Wisconsin Stat. § 885.38(8) provides that counties shall pay the expenses of qualified interpreters appointed by the court, and Wis. Stat. § 758.19(8) provides that county interpreter expenses shall be reimbursed by the state at set hourly rates ($40 per hour for a certified interpreter and $30 per hour for non-certified). Because the hourly amount counties must actually pay to qualified interpreters often exceeds the statutory reimbursement rate, counties are left to absorb the costs unless they can pass on the costs to litigants. Nevertheless, I am unable to find support in Wisconsin law for shifting the additional costs to criminal defendants. No Wisconsin case has discussed imposing interpreter costs on criminal defendants. The Wisconsin Supreme Court has held, however, that “costs are regulated exclusively by statute as a matter of legislative discretion.” State v. Dismuke, 2001 WI 75, ¶ 19, 244 Wis. 2d 457, 628 N.W.2d 791. “[C]osts taxable against a criminal defendant are limited to those specifically enumerated in Wis. Stat. § 973.06.” Id., citing State v. Ferguson, 202 Wis. 2d 233, 238, 549 N.W.2d 718 (1996). Wisconsin Stat. § 973.06 provides as follows: Except as provided in s. 93.20 [enforcement fees of the Department of Agriculture, Trade and Consumer Protection], the costs, fees, and surcharges taxable against the defendant shall consist of the following items and no others [disbursements and fees of officers allowed by law, drug buy money, costs incurred due to threats to release chemical, biological or radioactive substances, fees and travel of state witnesses at preliminary hearing and trial, fees and disbursements allowed by the court to expert witnesses, and fees and travel of defense witnesses at preliminary hearing and trial]. In Ferguson, the Supreme Court found no statutory support for the state’s argument that crime laboratory testing could be taxed as an expert witness fee or disbursement under Wis. Stat. § 973.06(1)(c), and therefore disallowed shifting such costs to the defendant. Specifically, the court held that, “[t]o constitute a fee under § 973.06(1)(c) [related to expert witnesses], the cost of performing a service must be more than an internal operating expense of a governmental unit which has been prorated or costed out; it must be chargeable to and payable by another.” Ferguson, 202 Wis. 2d at 242, cited in Dismuke, 244 Wis. 2d 457, ¶ 20. Applying the reasoning of Dismuke and Ferguson here, unless there exists a statute that provides for the costs of necessary interpreters to be shifted to the litigants or defendants, such shifting is prohibited. “By its plain language, then, the costs taxable against a defendant under Wis. Stat. § 973.06(1)(c) are limited to the items enumerated therein.” Ferguson, 202 Wis. 2d at 238. The only enumerated section that would seem to be potentially relevant to necessary interpreters would be that provision permitting the charging of defendants for expert witness fees. But interpreters, by their nature, are not normally considered to be expert witnesses, nor indeed are they witnesses of any kind, and we know of no case law or statute that would suggest that interpreters should be treated as expert witnesses for cost purposes. The clear language of the new interpreter statute, coupled with the rules enunciated in Ferguson and Dismuke, is controlling, and prevents the shifting of interpreter costs to defendants in a criminal proceeding.
2. For a civil case, can the unreimbursed amount be taxed as a cost under §907.06 or §814.04(2)? Can it be taxed to another party? As noted above, the Legislature specifically amended Wis. Stat. § 885.38(3)(a) to provide for public funding of necessary interpretation services in all court proceedings. Absent any clear language elsewhere, the plain language of the amended statute evidences a blanket prohibition on the taxing of such costs. Wisconsin Stat. § 907.06(2) provides that the parties to civil cases may be taxed with compensating court appointed expert witnesses as the judge directs. There is some authority suggesting that, in the past, interpreters could have been treated as expert witnesses in civil cases for cost-shifting purposes. When adopting the Wisconsin Rules of Evidence in 1973, the Judicial Council comment noted: “As an expert, an interpreter will be qualified pursuant to s. 907.02 and can be supplied pursuant to s. 907.06.” 59 Wis. 2d R1, R163 (1973) (emphasis supplied). Then, as now, the expert witness provisions of Wis. Stat. § 907.06(2) provided that: “In civil cases the compensation shall be paid by the parties in such proportion and at such time as the judge directs, and thereafter charged in like manner as other costs but without the limitation upon expert witness fees prescribed by [the statutory predecessor of s. 814.04(23)].” The Judicial Council comment might have served as support for charging civil suit parties with interpreter fees (as expert witness costs) in civil cases before 2007 Wisconsin Act 20 amended Wis. Stat. § 885.38. Today, however, the language of Wis. Stat. § 885.38 as amended coupled with the legislative history cited infra mandates the conclusion that, whenever interpreters are deemed necessary, they should be provided at public expense. Nor does Wis. Stat. § 814.04 have any language contradicting Wis. Stat. § 885.38(3) which provides for the taxation of certain costs of the prevailing party against the losing party and nowhere includes court appointed interpreters. The term “costs” in the two statutes discussed and in Wisconsin law in general has a special meaning in the context of litigation. See State v. Foster, 100 Wis. 2d 103, 106, 301 N.W.2d 192 (1981). “[A]ny award of a ‘cost’ which is not specifically authorized by a Wisconsin statute constitutes an error of law that must be reversed.” Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 147, 549 N.W.2d 714 (1996). Where the Legislature has chosen to give the courts authority to tax a party with the court’s costs it has done so, for example, in the case of a court appointed expert witness discussed above. Neither Wis. Stat. § 907.06 nor Wis. Stat. § 814.04 provide authorization for a court taxing any party or litigant with necessary courtroom proceeding interpretation services. 3. For a civil forfeiture, can the unreimbursed amount be taxed under §778.06? Wisconsin Stat. § 778.06 provides as follows: When a forfeiture is imposed . . . the action may be brought for the highest sum specified, plus costs, fees, and surcharges imposed under ch. 814; and judgment may be rendered for such sum as the court or jury shall assess or determine to be proportionate to the offense. As discussed above, there does not appear to be any authority within Wis. Stat. ch. 814 to impose courtroom interpreter compensation as a cost, fee, or surcharge upon any party to litigation including a defendant in a civil forfeiture action. 4. In a municipal court, can the cost of an interpreter be taxed as a cost under §800.09? Wisconsin Stat. § 800.09(1), like Wis. Stat. § 778.06, permits the taxation of “costs, fees, and surcharges imposed under ch. 814” on a defendant found guilty in a municipal court. As before, the lack of any clear language in Wis. Stat. ch. 814 classifying interpreter costs as a cost, fee, or surcharge, coupled with the public expense language of Wis. Stat. § 885.83(3) renders Wis. Stat. § 800.09 unavailable as a method for charging back the costs of necessary courtroom interpreters. 5. Can the court tax unreimbursed interpreter travel costs?
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6. Can the court tax the amount that is reimbursed by the state – the first $30 or $40 per hour?
Wisconsin Stat. § 885.83(3) as amended provides that, when a person has limited English proficiency and an interpreter is necessary, the court is to advise the qualified individual that he or she has a right to an interpreter at the public’s expense. This language, coupled with the fact that no other statutory language exists providing taxation of the costs for necessary interpreters, precludes courts from taxing unreimbursed or reimbursed interpreter costs whether for travel or compensation. 7. For any of these questions, does it matter if the defendant is indigent or not?
As noted above, the prior version of Wis. Stat. § 885.38(8), provided for the provision of necessary interpreters only where the qualified individual was indigent or could not afford one. These clauses were deleted from the statute, demonstrating the Legislature’s intent to provide this service at public expense regardless of ability to pay. Federal civil rights laws also do not make such a distinction. Thus, for any of the questions you have posed, it does not matter if the defendant is indigent or not. If a court interpreter is necessary, then the county must assume the expense. Sincerely,
J.B. Van Hollen
Attorney General
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