814.24 History
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.24;
1993 a. 246.
814.245
814.245
Actions by state agencies. 814.245(1)
(1) The legislature intends that courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act,
5 USC 504.
814.245(2)(b)
(b) "Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs fewer than 25 full-time employes or which has gross annual sales of less than $2,500,000.
814.245(2)(c)
(c) "Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employes.
814.245(2)(d)
(d) "State agency" does not include the citizens utility board.
814.245(2)(e)
(e) "Substantially justified" means having a reasonable basis in law and fact.
814.245(3)
(3) 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.
814.245(4)
(4) 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.
814.245(5)
(5) If the court awards costs under
sub. (3), the costs shall include all of the following which are applicable:
814.245(5)(a)
(a) 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:
814.245(5)(a)1.
1. 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.
814.245(5)(a)2.
2. Attorney or agent fees may not be awarded in excess of $75 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.
814.245(6)
(6) 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).
814.245(7)
(7) 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.
814.245(8)
(8) 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.
814.245(9)
(9) 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),
(g) or
(q).
814.245(10)
(10) 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.
814.245(11)
(11) 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:
814.245(11)(a)
(a) The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
814.245(11)(b)
(b) 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.
814.245 Annotation
Petitioner must receive at least some of requested relief in order to "prevail" under (3). Kitsemble v. DHSS, 143 W (2d) 863, 422 NW (2d) 896 (Ct. App. 1988).
814.245 Annotation
30-day period in (6) commences at time matter is disposed of in favor of party following remand to administrative agency. Sheely v. DHSS, 150 W (2d) 320, 442 NW (2d) 1 (1989).
814.27
814.27
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.
814.27 History
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.27;
1983 a. 158;
1993 a. 486.
814.28
814.28
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 executors, administrators, 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.
814.28(2)
(2) Order for security. Upon proof by affidavit entitling the defendant thereto the court or judge shall order the plaintiffs to file security for costs in a sum therein mentioned, not less than two hundred and fifty dollars, within twenty days after the service upon them of a copy of such order, and that all proceedings on the part of such plaintiffs be stayed until security is filed.
814.28(3)
(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.
814.28(4)
(4) Deposit in lieu of undertaking. The plaintiffs in lieu of such undertaking 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 such deposit.
814.28 History
History: Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.28.
814.29
814.29
Security for costs, service and fees for indigents. 814.29(1)(a)(a) Any person may commence, prosecute or defend any action or 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 proceeding, or any writ of error or appeal therein, or to give security for those costs.
814.29(1)(b)
(b) 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.
814.29(1)(c)
(c) 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.
814.29(1)(d)
(d) The court shall make a finding of poverty and issue an order under
par. (a) if the affidavit demonstrates any of the following:
814.29(1)(d)1.
1. 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. 45.351 (1) or under
38 USC 501 to
562.
814.29(1)(d)2.
2. 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.
814.29(1)(d)3.
3. 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 (2).
814.29(2)
(2) 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).
814.29(3)(a)(a) 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
814.025 and under
42 USC 1988 and to pay the balance to the plaintiff.
814.29(3)(b)
(b) If the affiant is a prisoner, as defined in
s. 46.011 (2), or a person confined in a federal correctional institution located in this state, 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 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 the time the judgment was rendered.
814.29 History
History: Sup. Ct. Order, 67 W (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 W (2d) xxxi;
1993 a. 490;
1995 a. 27,
201.
814.29 Note
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.
814.29 Annotation
Trial judge may refuse approval of affidavit of indigency, where complaint or affidavit to obtain waiver of costs and fees failed to give notice of claim upon which relief may be granted. State ex rel. Rilla v. Dodge County Cir. Ct. 76 W (2d) 429, 251 NW (2d) 476.
814.29 Annotation
Bond requirement of 775.01 can be waived under 814.29 (1). Boldt v. State, 101 W (2d) 566, 305 NW (2d) 133 (1981).
814.29 Annotation
Indigent in civil case is entitled to waiver of transcript fees on appeal if trial judge finds indigent believes he or she is entitled to redress sought on appeal. Girouard v. Jackson Circuit Ct. 155 W (2d) 148, 454 NW (2d) 792 (1990).
814.29 Annotation
In making Girouard determination, trial court should specifically consider litigant's income and assets; expenses, including unusual expenses; and projected cost of the transcript requested. State v. Jacobus, 167 W (2d) 230, 481 NW (2d) 642 (Ct. App. 1992).
814.33
814.33
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.
814.33 History
History: Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.33;
1993 a. 486.
814.34
814.34
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.
814.34 History
History: Sup. Ct. Order, 67 W (2d) 585, 761, 781 (1975); Stats. 1975 s. 814.34;
1993 a. 486.
814.46
814.46
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.
814.46 History
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.46;
1993 a. 486.
814.47
814.47
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.
814.47 History
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.47.
814.48
814.48
Duty of officers taxing costs. Every officer authorized to tax costs in any court for services in any proceeding shall examine the bills presented for taxation, whether such taxation be opposed or not, and must be satisfied that the items charged are correct and legal, and shall strike out all charges for services which, in the officer's judgment, were not necessary.
814.48 History
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.48;
1993 a. 486.
814.49
814.49
Costs on dismissal for lack of jurisdiction or stay of proceedings. 814.49(1)(1)
Costs on dismissal for lack of personal jurisdiction. If on objection of any defendant made pursuant to
s. 802.06 (2) the action is dismissed as to that defendant on the ground that the court lacks jurisdiction over the defendant's person, the court when entering judgment dismissing the action against the defendant may order the plaintiff to pay to the defendant all reasonable actual costs, disbursements and expenses of the action up to the judgment of dismissal, but the amount so recovered can in no case exceed the sum of $500.
814.49(2)
(2) Costs on stay of further proceedings. Whenever any party obtains an order staying further proceedings in the action pursuant to
s. 801.63, the court may award that party all statutory costs and disbursements in the action up to the order for stay.
814.49 History
History: Sup. Ct. Order, 67 W (2d) 585, 758, 781 (1975); Stats. 1975 s. 814.49; Sup. Ct. Order, 130 W (2d) xix (1986);
1993 a. 486.
Effective date note
Judicial Council Note, 1986: Sub. (2) is amended to give the court discretion to award or deny costs and disbursements when further proceedings are stayed pending trial in another state under s. 801.63. [Re Order eff. 7-1-86]
814.51
814.51
Jury fees; discretion of court. The court shall have discretionary authority in any civil or criminal action or proceeding triable by jury to assess the entire cost of one day's juror fees for a jury, including all mileage costs, against either the plaintiff or defendant or to divide the cost and assess the cost against both plaintiff and defendant, or additional parties plaintiff or defendant, 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. The party assessed shall be required to make payment to the clerk of circuit court within a prescribed period and the payment thereof shall be enforced by contempt proceedings.
814.51 History
History: 1971 c. 297; Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.51;
1977 c. 318.
814.51 Annotation
This section is inapplicable where parties reached settlement after selecting jury and making opening statements. Jacobson v. Avestruz, 81 W (2d) 240, 260 NW (2d) 267.
814.51 Annotation
Accused who cancels jury trial at last moment to accept plea bargain risks both taxation of costs under 973.06 and assessment of jury fees under 814.51. State v. Foster, 100 W (2d) 103, 301 NW (2d) 192 (1981).
814.51 Annotation
Circuit courts do not have authority to impose penalty for cancellation of jury trial beyond that provided for in this section. Collins v. American Family Mut. Ins. Co. 153 W (2d) 477, 451 NW (2d) 429 (1990).
COURT FEES
814.60
814.60
Criminal actions; fees of the clerk of court. 814.60(1)(1) In a criminal action, the clerk of circuit court shall collect a fee of $20 for all necessary filing, entering or recording, to be paid by the defendant when judgment is entered against the defendant. Of the fees received by the clerk of circuit court under this subsection, the county treasurer shall pay 50% to the state treasurer for deposit in the general fund and shall retain the balance for the use of the county.
814.60(2)
(2) In addition to any fine imposed, a defendant shall be required to pay any applicable:
