Substitution of municipal judge. 800.05(1)
In cases specified in s. 800.02 (1)
, a person charged with a violation may file a written request for a substitution of a new judge for the municipal judge assigned to the trial of that case. The written request shall be filed not later than 7 days after the initial appearance in person or by an attorney. The municipal judge against whom a request has been filed may set initial bail and accept a plea of not guilty.
Except as provided in sub. (4)
, no person may file more than one such written request in any one action.
In municipal court, upon receipt of the written request, the original judge shall have no further jurisdiction in the case except as provided in sub. (1)
and except to determine if the request was made timely and in proper form. If no determination is made within 7 days, the court shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the case shall be transferred as provided in s. 751.03 (2)
. Upon transfer, the municipal judge shall transmit to the appropriate court all the papers in the action and the action shall proceed as if it had been commenced in that court.
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order in a manner such that further proceedings in the municipal court are necessary, the person charged with a violation may file a request under sub. (1)
within 20 days after the entry of the judgment or decision of the appellate court whether or not another request was filed prior to the time the appeal or writ of error was taken.
History: 1977 c. 305
; 1977 c. 449
; 1979 c. 32
, 92 (17)
; Stats. 1979 s. 800.05; 1987 a. 151
Judicial Council Committee's Note, 1977: This section sets out the procedures to be used when a defendant requests a substitution of a new judge in an ordinance violation case. The request must be made not later than 7 days after the initial appearance in the case by the defendant.
The section also provides that the same administrative procedure for assignment of judges in courts of record when a request for substitution has been made will also be used in assigning a municipal judge to replace a municipal judge for whom a request for substitution has been made. [Bill 1240-A]
Sub. (3) did not authorize the chief judge of a judicial district to issue a rule providing that when a case is transferred on substitution, the receiving court is entitled to the forfeitures and that the receiving court's prosecutors try the case. City of West Allis v. Sheedy, 211 Wis. 2d 92
, 564 N.W.2d 708
Illness, absence or vacancy; pending actions triable by court which receives papers; continuance on vacancy and notice of trial. 800.06(1)
If any municipal judge is to be temporarily absent or is sick or disabled, the municipal judge may deliver the court record and all papers relating to any pending action to the circuit court of the county and the circuit court may try the action and enter judgment as though the action was begun before that court or the municipal judge may by written order, filed in the court and with the approval of the chief judge of the judicial administrative district, do one of the following:
If the municipal judge is from the 1st judicial administrative district, designate another municipal judge from any municipality within the state to perform his or her duties for a period not to exceed 30 days.
If the municipal judge is from a judicial administrative district other than the 1st judicial administrative district, designate another municipal judge within the same judicial administrative district to perform his or her duties for a period not to exceed 30 days.
If any municipal judge is incompetent, unable or fails to act, s. 751.03 (2)
applies. The parties and their attorneys shall be notified of the transfer to another judge or to circuit court prior to trial. The judge designated or the circuit court to which the case is transferred may, while in possession of the court record, issue execution upon or give a certified transcript of any unsatisfied judgment appearing in the record.
Notwithstanding s. 751.03 (2)
, if there is a permanent vacancy in the office of municipal judge, the chief judge of the judicial administrative district may, upon request by the municipal governing body, designate another municipal judge to perform the duties of the office until the municipal governing body fills the vacancy by temporary appointment under s. 8.50 (4) (fm)
. The chief judge of the 1st judicial administrative district may designate a municipal judge under this subsection from any municipality within the state. The chief judge of a judicial administrative district other than the 1st judicial administrative district may designate a municipal judge under this subsection from any municipality within the same judicial administrative district as the chief judge. The municipal judge designated under this subsection may exercise all of the authority of the municipal court to which he or she is assigned.
Judicial Council Committee's Note, 1977: This section governs the procedures to be followed when a municipal judge is temporarily absent from court or is sick or disabled. Another municipal judge may be designated to perform the duties of his or her court for a period not to exceed 30 days.
If a municipal judge is incompetent, unable or fails to act, or if the office of municipal judge is vacant, the provisions of s. 751.03 (5) [(2)] for assignment of another municipal judge to the court applies. [Bill 1240-A]
Temporary reserve judges; service. 800.065(1)
In this section, "temporary reserve judge" means a judge for a municipal court for any municipality within the judicial administrative district appointed by the chief judge of that district to perform such specified duties on a day-by-day basis as the chief judge may direct.
Any of the following persons may serve as a temporary reserve judge:
A person who has served a total of 8 or more years as a municipal judge.
A person who has served 4 or more years as a municipal judge and who was not defeated at the most recent time he or she sought election to judicial office.
Notwithstanding s. 755.04
, temporary reserve judges under this section shall receive compensation in an amount agreed to by contract between the municipality and the temporary reserve judge. The judge may not serve until the contract is entered into and the judge has complied with s. 755.03
All persons serving as temporary reserve judges under this section are subject to s. 755.18
History: 1987 a. 389
Discovery in municipal court.
Neither party is entitled to pretrial discovery, except that if the defendant moves within 30 days after the initial appearance in person or by an attorney and shows cause therefor, the court may order that the defendant be allowed to inspect documents, including lists of names and addresses of witnesses, if available, and to test under s. 804.09
, under such conditions as the court prescribes, any devices used by the plaintiff to determine whether a violation has been committed.
History: 1977 c. 305
; 1979 c. 32
; Stats. 1979 s. 800.07; 1987 a. 389
Judicial Council Committee's Note, 1977: Discovery prior to trial in municipal court in ordinance violation cases is limited to the court ordering, upon cause shown by a party, production of documents, including lists of names of witnesses, under s. 804.09 or the inspection of any devices used by the prosecutor in determining whether an ordinance violation has occurred. [Bill 1240-A]
Procedure at trial. 800.08(1)(1)
In a trial before a municipal court, the municipality may provide a prosecutor who is an attorney authorized or licensed to practice law in this state. The municipality shall first offer evidence in support of the citation or complaint. The defendant may offer evidence after the municipality has rested. If the municipality and the defendant have offered evidence upon the citation or complaint, the parties may then respectively offer rebuttal testimony only, unless the court permits them to offer evidence upon their original case. Both parties shall have the opportunity to question all witnesses.
Before testifying in a municipal court, every witness shall be required to declare that he or she will testify truthfully, by oath or affirmation administered in a form calculated to awaken his or her conscience and impress the witness with the duty to testify truthfully.
The oath may be administered by the municipal judge or his or her designee substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God.
Every person who declares that he or she has conscientious scruples against taking the oath, or swearing in the usual form, shall make a solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalties of perjury.
The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
The standard of proof for conviction of any person charged with violation of any municipal ordinance, bylaw or resolution specified in s. 800.02 (1)
shall be evidence that is clear, satisfactory and convincing.
History: 1977 c. 305
; 1979 c. 32
, 92 (17)
; Stats. 1979 s. 800.08; 1997 a. 205
Judicial Council Committee's Note, 1977: This section sets out the procedure to be followed at trial before a municipal court in ordinance violation cases.
Sub. (1) states the order of presentation of evidence. After the municipality offers evidence in support of the violation, the defendant may present evidence. After each side has offered evidence upon the violation, only rebuttal testimony is allowed unless the court permits otherwise.
Every witness testifying in a municipal court must be sworn. Subsection (2) sets out the method of swearing a witness.
Sub. (3) states that the standard of proof for conviction in a municipal court shall be evidence that is clear, satisfying and convincing.
Sub. (4) states that the Wisconsin Rules of Evidence, chs. 901 to 911, shall apply in municipal court. [Bill 1240-A]
Judgment; failure to appear; plea of guilty. 800.09(1)(1)
If a municipal court finds a defendant guilty it may render judgment by ordering restitution under s. 800.093
and payment of a forfeiture, the penalty assessment imposed by s. 757.05
, the jail assessment imposed by s. 302.46 (1)
, the crime laboratories and drug law enforcement assessment imposed by s. 165.755
, any applicable consumer protection assessment imposed by s. 100.261
, and any applicable domestic abuse assessment imposed by s. 973.055 (1)
plus costs of prosecution, including the fee prescribed in s. 814.65 (1)
. The court shall apply any payment received on a judgment that includes restitution to first satisfy any payment of restitution ordered, then to pay the forfeiture, assessments, and costs. If the judgment is not paid, the court may proceed under par. (a)
, or (c)
or any combination of those paragraphs, as follows:
The court may defer payment of any judgment or provide for installment payments. At the time the judgment is rendered, the court shall inform the defendant, orally and in writing, of the date by which restitution and the payment of the forfeiture, the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment, any applicable consumer protection assessment, and any applicable domestic abuse assessment plus costs must be made, and of the possible consequences of failure to do so in timely fashion, including imprisonment, as provided in s. 800.095
, or suspension of the defendant's motor vehicle operating privilege, as provided in par. (c)
, if applicable. If the defendant is not present, the court shall ensure that the information is sent to the defendant by mail. In 1st class cities, all of the written information required by this paragraph shall be printed in English and Spanish and provided to each defendant.
If the defendant agrees to perform community service work in lieu of making restitution or paying the forfeiture, assessments and costs, or both, the court may order that the defendant perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the defendant to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the forfeiture by the minimum wage established under ch. 104
for adults in nonagriculture, nontipped employment. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
The court may suspend the defendant's operating privilege, as defined in s. 340.01 (40)
, until restitution is made and the forfeiture, assessments and costs are paid, if the defendant has not done so within 60 days after the date the restitution or payments or both are to be made under par. (a)
and has not notified the court that he or she is unable to comply with the judgment, as provided under s. 800.095 (4) (a)
, except that the suspension period may not exceed 2 years. The court shall take possession of the suspended license and shall forward the license, along with a notice of the suspension clearly stating that the suspension is for failure to comply with a judgment of the court, to the department of transportation. This paragraph does not apply if the forfeiture is assessed for violation of an ordinance that is unrelated to the violator's operation of a motor vehicle.
(2) Judgment on plea of guilty or no contest or on failure to appear. 800.09(2)(a)(a)
If the defendant pleads guilty or no contest, the court shall convict the defendant of the offense charged and render judgment.
If the person charged fails to appear personally or by an attorney at the time fixed for hearing of the case, the defendant may be deemed to have entered a plea of no contest and the money deposited, if any, or such portion thereof as the court determines to be an adequate penalty, plus the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment, any applicable consumer protection assessment, and any applicable domestic abuse assessment plus costs, including the fee prescribed in s. 814.65 (1)
, may be declared forfeited by the court or may be ordered applied upon the payment of any penalty which may be imposed, together with the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment, any applicable consumer protection assessment, and any applicable domestic abuse assessment plus costs. If the court finds that the violation meets the conditions in s. 800.093 (1)
, the court may summon the alleged violator into court to determine if restitution shall be ordered under s. 800.093
. Any money remaining after payment of any penalties, assessments, costs, and restitution shall be refunded to the person who made the deposit.
This subsection shall not apply to violations of parking ordinances. Bail given for appearance to answer a charge under any such ordinance may be forfeited as determined by the municipality.
Judicial Council Committee's Note, 1977: Sub. (1) governs the procedure for rendering judgment upon a finding of guilty of a defendant. A court may allow the defendant up to 60 days to pay a judgment. Failure to pay a judgment exposes a person to possible commitment to a jail or house of correction for not more than 90 days. If a defendant is indigent and unable to pay the forfeiture, the defendant cannot be imprisoned for nonpayment. The defendant must demonstrate that his or her inability to pay the fine is a result of indigency and must be afforded a hearing to determine his or her ability to pay the fine. See State ex rel. Pedersen v. Blessinger, (1972) 56 Wis. 2d 286
, 201 N.W.2d 778
Sub. (2) provides that a municipal judge shall convict a defendant of the violation for which he or she is charged if the defendant pleads either guilty or no contest. If the defendant fails to appear at the time that the offense is to be heard by a municipal judge, the judge may deem the defendant to have entered a plea of no contest and then determine the appropriate penalty. Payment for the forfeiture and penalty assessment may be secured from any deposit made by the defendant. Any money remaining from a deposit after payment of the forfeiture, penalty assessment and costs shall then be refunded to the person making the deposit. [Bill 1240-A]
Section 343.30 (5) does not preclude the suspension of operating privileges under s. 800.09 or 800.095. Suspension of operating privileges for failure to pay non-traffic forfeitures is not an unconstitutional exercise of the police power or an unconstitutionally excessive fine. City of Milwaukee v. Kilgore, 193 Wis. 2d 168
, 532 N.W.2d 690
An award of costs of prosecution does not include actual attorney fees. Town of Wayne v. Bishop, 210 Wis. 2d 219
, 565 N.W.2d 201
(Ct. App. 1997).
A municipal court is not authorized to subpoena persons outside of the state; thus the court cannot order an out of state defendant to appear in person. There is no inherent authority in the court authorizing such an order. City of Sun Prairie v. Davis, 226 Wis. 2d 738
, 595 N.W.2d 635
The municipal court, in addition to ordering any payment authorized by law, may order a defendant to make full or partial restitution to any victim or, if the victim is deceased, to his or her estate if the court finds all of the following:
The defendant is guilty of violating an ordinance that prohibits conduct that is the same as or similar to conduct prohibited by state statute punishable by fine or imprisonment or both.
The violation resulted in damage to the property of or physical injury to a person other than the defendant.
Restitution ordered under this section is enforceable in a civil action by the victim named in the order to receive restitution. A court may not order a defendant to pay more than $4,000 in restitution under this section. This $4,000 limit does not apply to restitution ordered for violation of an ordinance that prohibits conduct that is the same as or similar to the conduct prohibited by s. 943.24
If the violation resulted in damage to or loss or destruction of property, the restitution order may require that the defendant do one of the following:
Return the property to the owner or owner's designee.
If return of the property under par. (a)
is impossible, impractical or inadequate, pay the owner or owner's designee, subject to the $4,000 limit in sub. (2)
, the reasonable repair or replacement cost or the greater of the following:
The value of the property on the date of its damage, loss or destruction.
The value of the property on the date judgment is rendered, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
If the violation resulted in physical injury, the restitution order may require that the defendant do one or more of the following, subject to the $4,000 limit in sub. (2)
Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric or psychological care and treatment.
Reimburse the injured person for income lost as a result of the violation.
If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to reimburse the person for any payments made to another to perform those duties from the date of the injury and to ensure that the duties are continued until the person is able to resume performance of the duties.
The restitution order may require that the defendant do one or more of the following, subject to the $4,000 limit in sub. (2)
Pay all special damages, but not general damages, including, but without limitation because of enumeration, the money equivalent of loss resulting from property taken, destroyed, broken or otherwise harmed and out-of-pocket losses, such as medical expenses, substantiated by evidence in the record, that could be recovered in a civil action against the defendant for his or her conduct in the commission of the violation.
Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom the violation was committed as a result of the commencement of the action or of cooperating in the investigation and prosecution of the violation.
If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.
If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be made. The court shall order that all restitution to victims be made before restitution to other persons. If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the court shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.
Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The fact that restitution was required or made is not admissible as evidence in that civil action and has no legal effect on the merits of the civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events that were the basis for the restitution. The court trying that civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
The amount of loss suffered by any victim as a result of the violation.
The present and future earning ability of the defendant.
The needs and earning ability of the defendant's dependents.
If the court finds that the conditions in sub. (1)
are met, the court may hold the restitution hearing at the time of any appearance by the defendant before the court or may summon the defendant to appear to determine if restitution shall be ordered. The court shall give the victim an opportunity to present evidence and arguments pertaining to the factor specified in par. (a) 1.
The court shall give the defendant the opportunity to present evidence and arguments on the factors specified in par. (a)
. The victim has the burden of demonstrating by the preponderance of the evidence the amount of loss sustained as a result of the violation. The defendant has the burden of demonstrating by the preponderance of the evidence the factors specified in par. (a) 2.
When hearing evidence as to the factors specified in par. (a)
, the court may waive the rules of practice, procedure, pleading and evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person.
History: 1991 a. 40
; 1995 a. 156
Nonpayment of judgment or noncompliance with work order; further proceedings.