Wisconsin Legislature: oag8-09

¶ 19. Costs for service made by personnel of the municipal plaintiff are not disbursements because they are “internal operating expenses of a governmental unit.” State v. Dismuke, 244 Wis. 2d 457, ¶ 22. Under Wis. Stat. § 814.65(4)(b), a municipal plaintiff can request a municipal court to tax internal costs incurred in connection with “service of process[.]” The term “process” has two different, well-established legal meanings:

In its broadest sense, the term “process” comprehends all the acts of the court from the beginning of a proceeding to its end; in its narrower sense, it is the means of compelling the defendant to appear in court after the suing out of the original writ in a civil case and after indictment in a criminal case. State ex rel. Walling v. Sullivan, 245 Wis. 180, 189, 13 N.W.2d 550, 555 (1944).

Wells v. Waukesha Marine Bank, 135 Wis. 2d 519, 536-37, 401 N.W.2d 18 (Ct. App. 1986) (italics in original). See also Varda v. General Motors Corp., 2001 WI App 89, ¶ 15, 242 Wis. 2d 756, 626 N.W.2d 346 (using the phrase “service of process” in the narrower sense to refer to “the means by which a lawsuit is instituted and . . . to attain personal jurisdiction over the person of the defendant”) (citations omitted.)

¶ 20. In my opinion, the Legislature used the term “process” in Wis. Stat. § 814.65(4)(b) to refer to all orders issued by the municipal court. In State v. Dismuke, 238 Wis. 2d 577, ¶ 13, a case involving an issue similar to those you present, the court of appeals held that orders to produce a criminal defendant for trial constituted “criminal process[]” because they “were generated out of the criminal court[.]” The court of appeals also held that such orders constituted “process” within the meaning of Wis. Stat. § 814.70(1) because orders to produce a criminal defendant are “‘other order[s]’” within the meaning of that statute. State v. Dismuke, 238 Wis. 2d 577, ¶ 13.

¶ 21. My conclusion that the Legislature intended the term “process” in Wis. Stat. § 814.65(4)(b) to refer to all orders issued by the municipal court is also supported by the cross reference to Wis. Stat. § 814.70. See Kalal, 271 Wis. 2d 633, ¶ 46. Wisconsin Stat. § 814.70(1) is entitled “SERVICE OF PROCESS.” Wisconsin Stat. § 814.70(1) authorizes the sheriff to charge for “service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena, or any other order[.]” If the Legislature had intended to limit the term “process” in Wis. Stat. § 814.65(4)(b) to certain kinds of court orders, it either would not have included the cross reference to Wis. Stat. § 814.70 or would have qualified that cross reference to make it clear that a more limited meaning was intended.

¶ 22. In State v. Dismuke, 244 Wis. 2d 457, ¶ 24, due to the lack of an adequate record, the supreme court simply “[a]ssum[ed] . . .” without deciding that “the execution of an order to produce constitutes ‘service of process[.]’” In the court of appeals, Dismuke contended that personal service of an order to produce was not statutorily required. See State v. Dismuke, 238 Wis. 2d 577, ¶¶ 17-18. The court of appeals responded to that argument in two ways. It held that, in a criminal case, it is permissible for the sheriff to charge for service of any order issued by the court. See State v. Dismuke, 238 Wis. 2d 577, ¶ 13. The court of appeals also upheld the sheriff’s decision to personally serve the warrant, reasoning that “it would be illogical to mail the service of an order to a warden when a sheriff’s deputy is required to effectuate the court’s order.” State v. Dismuke, 238 Wis. 2d 577, ¶ 18. In reversing the court of appeals, the supreme court never reached the issue of whether service of an order to produce is statutorily required.

¶ 23. All court costs must be specifically authorized by statute. State v. Dismuke, 244 Wis. 2d 457, ¶ 19. Statutes awarding costs in municipal court proceedings are in derogation of the common law and therefore must be strictly construed. City of Janesville v. Wiskia, 97 Wis. 2d 473, 479, 293 N.W.2d 522 (1980); OAG 42-82 (July 20, 1982) (unpublished opinion), at 3-4, 1982 WL 188338. Wisconsin Stat. § 59.27(4), which prescribes the duties of the sheriff, requires the sheriff to “serve or execute all processes, writs, precepts and orders issued or made by lawful authority and delivered to the sheriff.” Courts have long held that “[t]o ‘execute process,’ is to perform its mandate.” Andrews v. Keep, 38 Ala. 315, 1862 WL 442, *2 (1862). Accord Townsend, Arnold & Co. v. Kleckley, 38 S.C.L. (4 Rich.) 206, 1850 WL 3078, *5 (1850) (“‘To execute process,’ is to do what the process commands . . . .”).

¶ 24. Service of process normally involves delivery of a paper. See Wis. Stat. § 801.10. When interpreting statutory language, some courts have applied the distinction between service of process and execution of process. See U.S. v. McDonald, 26 F. Cas. 1074, 1075 (E.D. Wis. 1879) (No. 15,667); Schuman, Kane, Felts & Everngam, Chartered v. Aluisi, 668 A.2d 929, 933 (Md. 1995). See also Steele v. City of Wichita, 826 P.2d 1380, 1388-89 (Kan. 1992). In Schneider v. Waukesha County, 103 Wis. 266, 269, 79 N.W. 228 (1899), the court characterized “the difference in language [between ‘serving process’ and ‘executing process’] as [im]material” for purposes of determining allowable sheriff’s fees under what is now Wis. Stat. § 814.70(4), which authorizes fees “[f]or travel in serving any criminal process[.]” The “service of process” language contained in Wis. Stat. § 814.65(4)(b) is similar to the statutory language construed in Schneider. In light of the court’s holding in Schneider, it is my opinion that the “service of process” language contained in Wis. Stat. § 814.65(4)(b) also encompasses the execution of process. I therefore conclude that a municipal court may allow a municipal plaintiff to tax costs against a defendant in municipal court for actual service or execution by municipal personnel of each warrant or commitment order issued by its municipal court in a single legal action.

¶ 25. I briefly address two other statutory requirements. Wisconsin Stat. § 814.65(4)(b) authorizes the taxation of costs only when service “is accomplished[.]” The word “accomplished” means “2 : established beyond doubt or dispute <an accomplished fact>.” http://www.merriam-webster.com/dictionary/accomplished. The statutory language therefore requires that service or execution actually be accomplished by the municipal plaintiff’s personnel in order for a municipal court to allow a municipal plaintiff to tax service costs against a defendant. The dollar amount of taxable costs where service or execution is accomplished by municipal personnel is also limited. Wisconsin Stat. § 814.65(4)(b) provides that the fee schedule contained in Wis. Stat. § 814.71 is “subject to any modification applicable under s. 814.705[.]” Wisconsin Stat. § 814.70(1) provides that the statutory charge for service of an order issued in a civil action is $12. Under Wis. Stat. § 814.705, the governing body of the municipal plaintiff is authorized to establish a higher amount. In my opinion, any higher charge must have been established by the governing body of the municipal plaintiff prior to the time that service or execution by its municipal personnel occurred in order for a charge higher than $12 to be allowable as a cost against a defendant in municipal court.

CONCLUSION

¶ 26. I therefore conclude that under Wis. Stat. § 814.65(1) a municipal judge must charge only one fee of between $15 and $28 that is taxable as a cost to the defendant in conjunction with the final disposition of a municipal court action, regardless of how many warrants or commitment orders are issued in that action. A municipal court may not allow a municipal plaintiff to tax costs against a municipal court defendant in order to defray law enforcement or other municipal costs associated with the issuance of a warrant or commitment order by the municipal court. Under Wis. Stat. § 814.65(4)(b), a municipal court may allow a municipal plaintiff to tax costs against a defendant for actual service or execution by municipal personnel of each warrant or commitment order issued by the municipal court in a single legal action. Allowable taxable costs for such service or execution by personnel of the municipal plaintiff may not exceed $12, unless a higher amount was established by the governing body of the municipality prior to the time that service or execution occurred.

Sincerely,

J.B. Van Hollen

Attorney General

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