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Jury fees imposed on state

What the court held

Case: Flottmeyer v. Circuit Court for Monroe County, No. 2006AP139

Issue: Can a court impose jury fees against the State pursuant to sec. 814.51, when it cancels a jury trial less than two days before trial?

Holding: Yes. The statute applies to both defendants and plaintiffs, in both civil and criminal cases.

Attorneys: For Appellant: Flottmeyer, Amy M., Sparta; For Respondent: Rice, David C., Madison.

The state can be sanctioned pursuant to sec. 814.51, if it cancels a jury trial less than two days before trial, the Wisconsin Court of Appeals held on Feb. 15.

The state was prosecuting a domestic violence case in Monroe County, and trial was set for Nov. 30, 2005. Two to three weeks before the date, the prosecutor was in-formed that the victim had moved to Chicago, but that she intended to appear at trial. In addition, the witness’ subpoena had been returned.

On the afternoon of Nov. 28, the prosecutor was in-formed that the witness had called the district attorney’s office and said she would not appear.

The same afternoon, the prosecutor in-formed the circuit court.

On Nov. 30, following a hearing, Circuit Court Judge Steven L. Abbott assessed jury fees of $250 against the state, pursuant to sec. 814.51, for canceling the trial.

The state appealed, but the court of appeals affirmed in a decision by Judge Paul Lundsten.

The court set forth the relevant portion of sec. 814.51 as follows: “The court shall have discretionary authority in any civil or criminal action or proceeding … to assess … juror fees … against either the plaintiff or defendant … if a jury demand … is … withdrawn within 2 business days prior to … the commencement of the trial.”

The state argued that, pursuant to Martineau v. State Conservation Comm’n., 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972), costs may not be taxed against the state unless expressly authorized by statute, and that sec. 814.51 was not an express authorization

The generic terms “plaintiff” and “defendant,” the state contended, is insufficient to constitute express authorization against it.

However, the court disagreed, holding that a statute need not use the word “State” or any comparable express reference to satisfy the Martineau rule.

The court noted that the statute refers to “any civil or criminal action.” Later, it refers to assessing costs against “either the plaintiff or defendant.”

Since the state is the plaintiff in all criminal cases, the court concluded that the only reasonable reading of the statute is that the circuit court can tax jury fees against the state.

The court reasoned, “If the State were not the ‘plaintiff’ in criminal cases for purposes of sec. 814.51, the statute’s provision that the circuit court may assess jury fees against either party in a criminal case would be rendered a nullity (emphasis in original)(footnote omitted).”

Having decided that the circuit court had authority to impose the jury fees, the court next held that it properly exercised its discretion in doing so.

The circuit court had stated that the prosecutor was not personally at fault, and that the victim deserved the blame for the cancellation.

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However, the court of appeals rejected the State’s argument that these acknowledgements rendered the sanction unreasonable.

The circuit court had found that the district attorney’s office could have done more, by looking into the matter earlier.

The court of appeals thus concluded, “read in context, the circuit court was not saying the State was free of blame, only that the prosecutor was not individually at fault. The court made clear its view that the district attorney’s office, prior to the two-day statutory deadline, could have done more to determine the willingness and ability of witnesses to appear.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.

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