“Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
“Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employees.
“State agency" does not include the citizens utility board.
“Substantially justified" means having a reasonable basis in law and fact.
Except as provided in s. 814.25
, if an individual, a small nonprofit corporation or a small business is the prevailing party in any action by a state agency or in any proceeding for judicial review under s. 227.485 (6)
and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
In determining the prevailing party in actions in which more than one issue is contested, the court shall take into account the relative importance of each issue. The court shall provide for partial awards of costs under this section based on determinations made under this subsection.
If the court awards costs under sub. (3)
, the costs shall include all of the following which are applicable:
The reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the case and reasonable attorney or agent fees. The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that:
No expert witness may be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency which is the losing party.
Attorney or agent fees may not be awarded in excess of $150 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents, justifies a higher fee.
A party seeking an award under this section shall, within 30 days after final judgment in the action, submit to the clerk under s. 814.10 (1)
an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. Section 814.10
applies for the procedure for taxation of costs, except that the clerk shall allow the state agency 15 working days to respond under s. 814.10 (3)
The court acting under s. 814.10 (4)
may reduce the amount awarded under this section or deny an award if it finds that the prevailing party engaged in conduct which unduly and unreasonably delayed the action.
An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the action. This subsection applies whether the person files the tax return individually or in combination with a spouse.
If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under s. 20.865 (1) (a)
Each state agency that is ordered to pay costs under this section or that recovers costs under sub. (11)
shall report annually, as soon as is practicable after June 30, to the presiding officer of each house of the legislature the number, nature and amounts awarded, the claims involved in the action in which the costs were incurred, the costs recovered under sub. (11)
and any other relevant information to aid the legislature in evaluating the effect of this section.
If the court finds that the motion under sub. (3)
is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the court must find one or more of the following:
The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
The party or the party's attorney knew, or should have known, that the motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
A petitioner must receive at least some requested relief in order to “prevail" under sub. (3). Kitsemble v. DHSS, 143 Wis. 2d 863
, 422 N.W.2d 896
(Ct. App. 1988).
A circuit court retains jurisdiction to assess costs under sub. (3) when it remands a decision to any agency for further proceedings. The 30-day period in sub. (6) commences at the time that the matter is disposed of in favor of the party on the remand. Sheely v. DHSS, 150 Wis. 2d 320
, 442 N.W.2d 1
In order for a state agency's position to be “substantially justified" under sub. (3), it must have a reasonable basis in truth and in law and there must be a reasonable connection between the facts alleged and the legal theory advanced. An agency's failure to provide required written notice in terminating medical assistance benefits did not have a reasonable basis in law. Stern v. DHFS, 212 Wis. 2d 393
, 569 N.W.2d 79
(Ct. App. 1997), 96-2381
The appropriate base for a cost of living adjustment to the award of attorney fees under sub. (5) (a) 2. is November, 1985, the date of enactment of the statute. Stern v. DHFS, 222 Wis. 2d 521
, 588 N.W.2d 658
(Ct. App. 1998), 98-1493
Unlike its federal counterpart, sub. (3) only provides for attorney fees in actions by state agencies, not actions brought by the State of Wisconsin. The legislature was guided by the federal act when enacting this section. If the legislature intended for this section to apply to actions brought by or against the State of Wisconsin, similar to the federal act applying to the United States, it could have done so, and plainly did not. This case was a forfeiture action that s. 778.02 requires be brought in the name of the State of Wisconsin. Thus, this case was not an action by a state agency. State v. Detert-Moriarty, 2017 WI App 2
, 373 Wis. 2d 227
, 890 N.W.2d 588
Costs in actions by prisoners. 814.25(2)(a)(a)
Except as provided in par. (b)
, if a prisoner brings an action or special proceeding related to prison or jail conditions, no costs may be allowed against the state, a state agency or a county, city, village or town, or against any individual defendant when sued in an official capacity.
Costs are allowable to a prisoner who obtains prospective injunctive relief against an individual defendant when that defendant is sued in an official capacity and to a prisoner who obtains a judgment against a defendant when that defendant is sued in his or her personal capacity. This paragraph does not apply to actions or special proceedings related to prison or jail conditions that seek a remedy available by certiorari.
If the prevailing party is the state, a state agency or a county, city, village or town or an individual in any action or special proceeding commenced by a prisoner related to prison or jail conditions, the prisoner shall pay the full costs allowed under this chapter. The prisoner shall be required to pay the costs out of any trust fund accounts that he or she holds in the same manner as payment is required for court fees under s. 814.29 (1m) (e)
History: 1997 a. 133
This section does not violate a prisoner's rights to equal protection of the laws. There is more than one rational basis supporting the legislative creation of different classifications to be considered when costs and fees are awarded. Harr v. Berge, 2004 WI App 105
, 273 Wis. 2d 481
, 681 N.W.2d 282
Security for costs.
Except as provided in s. 655.27 (5) (a) 3.
, in all cases where it shall appear reasonable and proper the court may require the plaintiff to give sufficient security for such costs as may be awarded against the plaintiff.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.27; 1983 a. 158
; 1993 a. 486
Security for costs. 814.28(1)(1)
Defendant may require.
Except as otherwise provided by s. 814.29
, the defendant may require the plaintiffs to file security for costs if the plaintiffs are all nonresidents; or are foreign corporations, nonresident personal representatives, guardians, trustees, or receivers; or are trustees or assignees of any debtor; or are imprisoned for crime for terms less than life; or shall take issue upon the answer of the garnishee.
(2) Order for security.
Upon proof by affidavit entitling the defendant to security for costs, the court shall order the plaintiffs to file security for costs in a sum mentioned in the affidavit, not less than $250, within 20 days after the service upon the plaintiffs of a copy of the order requiring the security for costs, and that all proceedings on the part of the plaintiffs be stayed until security is filed.
(3) Security, how given.
Within the time required the plaintiffs shall file with the clerk of the court, and give the defendant notice thereof, an undertaking with sureties, each of whom shall justify, by affidavit, in the sum stated in the undertaking, above liabilities and exemptions, in property in this state, conditioned to pay on demand all costs that may be awarded to the defendant in such action in any court, not exceeding the sum mentioned in such order. Upon failure to file such undertaking the court may, upon motion of the defendant, dismiss the action.
(4) Deposit in lieu of undertaking.
The plaintiffs in lieu of an undertaking under sub. (3)
may deposit with the clerk of the court, who shall give a receipt therefor, money equal to the amount specified in the order for security, and give notice of the deposit.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.28; 1997 a. 254
; 1999 a. 85
; 2001 a. 102
Security for costs, service and fees for indigents. 814.29(1)(a)
Except as provided in sub. (1m)
, any person may commence, prosecute or defend any action or special proceeding in any court, or any writ of error or appeal therein, without being required to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding, or any writ of error or appeal therein, or to give security for those costs.
A person seeking an order under par. (a)
shall file in the court an affidavit in the form prescribed by the judicial conference, setting forth briefly the nature of the cause, defense or appeal and facts demonstrating his or her poverty.
The finding and order of the court under par. (a)
shall be in the form prescribed by the judicial conference. The court may deny the request for an order if the court finds that the affidavit states no claim, defense or appeal upon which the court may grant relief.
The court shall make a finding of poverty and issue an order under par. (a)
if the affidavit demonstrates any of the following:
That the person is a recipient of means-tested public assistance, including aid to families with dependent children, relief funded by a relief block grant under ch. 49
, relief provided by counties under s. 59.53 (21)
, medical assistance, supplemental security income, food stamps or benefits received by veterans under s. 45.40 (1m)
or under 38 USC 1501
That the person is represented by an attorney through a legal services program for indigent persons, including, without limitation, those funded by the federal legal services corporation, the state public defender or volunteer attorney programs based on indigency.
That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal or to give security for those costs. In determining the person's ability under this subdivision to pay or give security for fees and costs, the court shall consider the person's household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC 9902
If a prisoner makes a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs, the prisoner shall submit all of the following:
A certified copy of the trust fund account statement for the prisoner for the 6-month period immediately preceding the filing of the request for leave to commence or defend an action, special proceeding, writ of error or appeal, or for the period that the prisoner was incarcerated, imprisoned or detained, if that period is less than 6 months. The trust fund account statement must be obtained from the appropriate official at each facility in which the prisoner is or was incarcerated, imprisoned, confined or detained. “Trust fund account statement" includes accounts accessible to the prisoner before or upon release.
Except when dismissal is required under s. 801.02 (7) (d)
, the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without the prepayment of fees or costs or without being required to give security for costs if all of the following conditions are met:
The court determines that the prisoner does not have assets or other means by which to pay the fees or costs or to give security for the costs after reviewing the information provided under par. (b)
The prisoner authorizes in writing the agency having custody of the prisoner's prison trust fund account to forward payments from the prisoner's account to the clerk of court each time the amount in the account exceeds $10 until the fees or costs are paid in full.
If the court determines that the prisoner who made the affidavit does have assets in a trust fund account, whether accessible to the prisoner only upon release or before release, the court shall order an initial partial filing fee to be paid from that trust fund account before allowing the prisoner to commence or defend an action, special proceeding, writ of error or appeal. The initial filing fee shall be the current balance of the prisoner's trust fund account or the required filing fee, whichever is less.
The agency having custody of the prisoner shall freeze the prisoner's trust fund account until the deposits in that account are sufficient to pay the balance owed for the costs and fees. When the deposits in that account are sufficient to pay the balance owed for the court costs and fees, the agency shall forward that amount to the court. This paragraph does not prohibit the payment from the prisoner's trust fund account of court-ordered payments for child or family support, restitution or federal court fees or for the payments of debts owed to the department of corrections.
If the court believes that a prisoner is in imminent danger of serious physical harm, the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without being required to submit the statement under par. (b)
or prepaying the initial partial filing fee under par. (d)
Except as provided under par. (f)
, if a prisoner files an action, special proceeding, writ of error or appeal under this subsection without complying with the requirements under pars. (b)
, the court shall dismiss the action, special proceeding, writ of error or appeal without prejudice.
The custodian of the trust fund account of a prisoner shall provide the prisoner with the certified copy of the trust fund account statement required under par. (b)
if the custodian determines that the prisoner requires that copy for submittal to a court under this subsection.
The court may dismiss any action or proceeding or may require the payment of, or the giving of security for, costs, fees and service if the court determines that the allegation of poverty is untrue. The court may later require the payment of, or the giving of security for, costs, fees and service if the court determines that the person no longer meets any of the requirements under sub. (1)
A request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent of the affiant and counsel for the affiant that if the judgment is in favor of the affiant the court may order the opposing party to first pay the amount of unpaid fees and costs, including attorney fees under ss. 802.05
, 804.12 (1) (c)
, and 895.044
and under 42 USC 1988
and to pay the balance to the plaintiff.
If the affiant is a prisoner, as defined in s. 801.02 (7) (a) 2.
, or a person confined in a federal correctional institution located in this state, a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent as provided in par. (a)
, and, if the judgment is in favor of the opposing party, constitutes consent for the court to order the institution to deduct the unpaid fees and costs, including attorney fees listed in par. (a)
, from the amount in the inmate's account at any time the account has sufficient money to pay the unpaid fees and costs. This paragraph does not prevent the collection of the unpaid fees and costs by any other method.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.29; 1981 c. 317
; 1983 a. 538
; 1989 a. 31
; Sup. Ct. Order No. 93-15
, 179 Wis. 2d xxxi; 1993 a. 490
; 1995 a. 27
; 1997 a. 133
; Sup. Ct. Order No. 03-06A
, 2005 WI 86, 280 Wis. 2d xiii; 2005 a. 22
; 2009 a. 113
; 2011 a. 2
; 2017 a. 366
Judicial Council Note, 1993: The amendments to sub. (1) are intended to simplify and make more uniform the procedure for determining when costs and fees for indigent persons should be waived by the court. The form of the affidavit and court finding and order is to be prescribed by the Judicial Conference. To simplify the determination of indigency, detailed financial statements are not necessary if the person is receiving means-tested public assistance or legal services based on indigency. Amended sub. (2) allows the court to require payment of fees if it is later shown that the person is no longer indigent.
The trial judge may refuse to approve an affidavit of indigency if the complaint or affidavit to obtain waiver of costs and fees fails to give notice of a claim upon which relief may be granted. State ex rel. Rilla v. Dodge County Circuit Court, 76 Wis. 2d 429
, 251 N.W.2d 476
The bond requirement under s. 775.01 in an action against the state may be waived under s. 814.29 (1). Boldt v. State, 101 Wis. 2d 566
, 305 N.W.2d 133
A judge may waive the fee for a trial transcript at the request of an appealing indigent who has arguable reason to believe that he or she is entitled to redress on appeal. Girouard v. Jackson County Circuit Court, 155 Wis. 2d 148
, 454 N.W.2d 792
In making a Girouard
determination, the trial court should specifically consider the litigant's income and assets, expenses, including unusual expenses, and the projected cost of the transcript requested. State v. Jacobus, 167 Wis. 2d 230
, 481 N.W.2d 642
(Ct. App. 1992).
Whether a proposed petition or complaint states a claim for the purposes of granting fee waiver is determined using the same standard that is applied to motions to dismiss for failure to state a claim under s. 802.06. State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574
, 583 N.W.2d 858
(Ct. App. 1998), 97-3238
The definition of “prisoner" in s. 801.02 (7) (a) 2. does not include a Wisconsin inmate sent to an out-of-state county jail, and therefore sub. (1), and not sub. (1m), applies to the inmate. State ex rel. Speener v. Gudmanson, 2000 WI App 78
, 234 Wis. 2d 461
, 610 N.W.2d 136
The 45-day deadline for filing a certiorari action under s. 893.735 is tolled once the clerk of court receives a petition for a writ of certiorari and, pursuant to sub. (1m), a request for a fee waiver, affidavit of indigency, and certified copy of the prisoner's trust account statement, provided that the prisoner has authorized the prison to make any appropriate payments toward the filing fees from his or her accounts. State ex rel. Steldt v. McCaughtry, 2000 WI App. 176, 238 Wis. 2d 393
, 617 N.W.2d 201
Sub. (1m) survives constitutional scrutiny. Freezing prisoner trust account statements to pay for the costs of civil litigation initiated by the prisoner is a rational means of conserving state resources and deterring frivolous litigation. Lindell v. Litscher, 2003 WI App 36
, 260 Wis. 2d 454
, 659 N.W.2d 413
The phrase “costs and fees" in sub. (1m) includes costs for preparing transcripts. A prisoner may use the funds in a prison release account to pay for the cost of having transcripts prepared. The agency having custody of the prisoner shall follow the procedure under sub. (1m) (e). Akbar v. Kronzer, 2004 WI App 108
, 273 Wis. 2d 749
, 681 N.W.2d 280
Additional security for costs.
If any surety on any undertaking given under s. 814.28
shall remove from the state or be deemed at any time insufficient the court or presiding judge may require the plaintiff to give a new undertaking, and every person becoming surety thereon shall be liable for all costs, from the commencement of the action, in like manner as if the successor surety had been the original surety.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.33; 1993 a. 486
Attorney for plaintiff liable for costs.
In any case in which the defendant, at the time of the commencement of the action, may require security for costs the attorney for the plaintiff shall be liable for such costs not exceeding $100, until security therefor is filed, whether such security shall have been required by the defendant or not; but such attorney is relieved from such liability by filing an undertaking as prescribed by s. 814.28
, and giving notice thereof.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 814.34; 1993 a. 486
Taxation after settlement.
Upon the settlement of an execution by a defendant or upon settling any action or demand the sheriff or attorney claiming any fees which shall not have been taxed shall, upon being required by the defendant and on his or her paying the expenses thereof, have his or her fees taxed by some proper officer authorized to tax costs in the court in which the action may be pending or from which the execution shall have been issued.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.46; 1993 a. 486
Fees not collectible till taxed.
No sheriff, attorney or other person shall collect any fees, after having been required as aforesaid to have the same taxed, without such taxation having been made.