeal the conviction to the district court and apparently has not sought to withdraw her plea or to otherwise pursue any sort of relief in the municipal court case itself. On January 9, 2014, Estrada filed this declaratory judgment action to have the district court declare the municipal court conviction void and to refund the fine imposed on her and the costs assessed against her.
Estrada asked the district court to find that the municipal court judge lacked jurisdiction to take her plea and to sentence her on the DUI because a municipal court prosecutor was not physically present. Based on K.S.A. 12–4110, Estrada contends a municipal court prosecutor must appear on the record at any plea. The statute, in full, states: “The city attorney, in person or by assistants, shall prosecute all causes in the municipal court.” K.S.A. 12–4110. Estrada argues the absence of a municipal court prosecutor creates a jurisdictional defect in her prosecution. We do not pass on the efficacy of Estrada's statutory argument, although her challenge would seem to go to the validity of her plea rather than the subject-matter jurisdiction of the municipal court.
We must address the more basic issue of whether the Kansas Declaratory Judgment Act, K.S.A. 60–1701 et seq. , provides a legal avenue to challenge the sufficiency of a criminal conviction. The district court correctly ruled that the Act does not. Another panel of this court has held that a declaratory judgment action may not be “used as a device to launch a collateral attack on a criminal or traffic conviction.” Theisman v. City of Overland Park, No. 104,193, 2011 WL 2637452, at *1 (Kan.App.2011) (unpublished opinion). The reasoning and authority in Theisman is persuasive. The court recognized:
“Courts routinely reject declaratory actions as devices to address existing convictions. Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir.1966) (A federal declaratory judgment action will not lie as ‘a substitute for appeal or post conviction remedies.’); Carroll v. Sisco, No. 4:00–CV–864, 2010 WL 1006658, *10 (E.D.Mo.2010) (unpublished opinion) (‘Plaintiff is not entitled to challenge his conviction by means of a declaratory judgment action.’). That is really just a particularized application of the rule prohibiting use of a declaratory action to attack a final judgment. Defendants may bring direct appeals in criminal cases and, later, collateral attacks raising constitutional issues as means to redress erroneous convictions. Here, Theisman and Westgate did neither. They suggest no compelling reason why they should be excused from their failure to take advantage of the customary avenues of relief in criminal or traffic prosecutions. See Shannon, 365 F.2d at 829 ; Carroll, 2010 WL 1006658, at *10.” 2011 WL 2637452, at *4.
We follow that path and conclude Estrada, like the plaintiffs in Theisman, cannot deploy a civil declaratory judgment action to upend a final judgment entered against her in a criminal prosecution. That Estrada has characterized her challenge to the municipal court conviction as jurisdictional doesn't somehow make an independent civil proceeding under the Declaratory Judgment Action an appropriate device for asserting the challenge. To be sure, a party may at any time launch an attack on the subject matter jurisdiction of a particular court to render a judgment, see State v. Sales, 290 Kan. 130, Syl. ¶ 3, 224 P.3d 546 (2010), but the attack should be made in the case in which the judgment was rendered—not through a new declaratory judgment action, see Mitchell v. Commission on Adult Entertainment Establishments, 12 F.3d 406, 408–09 (3d Cir.1993) (“a collateral attack based on the want of subject matter jurisdiction is barred”); Bank of Montreal v. Olafsson, 648 F.2d 1078, 1079–80 (6th Cir.1981) (party permitted to file motion under Fed.R.Civ.P. 60 [b] to set aside default judgment on grounds district court lacked subject matter jurisdiction); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2 (9th Cir.1988) (“It is elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at anytime by one of the parties, by motion ... or sua sponte by the trial or reviewing court.”). Even assuming Estrada's underlying argument goes to the municipal court's jurisdiction, the argument should be presented to the municipal court in the first instance.
The district court properly held Estrada could not bring a declaratory judgment action to void her municipal court conviction.
Affirmed.