Opinion
October 27, 2008, November 18, 2009
Hon. J. B. Van Hoilen Attorney General
114 East, State Capitol Madison, WI 53707-7857
RE: Municipal court fees for warrants and commitment orders
Dear Attorney General Van Hoilen:
I am requesting guidance from your office on whether Wisconsin law permits a municipality to charge a fee for warrants and commitment orders issued by the municipal court and/or served by local law enforcement. This issue has arisen in the Mid-Moraine Municipal Court, a joint court formed under Wis. Stats. § 755.01(4) to serve thirteen municipalities in Washington and Ozaukee counties, but it is applicable to municipal courts statewide.
There are two questions presented; (1) May a municipal court charge a fee for issuing an arrest warrant or commitment order, taxable as a cost to the defendant, with the proceeds to be retained by the court? (2) May a municipality charge a fee for issuing or serving a warrant or commitment order, taxable as a cost to the defendant, payable to the municipality to offset the costs of service by law enforcement?
(1) Can a municipal court impose a court fee for issuing a warrant or commitment order?
The Mid-Moraine Municipal Court for many years has charged a $25 "warrant fee" each time an arrest warrant or commitment order is issued by the court, generally for defendants who have failed to pay the judgments against them, as provided by § 800.095. This fee is taxed as costs and added to the judgment; the money is collected and retained by the court. Collection of the fee was initiated by the predecessor of the current judge; there does not appear to be any ordinance requiring it. The Mid-Moraine municipalities are now circulating a joint ordinance, to be adopted by each municipality, that would institutionalize this fee.
There appears to be general agreement that a municipal court's authority to impose fees derives from state law and cannot be enlarged by municipal ordinance. With respect to the circuit courts, my office has taken the position that courts may charge only those fees allowed by statute. My office has consulted with members of the municipal judges' benchbook committee, who agree that municipal courts may not charge court fees for issuing warrants and commitment orders, and recent municipal judge education programs have said the same. I am attaching a letter from Eric Eberhardt, City Attorney for Port Washington, who appears to concur with this view.
Consistent with advice we have received from your office, we have advised circuit court clerks and judges that the only fees that may be collected by the court are those supported by statute, and the county board may not authorize additional fees for the clerk of court. See Director of State Courts Administrative Bulletin 04-07, citing 80 Op. Att'y Gen. 223 (1992). My office has also advised circuit court clerks that there is no such thing as a "warrant fee" that goes to the court for simply issuing a warrant. (The $5 fee in § 814.61(5) is for filing tax warrants, which is clear from the context.)
The question then is whether there is any statute that allows the municipal court to charge such a fee. Some of the municipalities have argued that the statute providing municipal court costs of $15 — $28 per case provides the statutory basis for the court to add this amount each time a summons or warrant is issued. The argument is that the court can charge for each of the actions listed below:
§ 814.65 Fees of the municipal court. (1) Court costs. In a municipal court action, . . . the municipal judge shall collect a fee of not less than $15 nor more than $28 on each separate matter, whether it is on default of appearance, a plea of guilty or no contest, on issuance of a warrant or summons, or the action is tried as a contested matter. Of each fee received by the judge under this subsection, the municipal treasurer shall pay monthly $5 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the municipality.
The municipal judges consulted strongly disagree with this reading of the statute. They see this section as the fee charged by the court for filing the action, the equivalent of the circuit court filing fee provided in § 814.63(l)(b). They argue that this list is jurisdictional in nature and enumerates the ways in which a case might come before the court, not the number of times a fee can be charged. I believe this view is correct and reflects the practice of how municipal court fees in fact are charged. If this statute does not apply, I see no statute that allows the court to impose a fee, retained by the court, for issuing a warrant.
(2) Can a municipality impose a law enforcement fee for issuing or serving a warrant or commitment order?
The joint ordinance also includes an additional $25 fee, applicable to all warrants or commitment orders issued by the court, which would go to the municipal treasurer to offset the law enforcement costs of serving the warrant.
Service Fees. Pursuant to the provisions of Section 814.70, 814.705, and 814.71 of Wis. Stats., on behalf of "Municipality Name", the Mid-Moraine Municipal Court, of which the municipality is a member of, shall charge a $50 warrant and commitment order service fee for all warrants issued. Upon the Municipal Court's receipt of payment, the "Municipality Name" shall receive $25.00 of the fee and the Mid-Moraine Municipal Court shall receive $25.00 of the fee.
The municipal attorneys argue that this ordinance is supported by the following statutes:
§ 800.10 Fees and costs in municipal court. (1) Fees and costs in municipal court are prescribed in s. 814.65.
§ 814.65 Fees of the municipal court. (4) Taxation of fees and costs.
(a) Other than fees specified in sub. (1) and costs specified in par. (b), no fees or costs are taxable by a municipality to a party before a municipal court unless it is directly chargeable to the municipality as a disbursement, such as service of process costs.
(b) If service of process is accomplished by municipal personnel, the cost of the service prescribed under ss. 814.70 and 814.71, subject to any modification applicable under s. 814.705, is taxable regardless of whether a separate disbursement is made to specifically reimburse the municipal employee or agency.
§ 814.70 Fees of sheriffs. The sheriff shall collect the fees under this section. The fees are set as follows, unless a higher fee is established under s. 814.705;
(1) Service of process. For each service or attempted 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, $12 for each defendant or person. . . .
§ 814.705 Governing body may establish higher fees. (1) With respect to fees enumerated in s. 814.70 (1), (2), (3) (a) and (b), (4) (a) and (b), and (8), [county, city, village and town boards may establish higher fees for their law enforcement officers].
§ 814.71 Fees of city police, constables and village marshals. City police, constables and village marshals shall collect the same fees as those prescribed for sheriffs in s. 814.70 for similar services subject to any modification applicable under s. 814.705.
Although the proposed ordinance is entitled "Service Fees", it is imposed for all warrants issued. That aspect of the ordinance does not appear to be supported by the statutes cited as justification, which are imposed for "service or attempted service" or "service if accomplished". Since this problem is easily corrected, I would like your opinion on the validity of the ordinance either way.
Until it adopted the joint ordinance, the City of Hartford (a member of the Mid-Moraine Municipal Court) had an ordinance authorizing a $25 fee for warrants and commitment orders served by law enforcement, modeled after §§ 814.70-71, taxable as costs to the defendant and deposited to the municipal general fund. Former Hartford Ordinance 42.04(1) provided:
Warrant Service Fees. Pursuant to the provisions of Section 814.70, 814.705 and 814.71 of Wis. Stats, the Police Department shall charge a warrant service fee of $25.00 when the Department serves a warrant or commitment order upon an individual, which fee shall be deposited in the City's general fund. If the individual has warrants from multiple municipalities a warrant fee shall be assessed for each municipality. The individual shall be responsible for the payment of the warrant service fee. (Created 1/23/07 — Ord. # 1136)
Regardless of whether the law enforcement fee is imposed for issuing the warrant or for serving it, the municipal judges that my office has consulted do not believe that a warrant or commitment fee can be taxed to a defendant under the municipal court costs statute, § 814.65. Their view is that warrants and commitment orders aren't "served" on a person or returned to the court; they are orders to law enforcement. The municipal judges read the statutes as follows:
• Under § 814.65(4)(a), a municipal court can impose a warrant fee only if it falls within the class of "fees or costs" that are "directly chargeable to the municipality as a disbursement, such as service of process costs."
• "Service of process", as generally understood and as used by § 800.095(3), consists of delivering a paper designed to give a person notice of an action against them. Warrants under § 800.02(5) and commitment orders under § 800.095(4) and (6) are addressed to a law enforcement officer, whose job is not to deliver the warrant but to pick up the person. Law enforcement is obeying a court order, not serving process.
• § 968.04(4), which says that a warrant is served by arresting the defendant, applies only in criminal cases and not in municipal court. The criminal costs statute is quite dissimilar from the language of the municipal court costs statute.
• The appellate and supreme court opinions in State v. Dismuke, 2001 WI 75 ¶ 25 and 2000 WI App 198 ¶ 8, hold that fees and disbursements are taxable to the defendant only if they are "ordinarily charged to and payable by another" rather than merely "internal operating expenses of a governmental unit." Most municipalities are not charged a fee by outside law enforcement for picking someone up on a warrant, and they don't send a bill when the police pick up a defendant on a warrant from another jurisdiction.
• Since the key phrases in § 814.65(4) are not defined — "service of process" and "directly chargeable to the municipality as a disbursement" — the court should err on the side of not charging. Alternatively, the terms are clear enough to rule out taxing this cost.
There is also an alternative view that "service of process" is a broad enough term to include warrants and commitment orders in municipal court cases. That argument is as follows:
My office has advised that the circuit courts may tax such a fee as costs for the sheriff under § 814.70. The Records Management Committee has included the sheriffs service fee on the form for writ of commitment (GF-148), and the clerks of circuit court have been advised that they may pursue collection on behalf of the sheriff. In criminal cases, § 968.04(4) says that a warrant is "served" by arresting the defendant and informing them of the charges. It specifies that the officer may add the officer's fees and mileage.
• § 814.70(3) covers travel costs for "serving any summons, writ or other process, except criminal warrants". § 814.70(4) covers travel costs for "any criminal process", as if addressing what was excluded in (3). The basic service of process fee is $12, but the county board can set a higher fee. § 814.705.
• § 814.71 provides that local law enforcement "shall collect the same fees as those prescribed for sheriffs in § 814.70 for similar services", suggesting that if the sheriff can charge it, then the police chief can too. Localities may also set their fee higher than $12.
• Under § 814.65(4)(b), a municipal court may impose this fee when service of process is accomplished by municipal personnel.
• The Dismuke opinions say that if an order to produce the defendant for trial constitutes "service of process", then it can be added on to the judgment as a cost. The court of appeals concluded that such an order was "service of process" for purposes of § 814.70, while the supreme court felt the record was too confusing to decide.
Given these competing views, I would like to know whether your office believes that a municipality can charge a fee under any of these circumstances.
Thank you for your assistance with this matter. If you need further information, please contact Marcia Vandercook, 267-7335.
Mr. A. John Voelker Director of State Courts
16 East, State Capitol Madison, Wl 53702
Dear Mr. Voelker:
¶ 1. You indicate that for many years a $25 "warrant fee" has been charged each time that an arrest warrant or commitment order has been issued by a particular municipal court. The term "commitment order" apparently refers to an order for incarceration of a defendant in a municipal court proceeding. See, e.g., Wis. Stat. § 800.095(4)(b)l. Such a fee has most commonly been charged when a warrant has been issued for a defendant who has failed to pay a municipal court judgment. See, e.g., Wis. Stat. § 800.095(1) and (2). The municipal court has been requested to tax each such fee as a cost in proceedings in that court.
¶ 2. All funds derived from the imposition of these fees have been retained by the municipal court. Initially, no municipal ordinance imposed these fees. Enactment of a municipal ordinance or ordinances expressly authorizing the imposition of these fees apparently has occurred or is imminent.
¶ 3. You also indicate that, in addition to the $25 "warrant fee," a municipal ordinance or ordinances has imposed a separate $25 charge to offset law enforcement or other municipal costs associated with the issuance of each arrest warrant or commitment order by this municipal court. This separate charge has been imposed by municipal ordinance regardless of whether service of the arrest warrant or commitment order was ever attempted and regardless of whether the arrest warrant or commitment order was ever successfully served or executed. The municipal court has been requested to tax each such separate charge as a cost against the defendant in proceedings in that court.
¶ 4. Some or all of the funds derived from the imposition of these separate charges have been retained by the municipal court. Enactment of a municipal ordinance or ordinances changing this separate charge to one for actual service of each warrant or commitment order issued by the municipal court apparently has occurred or is imminent.
QUESTIONS PRESENTED AND BRIEF ANSWERS
¶ 5. You request my legal opinion concerning two questions:
1. Under Wis. Stat. § 814.65(1), does a municipal court or judge have statutory authority to charge a fee that is taxable as a cost against a defendant, with the proceeds to be retained by the municipal court, for each arrest warrant or a commitment order that is issued by the municipal court in a single legal action?
¶ 6. In my opinion, the answer is no. In each legal action, a municipal judge must charge only one fee of between $15 and $28. The municipal treasurer must remit $5 of that fee to the Secretary of the Department of Administration ("DOA"). The balance is to be retained by the municipality itself and not by the municipal court. Only one such fee may be charged in each legal action that comes before the municipal court for final disposition, regardless of how many warrants or commitment orders are issued in that action. Because only one such fee may be charged, only one such fee may be taxed as a cost against a defendant in municipal court.
2. In order to defray law enforcement or other municipal costs, does a municipality have statutory authority to impose a charge separate from the fee to be collected by the municipal judge under Wis. Stat. § 814.65(1) that can be taxed as a cost against a municipal court defendant and that is payable to the municipal plaintiff either for the issuance of each warrant or commitment order by its municipal court in a single legal action or for service by its municipal personnel of each warrant or commitment order issued by its municipal court in a single legal action?
¶ 7. In my opinion, a municipal plaintiff may not impose a charge separate from the fee to be collected by the municipal judge under Wis. Stat. § 814.65(1) in order to defray law enforcement or other municipal costs associated with the issuance of any warrant or commitment order by its municipal court. Because no such charge can be imposed, a municipal court may not permit a municipal plaintiff to tax such a charge as a cost against a defendant. Under Wis. Stat. § 814.65(4)(b), a municipal court may allow a municipal plaintiff to tax costs against a defendant in municipal court for actual service or execution by its municipal personnel of each warrant or commitment order issued by its municipal court in a single legal action. 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.
ANALYSIS
¶ 8. Your first question is whether a municipal court or judge may charge a separate fee each time that it issues an arrest warrant or commitment order in a single legal action. The operation of the state court system is a "state responsibility of statewide importance." See Flynn v. Department of Administration, 216 Wis. 2d 521, 535, 576 N.W.2d 245 (1998). "Since compensation is not indispensable to a public office, any right which a clerk has to compensation for services performed, whether by way of salary or fees, must be found in some constitutional or statutory provision." 15A Am. Jur. 2d Clerks of Court § 11 (footnotes omitted). A clerk of a court "may be required to perform gratuitously or without charge those services for which no compensation is fixed by law[.]" Id. (footnote omitted). See also 80 Op. Att'y Gen. 223, 223-24 (1992).
¶ 9. Wisconsin Stat. § 814.65(1) specifies that "[i]n a municipal court action . . ." the "municipal judge shall collect a fee of not less than $15 nor more than $28 on each separate matter, whether it is on default of appearance, a plea of guilty or no contest, on issuance of a warrant or summons, or the action is tried as a contested matter." Wisconsin Stat. § 814.65(1) does not authorize a municipal judge or the clerk of a municipal court to collect or impose a fee of less than $15 or to collect or impose a fee of more than $28.
¶ 10. Whether a fee may be collected under Wis. Stat. § 814.65(1) each time that a warrant or commitment order is issued by a municipal court in a single legal action depends upon the meaning of the phrase "each separate matter" in that statute. Statutory interpretation `"begins with the language of the statute.'" State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Statutory language must be construed in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes. Kalal, 271 Wis. 2d 633, ¶ 46.
¶ 11. Black's Law Dictionary 999 (8th Ed. 2004) defines "matter" as: "1. A subject under consideration, esp. involving a dispute or litigation; CASE. . . ." The term "matter" is commonly used to describe an "action" in a particular court. See, e.g., State v. Ndina, 2009 WI 21, % 92, 315 Wis. 2d 653, 761 N.W.2d 612.
¶ 12. Related statutes also indicate that the phrase "each separate matter" in Wis. Stat. § 814.65(1) refers to the final disposition of a single legal action in municipal court. In criminal and forfeiture matters, a single fee is collected by the clerk of circuit court upon final disposition of the action. See Wis. Stat. § 814.60(1) ($20 in a criminal action "when judgment is entered against the defendant"); Wis. Stat. § 814.63(l)(b) ($25 in a forfeiture action "when judgment is entered against the defendant").
¶ 13. In most civil matters, a single fee is collected by the clerk of court when an action is commenced in that court. See Wis. Stat. § 814.61(l)(a) (ordinary civil action); Wis. Stat. § 814.62(3)(a) (small claims action). A portion of the fee collected by the clerk of court in connection with the commencement of an action must be paid to the Secretary of DOA to defray costs incurred by the State in connection with the operation of the state court system. See, e.g., Wis. Stat. § 814.61(l)(a) ($45 in an ordinary civil action); Wis. Stat. § 814.63(2)(d)2. ($11.80 in a small claims action). At one time, the portion of the fee that was required to be paid to the State was called the "suit tax." See, e.g., Wis. Stat. § 814.21(4) (1977). Wisconsin Stat. § 814.65(1) requires payment of $5 to the Secretary of DOA "for deposit in the general fund" in the same manner as did the former suit tax.
¶ 14. Historically, Wisconsin statutes have not required that a suit tax or similar fee be paid to the State or to the clerk of court in connection with separate items that come before a particular court in a single legal action prior to its final disposition. See, e.g., Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 682, 476 N.W.2d 593 (Ct. App. 1991): "Those sections [of the statutes] provide that a filing fee shall be paid at `the' commencement of an action. An action need only be commenced once. The plaintiff need only pay the filing fee once. Nothing in the statutes suggests that the filing fee be collected for each defendant named or added in an action." The language employed in Wis. Stat. § 814.65(1) contains no evidence of a conscious legislative decision to depart from the long-established practice that only one suit tax or filing fee be paid.
¶ 15. In my opinion, the phrase "each separate matter" in Wis. Stat. § 814.65(1) refers to the various methods in which a single legal action can come before a municipal court for final disposition. The fee authorized by Wis. Stat. § 814.65(1) is therefore a fee that can be charged only once in a municipal court action, regardless of how many warrants or commitment orders are issued in the action prior to its final disposition. Because only one such fee may be charged, a municipal court may allow a municipal plaintiff to tax only one such fee as a cost against a defendant in municipal court.
¶ 16. Your second question is whether a municipality has statutory authority to impose a charge separate from the fee to be collected by the municipal judge under Wis. Stat. § 814.65(1) that can be taxed as a cost to a municipal court defendant and that is payable to the municipal plaintiff either for the issuance of each warrant or commitment order by its municipal court in a single legal action or for service by its municipal personnel of each warrant or commitment order issued by its municipal court in a single legal action.
¶ 17. The "issuance of a warrant or summons" language in Wis. Stat. § 814.65(1) refers to the fee to be collected by the "municipal judge." That provision does not authorize the municipality itself to impose any other separate charge in connection with the issuance of a warrant. By its plain language, Wis. Stat. § 814.65(4)(a) and (b) authorizes the taxation of costs only in connection with "service." A warrant or commitment order that is issued by a municipal court might never be served. Wisconsin Stat. § 814.65(4)(a) and (b) therefore contains no language authorizing the municipality itself to impose any separate charge in connection with the issuance of each individual warrant or commitment order by its municipal court. Because a municipality lacks statutory authority to impose any separate charge to defray law enforcement or other municipal costs associated with the issuance of each warrant or commitment order by its municipal court, a municipal court may not allow a municipal plaintiff to tax any such separate charge as a cost to a defendant in municipal court.
¶ 18. Wisconsin Stat. § 814.65(4)(a) does provide that "costs are taxable by a municipality" where they are "directly chargeable to the municipality as a disbursement, such as service of process costs." Disbursements are statutorily authorized expenses that are "ordinarily charged to and payable by another[.]" State v. Dismuke, 2001 WI 75, ¶ 22, 244 Wis. 2d 457, 628 N.W.2d 791. Lawful charges by the sheriff or law enforcement personnel of other municipalities under Wis. Stat. §§ 814.70 and 814.71, as modified by Wis. Stat. § 814.705, are disbursements. See State v. Dismuke, 244 Wis. 2d 457, ¶ 26; State v. Dismuke, 2000 WI App 198, ft 7, 12, 238 Wis. 2d 577, 617 N.W.2d 862, rev `d for lack of an adequate record, 244 Wis. 2d 457, ¶ 26. See also Wis. Stat. § 814.04. Such statutory charges by the sheriff or law enforcement personnel of other municipalities are taxable as costs to a defendant in municipal court.
¶ 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, 111 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, ff 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 sheriffs decision to personally serve the warrant, reasoning that "it would be illogical to mail the service of an order to a warden when a sheriffs 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 sheriffs 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. 1 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.merriatn-webster.com/dictionary/accomplished. The statutory language therefore requires that service or execution actually be accomplished by the municipal plaintiffs 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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