Payment of Witness Fees in State v. Brenizer

• Decision Date: 14 September 1993
• Docket Number: No. 93-0065,No. 92,92,93-0065
• Citation: 507 N.W.2d 576,179 Wis.2d 312
• 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. d
• Court: Wisconsin Court of Appeals

Page 576

507 N.W.2d 576

179 Wis.2d 312

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. ^d

No. 93-0065.

Court of Appeals of Wisconsin.

Submitted on Briefs June 21, 1993.

Opinion Released Sept. 14, 1993.

Opinion Filed Sept. 14, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Polk County appeals a trial court order appointing defense experts at county expense in the trial of Bruce Brenizer. The county argues that sec. 977.05, Stats., requires experts be paid by the state public defender (SPD), and that the trial court erred as a matter of law by ordering it to pay for Brenizer's experts. Because we agree with the county, we reverse and remand for entry of an order directing payment through the office of the SPD.

While preparing for Bruce Brenizer's trial for first-degree intentional homicide, his state public defender, John Kucinski, filed motions for Ake experts. ¹ At the time, the SPD had already spent $15,660 on expert assistance. Kucinski's motions were based on the belief that expert assistance was critical to Brenizer's defense and the SPD's refusal to provide additional funds for experts. The motion requested experts be appointed at Polk County's expense.

The court initially entered an order appointing experts and requiring "the State ... and/or Polk County" to pay the expenses. One week later, Polk County corporation counsel moved to intervene and to vacate the portion of the order requiring the county to pay for Ake experts. Kucinski objected, asserting lack of standing and the impropriety of applying the civil intervention statutes to a criminal case. The SPD, as a non-party, asserted that the court lacked jurisdiction over the SPD, asserted the defense of sovereign immunity and argued that Polk County was responsible for the costs of experts. The chief of the trial division of the SPD filed an affidavit stating the SPD had already spent $15,660. At the conclusion of a hearing on the matter, the court entered an order that Polk County pay for the defense experts. Polk County appeals.

We begin by addressing some procedural matters. The SPD argues that this appeal should be dismissed because the county improperly intervened in the trial court. The SPD claims that intervention is a rule of civil procedure inapplicable to criminal trials, and that even if the county could intervene under sec. 803.09, Stats., the county does not meet the statutory requirements in this case.

We need not resolve the intervention arguments. Even if the county cannot intervene in the trial court, it has standing to appeal the order. "A right to appeal from a judgment or order ... is confined to parties aggrieved in some appreciable manner by the court action." Tierney v. Lacenski, 114 Wis.2d 298, 302, 338 N.W.2d 522, 524 (Ct.App.1983). "A person may be an aggrieved party even though he or she is not a named party to the suit if he or she has a substantial interest adverse to the judgment or order." In re J.S.P., 158 Wis.2d 100, 107, 461 N.W.2d 794, 796 (Ct.App.1990). We must liberally construe the law of standing. Bence v. Milwaukee, 107 Wis.2d 469, 478, 320 N.W.2d 199, 203 (1982). The county is aggrieved by the court order appointing experts at the county's expense and therefore has standing to appeal.

The SPD also argues that this appeal is barred by the doctrine of sovereign immunity. The Wisconsin Constitution, art. IV, § 27, provides, "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." The SPD correctly notes this section prevents the state from being sued without its consent. This immunity extends to state agencies. Lister v. Board of Regents, 72 Wis.2d 282, 291, 240 N.W.2d 610, 617 (1976). The SPD reasons that the county's appeal is effectively a suit within the meaning of art. IV, § 27, because reversal of the court's order would place liability for expert witnesses on the SPD. We disagree.

"The principal question raised by an objection based on the state's sovereign immunity is whether the action, in fact, constitutes a 'suit against the state.' " Lister, 72 Wis.2d at 291, 240 N.W.2d at 617. The fact the state is not named as a party defendant does not conclusively establish that the suit is not against the state; the nature of the relief sought is more dispositive than the character of the parties. Id. at 292, 240 N.W.2d at 617. However, the county has not filed a claim or initiated action. The county, in a defensive posture, is merely appealing a court order that, as an aggrieved party, it is entitled to appeal. We decline to characterize an appeal by an aggrieved party as a suit against the state. That the county will prevail on its appeal requiring the SPD to incur statutorily obligated liability does not convert this to a suit against the state.

We next turn to the question of whether the trial court erred as a matter of law by ordering the county to pay the experts' fees. At the hearing on this matter, the court based its decision to make the county pay the experts' fees on its acceptance of the SPD's argument that the legislature had overruled In re Huisman, 167 Wis.2d 168, 482 N.W.2d 665 (Ct.App.1992), with the enactment of sec. 977.05(4r)(a) and (b), Stats. The trial court's determination thus involves a question of law that we review de novo. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

The county argues that sec. 977.05(4)(h) and (i), Stats., and this court's ruling in Huisman are controlling and require the SPD to pay experts' fees. In Huisman, a private attorney, appointed by the SPD to represent an indigent client, hired Ake experts without first seeking SPD approval. The SPD argued it was not responsible for experts' fees when a private attorney hires experts without following Wisconsin Administrative Code procedures. After comparing sec. 753.19, Stats., to sec. 977.05(4)(h) and (i), we concluded that inherent in the SPD's duty to provide legal services under sec. 977.05 is the obligation to provide expert assistance when essential to a criminal defense. Huisman, 167 Wis.2d at 174, 482 N.W.2d at 668. We therefore held the SPD liable for the fees of experts hired by private attorneys, if their use was found essential to the defense, even when the attorney does not first seek approval of the SPD before hiring them. Id. at 175-76, 482 N.W.2d at 668.

Subsequent to Huisman, the legislature a...