Payment of Witness Fees in State v. Brenizer, 92

• Citation: 524 N.W.2d 389,188 Wis.2d 665
• Decision Date: 14 December 1994
• Docket Number: No. 93-0065,No. 92,92,93-0065
• Parties: In the Matter of the PAYMENT OF WITNESS FEES IN STATE v. Bruce BRENIZER, Polk County CaseCF 45. POLK COUNTY, Appellant, v. STATE PUBLIC DEFENDER, Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 389

524 N.W.2d 389

188 Wis.2d 665

In the Matter of the PAYMENT OF WITNESS FEES IN STATE v. Bruce BRENIZER, Polk County Case No. 92 CF 45.

POLK COUNTY, Appellant, v. STATE PUBLIC DEFENDER, Respondent-Petitioner.

No. 93-0065.

Supreme Court of Wisconsin.

Argued Sept. 9, 1994.

Decided Dec. 14, 1994.

For the appellant there was a brief by Joseph P. Guidote, Jr. and Polk County Corp. Counsel, Balsam Lake, and oral argument by Joseph P. Guidote.

Amicus Curiae brief was filed by F. Thomas Creeron, III, Asst. Atty. Gen., and James E. Doyle, Atty. Gen.

Amicus Curiae brief was filed by Robert Horowitz and Stafford, Rosenbaum, Rieser & Hansen, Madison, for Wisconsin Counties Ass'n.

WILCOX, Justice.

This is a review of a published decision of the court of appeals reversing an order of the circuit court that decreed that Polk County was financially responsible for the payment of the "necessary fees and expenses of the defense" in obtaining the assistance of certain expert witnesses on behalf of Bruce Brenizer. See Polk County v. State Public Defender, 179 Wis.2d 312, 507 N.W.2d 576 (Ct.App.1993). The circuit court for Polk County, Honorable James R. Erickson, found that the appointment of certain defense expert witnesses was necessary for the presentation of an adequate defense. The circuit court also found that due process required that the appointment of the experts be paid by Polk County. The court of appeals disagreed, concluding that the State Public Defender (SPD), not Polk County, "must bear the cost of the court-ordered defense experts." Id. at 320, 507 N.W.2d at 579. This conclusion was not challenged by the SPD. The only issue on review before this court is whether the SPD can invoke the defense of sovereign immunity to preclude Polk County from challenging a circuit court order mandating that the county pay for appointed defense experts. We affirm the court of appeals.

This case has both an interesting factual and procedural background. The underlying case involves a criminal action initiated on behalf of the state by the Polk County District Attorney's office against Bruce Brenizer. See State v. Brenizer, Case No. 92 CF 45. On April 13, 1992, Brenizer was charged in a complaint with five counts of first-degree intentional homicide, contrary to sec. 940.01(1), STATS. The case now before us involves a question of civil liability stemming from a circuit court ruling on payment of expert witness fees during the underlying criminal proceeding.

On June 30, 1992, Brenizer's defense attorney, Assistant State Public Defender John A. Kucinski, pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), ¹ petitioned the circuit court of Polk County for an order appointing defense experts in the fields of forensic pathology, anthropology, and dentistry in the case of State v. Brenizer, Case No. 92 CF 45. In the motion, Kucinski asserted that the appointment of these experts was essential to the defense of Brenizer. He also requested that Polk County be held responsible for the payment of any court-appointed experts. On August 13, 1992, Ellen K. Berz, the Chief of the Trial Division of the SPD, sent the circuit court an ex parte letter asserting that "the State Public Defender cannot solely accommodate the monetary requirements of this complex case." Berz then asked the circuit court "that any experts, which you deem justified and necessary to the case, be appointed by you at county expense." On August 20, 1992, the circuit court, ex parte, ordered "that the State of Wisconsin and/or Polk County pay the fair, reasonable, and necessary fees and expenses of the defense in obtaining the assistance of a qualified forensic expert in each of the areas of expertise of odontology, anthropology, and pathology to assist the defense...."

Shortly thereafter, on August 27, 1992, Corporation Counsel for Polk County filed a motion to intervene in the Brenizer case. The Corporation Counsel sought to contest that part of the circuit court's order requiring Polk County to pay for the expert witness fees accrued on behalf of Brenizer. On August 31, 1992, the Polk County District Attorney filed a motion for reconsideration of the circuit court's August 20 order. The District Attorney requested that the circuit court reconsider its determination that the State and Polk County were jointly responsible for Brenizer's expert witness fees. The District Attorney sought an amended order holding the SPD completely responsible for the fees.

On September 2, 1992, Kucinski filed an objection to the intervention of Polk County. He argued that Polk County lacked standing to intervene in the Brenizer case. He also argued that the appointment of defense experts, as set forth in Ake v. Oklahoma, is an ex parte process and, therefore, Polk County did not have to be consulted. Several weeks later, the SPD, asserting itself as a "non-party," submitted a memorandum stating the following five assertions: (1) the circuit court lacks subject matter jurisdiction to order funding from the SPD; (2) the court lacks personal jurisdiction over the SPD since no process was served upon the agency; (3) sovereign immunity precludes the court from ordering the expenditure of funds by the SPD; (4) the court has the inherent authority to appoint and order payment of expert witness fees; and (5) the payment of the expert witness fees is an operating expense of the circuit court properly paid by the county pursuant to sec. 753.19, STATS.

The SPD also filed an affidavit with its memorandum. The affidavit, sworn to by Berz, set forth the monetary considerations for the SPD's "payment of expert witnesses in cases defended by SPD staff attorneys." The affidavit explained that the region containing Polk County budgeted $10,080 in 1992 for the payment of expert witness fees defended by the SPD. The affidavit also stated that the SPD budgeted $40,000 in 1992 for the state-wide homicide fund. This fund could be tapped if the budgeted amount in a certain region was insufficient to cover the expenses relating to the defense of a homicide. Finally, the affidavit noted that the Brenizer case had depleted $9,660 of the $10,080 regional fund, as well as $6,000 of the $40,000 state-wide homicide fund. Thus, by its own admission, the SPD did not completely deplete either the regional fund or the state-wide homicide fund prior to its request that the county pay for the expert witness costs at issue. ²

On September 28, 1992, the circuit court held a hearing to consider the issue of which entity would be held financially responsible for the appointed expert witnesses. Following argument by all interested parties, the circuit court struck the words "the State of Wisconsin and/or" from its August 20 order and ordered that Polk County was solely responsible for the fees and expenses of the defense in obtaining the assistance of various forensic experts.

Polk County subsequently appealed the circuit court's ruling, and the court of appeals reversed. The court of appeals addressed two procedural concerns before eventually concluding that the legislative directives, as well as the case law decision interpreting those directives, mandate that the SPD is responsible for the payment of the expert witnesses that testify at its behest. See Polk County, 179 Wis.2d at 318-20, 507 N.W.2d at 578-79 (citing sec. 977.05(4)(h) and (i), STATS. and In re Huisman, 167 Wis.2d 168, 482 N.W.2d 665 (Ct.App.1992)). First, the court of appeals concluded that Polk County had standing to appeal because it was aggrieved by the circuit court order appointing experts at the county's expense. Polk County, 179 Wis.2d at 316-17, 507 N.W.2d at 578. Second, the court of appeals concluded that Polk County's appeal was not barred by sovereign immunity. Id. at 317, 507 N.W.2d at 578. It is this conclusion that the SPD takes umbrage with on review in this court. Specifically, the SPD presents the following issue for our consideration:

Is Polk County's appeal [of the circuit court's order] a 'suit against the state' within the meaning of Wis. Const. Art. IV, sec. 27, and thereby barred by the doctrine of sovereign immunity? ³

As an initial matter, we recognize that circuit courts are "endowed with all judicial powers essential to carry out the judicial functions delegated to them." State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385, 386 (1929). This judicial power extends to the appointment of counsel for an indigent defendant. See State v. Lehman, 137 Wis.2d 65, 76, 403 N.W.2d 438, 440 (1987) ("The trial court has the authority to appoint counsel whenever in the exercise of its discretion it deems such action necessary.") Further, as noted in State v. Holmes, 106 Wis.2d 31, 40, 315 N.W.2d 703, 708 (1982) (citation omitted): " 'Circuit courts have the incidental power necessary to preserve the full and free exercise of their judicial functions, and to that end may, in appropriate cases, make ex parte orders without formally instituting an action to secure the desired relief.' " Consequently, there is no dispute that the trial court had the authority to appoint expert witnesses in an ex parte manner. Further, there is no contention that the circuit court erroneously exercised its discretion in appointing the expert witnesses.

Article IV, § 27 of the Wisconsin Constitution provides: "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." Both parties recognize that this court has construed this provision to mean that the legislature has the exclusive right to consent to a suit brought against the state and its various agencies. See, e.g., State v. P.G. Miron Const. Co., Inc., 181 Wis.2d 1045, 1052, 512 N.W.2d 499, 503 (1994); Fiala v. Voight, 93 Wis.2d 337, 342, 286 N.W.2d 824, 827 (1980); Metzger v. Department of Taxation, 35 Wis.2d 119, 132, 150 N.W.2d 431, 438 (1967). Both parties also recognize that the effect of a defense based on...