CITY OF JANESVILLE, Plaintiff-Respondent and Cross-Appellant, v. Jilleen WISKIA, Defendant-Appellant and Cross-Respondent-Petitioner.†
No. 78-650
Supreme Court of Wisconsin
June 27, 1980
Motion for reconsideration denied, with costs, on September 10, 1980
293 N.W.2d 522
COFFEY, J.
Argued June 3, 1980. ABRAHAMSON, J., dissents. (Opinion filed.) STEINMETZ, J., took no part.
For the city of Janesville there was a brief and oral argument by Berta S. Hoesly, city attorney.
The record establishes that on December 30, 1975, the city of Janesville charged Jilleen Wiskia, a bartender at the Blarney Stone Tavern in Janesville, with a violation of
Jilleen Wiskia entered a plea of not guilty to the charge and requested a jury trial. The testimony introduced at trial recites that on the morning of November 30, 1975, prior to arriving at the Blarney Stone Tavern, Gilbert Bobzein consumed a pint of brandy with some beer. After arriving at the tavern, he had one or two more beers. While at the tavern, a customer named James Fullerton offered to “buy anybody a schooner of . . . wine who would chug it.” Bobzein accepted the offer and Fullerton then purchased a bottle of wine from Wiskia. Fullerton then filled a schooner with wine and handed it to Bobzein who promptly drank it. He then poured another schooner of wine and Bobzein drank it also. At that point, Fullerton purchased a second bottle of wine and refilled Bobzein‘s glass. Fullerton stated that Bobzein “. . . drank about like half of it, and that‘s all that I saw him drink of that.” Hоwever, Jilleen Wiskia testified that he drank the entire glass. Shortly thereafter, Bobzein fell off his bar stool to the floor and passed out. Fullerton and several others carried Bobzein to a car and he was driven to a friend‘s house where he died a short time later. Two police officers who investigated Bobzein‘s death testified that they had interviewed the bartender, Wiskia. The first officer, Bartz, testified that during the interview she stated
Following the testimony, the jury returned a verdict of not guilty and the court granted “the defendant‘s motion for judgment on the jury verdict.” The petitioner, Wiskia, thereafter filed a motion requesting reimbursement from the city for costs and reasonable attorney‘s fees, pursuant to
“. . . consistent with the provisions of sec. 814.025, the Court will award to the defendant counsel [Jilleen Wiskia‘s attorney] fees in the sum of $500, which the court believes are reasonable in amount and necessarily incurred in the defense of this action, together with other out-of-pocket disbursements incurred by the defendant as shown by the proposed bill of costs which has been presented to the Court by defense counsel in support of his motion to tax attorney‘s fees under sec. 814.025, Stats.”
The petitioner then filed a motion requesting the trial court reconsider and increase the attorney‘s fees allowed—$500 out of a total bill of $2,565 submitted by the attorneys. The trial court reconsidered and increased the attorney‘s fees to $850.
On October 20, 1978 judgment was entered and signed by the judge providing as follows:
“The court having heard the motion for the taxation of costs and having rendered memorandum decisions on the 23rd day of August, 1978 and the 3rd day of October, 1978, and the court having directed judgment to be entered accordingly;
“IT IS HEREBY ADJUDGED:
“1. That the action of plaintiff is dismissed, upon the merits, with prejudice.
“2. That the action as commenced and maintained by the plaintiff, City of Janesville, was frivolous within the terms of Wisconsin Statutes Section 814.025.
“3. That pursuant to Wisconsin Statutes Section 299.25 (13) and Section 814.025, defendant [Jilleen Wiskia] does recover from plaintiff the sum of $111.98 as costs4 together with reasonable attorney fees in the sum of $850.00.”
Thereafter, Wiskia, appealed from part of thе trial court‘s judgment and sought full reimbursement for her attorneys’ fees. The city of Janesville, in turn, cross-appealed from “paragraphs 2 and 3 of the judgment” holding the city‘s action was frivolous and awarding the petitioner $850 in attorney‘s fees.
The court of appeals reversed the trial court‘s judgment and held that:
1. the city‘s prosecution of the petitioner for violation of
2. the trial court erred in awarding the petitioner attоrneys’ fees pursuant to
Jilleen Wiskia petitioned this court for review of the court of appeals decision.
ISSUE
Was the petitioner entitled to recover costs and “reasonable attorney fees” incurred in defense of an action brought by the city to enforce
On review, the petitioner, Jilleen Wiskia, contends that the court of appеals erred in reversing the trial court‘s
In Milwaukee v. Leschke, 57 Wis.2d 159, 203 N.W.2d 669 (1973), this court stated:
“In proceedings for violation of municipal ordinances there is no liability for, or right to, costs in the absence of statutory authorization. It is stated in 9 McQuillin, Municipal Corporations (3d ed. rev.), p. 712, sec. 27.43, that:
“‘Costs are the creatures of statutes and cannot be awarded unless expressly provided. At common law they were not recoverable by eithеr party in any case, civil or criminal. It has often been held that in the absence of statute providing therefor, costs cannot be taxed against a municipality in cases for violations of ordinances, no matter whether the case is decided against it or not. . . .’
“This court has consistently held that at common law costs were unknown, and that in this state costs are regulated exclusively by statute as a matter of legislative discretion [citations omitted]. In the absence of a statute authorizing costs they are not recoverable . . . [citations omitted].
“Forfeiture actions for municipal ordinance violations are governed by chs. 66, 288, 299 and 345, Stats.”
Id. at 161-62. See also: State ex rel. Korne v. Wolke, 79 Wis.2d 22, 255 N.W.2d 446 (1977).
It should be noted that this court has consistently held, in a number of cases, that a prosecuting attorney possesses broad discretion in determining whether to charge a defendant and proceed to trial. In State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 166 N.W.2d 255 (1969), the “. . . leading Wisconsin case regarding the exercise of prosecutorial discretion. . . .”5 this court held that:
“It is clear that in his functions as a proseсutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases wherе there appears to be a violation of the law no matter how trivial. In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers. True, he is answerable to the people, for if he fails in his trust he can be recalled or defeated at the polls. In the event he wilfully fails to perform his duties or is involved in crime, he may bе suspended from office by the governor and removed for cause. These, however, are political remedies that go not to directing the performance of specific duties but rather go to the question of fitness for office.
“The district attorney‘s function, in general, is of a discretionary type, the performance of which is not compellable in mandamus. 27 C.J.S., p. 648, sec. 10, District and Prosecuting Attorneys, summarizes, cоrrectly we believe, the broad nature of the discretion conferred upon the district attorney:
“‘The prosecuting attorney has wide discretion in the manner in which his duty shall be performed, and such
discretion cannot be interfered with by the courts unless he is proceeding, or is about to proceed, without or in excess of jurisdiction. Thus, except as ordained by law, in the performance of official acts he may use his оwn discretion without obligation to follow the judgment of others who may offer suggestions; and his conclusions in the discharge of his official liabilities and responsibilities are not in any wise subservient to the views of the judge as to the handling of the state‘s case.‘”
In Locklear v. State, 86 Wis.2d 603, 273 N.W.2d 334 (1979) this court stated:
“. . . it must be noted that a prosecutor is accorded a broad range of discretion in the enforcement of ordinances and statutes.” (emphasis supplied).
Id. at 609. See also: State v. Johnson, 74 Wis.2d 169, 246 N.W.2d 503 (1976).
Similarly, in Whitaker v. State, 83 Wis.2d 368, 265 N.W.2d 575 (1978), this court held that the quеstion of what charges should be issued against a defendant is a matter “within the discretion of the prosecuting attorney. . . .” Id. at 373. Recently, in State v. Karpinski, 92 Wis.2d 599, 285 N.W.2d 729 (1979), this court stated that it:
“. . . has repeatedly emphasized that the prosecutor has great discretion in determining whether to commence a prosecution. While it is the prosecutor‘s duty to prosecute criminal actions, sec. 59.47, Stats., the prosecutor is not required to prosecute all cases in which it appеars that the law has been violated. We have characterized the prosecutor‘s charging discretion as ‘quasi-judicial’ in the sense that it is his duty to administer justice rather than to obtain convictions.”
Clearly, in view of the above line of cases, it is well established that prosecuting attorneys and their assistants, whether a district attorney in a criminal action or a city attorney in a quasi-criminal action (an ordi-
In the present case, the petitioner, Wiskia, was charged and pled not guilty to a violation of
“A forfeiture action [for a violation of a municipal ordinance] is a quasi-criminal proceeding where the defendant is required as in criminal cases to enter a plea of guilty, not guilty or nolo contendere. The ordinance in many instances is derived from a criminal statute.”
Id. at 46. See also: Neenah v. Alsteen, 30 Wis.2d 596, 142 N.W.2d 232 (1966).
In State v. Hamley, 137 Wis. 458, 119 N.W. 114 (1909), this court held that:
“. . . prosecutions for breaches of municipal ordinances are quasi-criminal, such breaches are not offenses against the state and therefore not punishable as such.”
The present action was thus a quasi-criminal proceeding and as such,
We recognize that the death of a person, due to excessive drinking at a local tavern, is a matter of community concern and that the prosecuting attorney has the duty to carefully weigh the factors involved before deciding whether or not to prosecute the bartender. In response to a problem of this nature, the state and local municipalities are required, of necessity, to closely regu-
Finally, it should be pointed out that our holding that
By the Court.—The decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting on motion for reconsideration). The defendant-appellant Wiskia moved for reconsideration on the grounds that this court decided the case on an issue which this court raised sua sponte, without giving the parties an opportunity to address the issue, and that the court‘s opinion did not consider relevant statutory provisions. The issue whеther the trial court has authority to tax costs pursuant to
Notes
Sec. 814.025, Stats., reads in part as follows:
“Costs upon frivolous claims and counterclaims. (1) If an action or sрecial proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.
“(2) The costs and fees awarded under sub. (1) may be assessed fully against either the party bringing the action, special proceeding, cross complaint, defense or counterclaim or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.”
Sec. 814.025(3)(b), Stats., reads as follows:
“(3) In order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivоlous under sub. (1) the court must find one or more of the following:
“(a) ...
“(b) The party or the party‘s attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint 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.”