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Court Error – Fee Waiver

By: Derek Hawkins//June 15, 2020//

Court Error – Fee Waiver

By: Derek Hawkins//June 15, 2020//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Chase M.A. Boruch

Case No.: 2018AP152

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Fee Waiver

Chase Boruch, pro se, appeals an order denying his motion to waive the fees associated with the preparation of certain transcripts he requested to facilitate an appeal of an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2017-18). He contends the circuit court erred by concluding that his § 974.06 motion lacked arguable merit, and therefore denying his transcript fee waiver request pursuant to our supreme court’s decision in State ex rel. Girouard v. Circuit Court for Jackson Cty., 155 Wis. 2d 148, 151, 454 N.W.2d 792 (1990).

The State concedes that to the extent the circuit court applied an “arguable merit” test to Boruch’s transcript fee waiver request, the court erred. The State argues, however, that the court nevertheless properly denied Boruch’s request because Boruch’s WIS. STAT. § 974.06 motion does not pass the proper test—that is, whether it stated a claim upon which relief could be granted.

We agree with the State that an amendment to the statute from which the Girouard court derived its “arguable merit” test, WIS. STAT. § 814.29(1)(c), has clarified the proper test for determining whether an indigent party is entitled to the waiver of a transcript fee. The proper test now is whether the party’s proposed action states a claim upon which relief may be granted. We also agree with the State that, for the reasons explained below, Boruch’s WIS. STAT. § 974.06 motion failed to pass this test. We therefore affirm the order denying Boruch’s request for a waiver of his transcript fee, albeit on different grounds than those relied upon by the circuit court. See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (2010) (court of appeals may affirm a circuit court’s decision on different grounds).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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