Jury Fees Case Analysis

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The court’s interpretation of sec. 814.51 is contrary to the plain language of the statute, something the court freely acknowledges in a footnote.

The statute provides that a court may impose jury fees, “if a jury demand has been made in any case and if a jury demand is later withdrawn within 2 business days prior to the time set by the court for the commencement of the trial (emphasis added).”

In footnote 6 of the opinion, the court wrote: “We note that Wis. Stat. sec. 814.51 requires that ‘a jury demand has been made … and … is later withdrawn.’ Thus, the state might have argued that it did not make or withdraw a jury demand because the state does not make or withdraw jury demands in criminal cases. Such an argument, however, would seem foreclosed by Foster, 100 Wis. 2d 103, which broadly construes the statute’s requirement that a jury demand be ‘made’ and ‘later withdrawn.’ Specifically, the Foster court said that the statute authorizes the circuit court to assess jury fees ‘when a jury trial date has been established and the parties have failed to give the court reasonable notice of a cancellation of the jury proceeding.’ Id. at 108.”

The court is correct in its reading of the statute — the state obviously cannot withdraw a demand it never made in the first place.

The question is whether, as the court assumes, the Supreme Court’s decision in State v. Foster, 100 Wis.2d 103, 301 N.W.2d 192 (1981), really does foreclose a plain meaning interpretation of the statute.

A good case can be made that it does not.

The issue in Foster was far removed from that in the case at bar. The court wrote, “This review presents the single issue of whether the criminal costs statute, sec. 973.06, bars the assessment of jury fees against a criminal defendant pursuant to sec. 814.51.” Foster, 301 N.W.2d at 194.

The court then proceeded to engage in a lengthy discussion of the difference between statutory “costs” and actual litigation “expenses.”

The court then states, “The jury cost assessment under sec. 814.51, Stats., is not an authorization to levy a taxable cost against a litigant. The statute authorizes a trial court to assess against a party or parties the cost of one day’s jury fees when a jury trial date has been established and the parties have failed to give the court reasonable notice of a cancellation of the jury proceeding.” Id., at 195.

However general this statement may be, there is no reason to interpret it as requiring that the statute be interpreted contrary to its plain meaning on a remote issue that the court in Foster was not even considering.

Nor would a plain meaning interpretation render any portion of the statute a nullity, even though the statute applies to both plaintiffs and defendants in both civil and criminal actions.

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Even if the defendant waives his right to a jury trial, the state can still insist on a jury. State v. Cook, 141 Wis.2d 42, 413 N.W.2d 647 (Ct.App.1987). Thus, if a defendant waives a jury, but the state demands one, and then is unprepared for trial, jury fees could be imposed against the state, because the state demanded the jury, and then withdrew the demand.

Similarly, even if both the defendant and the state waive a jury trial, the court can refuse the waivers and empanel a jury anyway. State v. Burks, 268 Wis.2d 747, 674 N.W.2d 640 (Ct.App.2003). If that happened, and either party was unprepared for trial, then that party could not be assessed fees, because neither party demanded the jury in the first place.

Apparently, in the case at bar, the state did not make its strongest argument — that it cannot withdraw a demand it never made, and thus the statute does not apply to it in this case. Instead, the State argued it was immune from the statute altogether.

Future prosecutors should preserve the former, stronger argument for potential review in the Supreme Court.

The witness in the case at bar will certainly not be the last to either not show up for trial, or to notify the prosecutor at the last minute of intent not to appear. The state should not feel obligated to pay these costs when the plain language of the statute does not require it to.

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David Ziemer can be reached by email.