Portage County v. Steinpreis

• Decision Date: 03 November 1981
• Docket Number: 80-038,Nos. 80-037,s. 80-037
• Parties: COUNTY OF PORTAGE, Plaintiff-Respondent, Petitioner, v. Robert J. STEINPREIS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 731

312 N.W.2d 731

104 Wis.2d 466

COUNTY OF PORTAGE, Plaintiff-Respondent, Petitioner, v. Robert J. STEINPREIS, Defendant-Appellant.

Nos. 80-037, 80-038.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 10, 1981.

Decided Nov. 3, 1981.

Miriam J. Rohrer, Asst. Dist. Atty., Stevens Point, for plaintiff-respondent, petitioner.

Robert J. Steinpreis, Waupaca, pro se.

COFFEY, Justice.

This is a review of a decision of the court of appeals, 98 Wis.2d 748, 297 N.W.2d 515, reversing judgments of the Circuit Court for Portage County, HON. JAMES H. LEVI, presiding. ¹ These judgments were entered after the trial court denied the motion of the defendant-appellant, Robert J. Steinpreis, to declare sec. 299.21, Stats. 1977, ² unconstitutional in that it required the prepayment of a jury fee and costs upon the filing of a demand for a jury trial in a small claims action. The court of appeals reversed the trial court and found the statute unconstitutional holding that the required prepayment of the jury fee violated the equal protection clauses of both the federal and state constitutions.

The county of Portage, plaintiff-respondent-petitioner, (hereinafter county), filed two small claims complaints, ³ both alleging that Steinpreis owed $34.25 plus filing fees for separate ambulance services provided by the county. (Total claim: $83.50). Steinpreis filed an answer and denied he owed the money and requested a jury trial. Shortly after filing his answer, Steinpreis received a letter from the Portage county clerk of courts demanding a $43 payment to the court to cover the suit tax, clerk's fee and jury fee ($24) due, pursuant to sec. 299.21, Stats. 1977. ⁴ Steinpreis refused to pay the required fees pending appeal, stating that he feared that payment of the same would make his challenge to the statute moot. Steinpreis then filed a motion challenging the constitutionality of sec. 299.21, Stats. He alleged that it denied either the right to a jury trial under the Wisconsin Constitution, art. I, sec. 5 and/or equal protection as guaranteed by both the federal and state constitutions. After argument, the trial court denied the motion. At trial he offered no defense to the small claims complaints and agreed to the immediate entry of a judgment in order to facilitate an appeal. An amended judgment in favor of the county was entered on December 3, 1979. ⁵

The court of appeals reversed the trial court's finding of constitutionality and held that the jury fee required under sec. 299.21(3)(c), Stats., was a denial of equal protection and thus unconstitutional. The court reasoned that since no jury fee is required if a jury demand is made in a chs. 801-807 proceeding and since they could find no rational basis for this difference in the procedures of chs. 801 to 807 and those of ch. 299, there was a denial of equal protection. The court of appeals did not reach the remaining issues.

Issues

1. Does sec. 299.21(3), Stats. 1977, violate the right to a trial by jury protected under art. I, sec. 5 of the Wisconsin Constitution?

2. Does sec. 299.21(3), Stats. 1977, constitute a "purchase of justice" as prohibited under art. I, sec. 9 of the Wisconsin Constitution?

3. Does sec. 299.21(3), Stats. 1977, constitute a denial of the equal protection of law as guaranteed under both the Wisconsin and Federal Constitutions?

4. Is the challenge to the constitutionality of the fees set out in sec. 299.21(3), Stats. 1977, moot?

Right to a Jury Trial

The Wisconsin Constitution, art. I, sec. 5, preserves the right to a jury trial in civil actions as follows:

"Trial by jury; verdict in civil cases. SECTION 5. (As amended Nov. 1922) The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law...."

"This provision has been construed to mean that the right of trial by jury, as known to the law at the time of the adoption of our constitution, is to be preserved." State v. Graf, 72 Wis.2d 179, 184, 240 N.W.2d 387 (1976). See also: La Bowe v. Balthazor, 180 Wis. 419, 420, 193 N.W. 244 (1923); Norval v. Rice, 2 Wis. 17 (*22), 22 (*29) (1853). Under the territorial statutes of Wisconsin, a party recovering a jury verdict was required to pay a fee into the court before the court's declaration of the verdict. ⁶

"Undoubtedly they (the occupants of the territory of Wisconsin) conceived this provision of the constitution as securing their established right to a jury trial in legal actions, a right which at that time bore the coordinate responsibility of being subject to a reasonable share of the expense incurred in obtaining a jury of their fellow citizens...." State v. Graf, 72 Wis.2d 179, 186, 240 N.W.2d 387 (1976).

As early as 1915 this court approved of the requirement of a jury fee holding that it doesn't infringe upon the constitutional guarantee of a jury trial. Reliance Auto Repair v. Nugent, 159 Wis. 488, 490, 149 N.W. 377 (1915). This court stated:

"The requirement that the party demanding a jury shall pay into court a jury fee of $12, to be recovered by him in the cost bill if successful in the action, is not an unreasonable regulation of the right, nor is it an invasion of sec. 9, art. I, of the constitution, which provides that 'every person ... ought to obtain justice freely, and without being obliged to purchase it.' " Id. at 490, 149 N.W. 377.

Since that time, this court has consistently held that a reasonable jury fee is constitutional. La Bowe v. Balthazor, supra 180 Wis. at 422, 193 N.W. 244; State v. Graf, supra 72 Wis.2d at 185, 240 N.W.2d 387.

Our interpretation of the right to a jury trial is consistent with decisions of other jurisdictions which have almost uniformly found reasonable jury fees to be compatible with the right to a trial by jury. See : Anno. 32 ALR 865. In State v. Graf, supra, we quoted the following language as providing a succinct rationale for the allowance of such fees:

"The Constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law, or impede the due administration of justice." quoting Adams v. Corriston, 7 Minn. 456 (1862). Id. at 185, 240 N.W.2d 387.

Although the Wisconsin Constitution establishes a right to a tuition free public education (art. X, sec. 3), we have held that the public schools may charge fees for the use of books and items of a similar nature without violating that right. Board of Education v. Sinclair, 65 Wis.2d 179, 182, 222 N.W.2d 143 (1974). Our holding that the requirement of a reasonable jury fee does not violate the right to a jury trial likewise is consistent with that decision.

Many additional costs are incurred when a jury trial is demanded. A share of these costs must be paid by the litigants or all must be paid with government tax revenues. It is only fair that the litigants bear a reasonable portion of the expense incurred due to the exercise of their rights unless determined by the court to be indigent. One should not be entitled to exercise his constitutionally protected rights at the expense of others if financially able to bear his share of the costs. One's exercise of constitutional rights is not unduly burdened by the imposition of such reasonable costs. Surely one exercising the freedom of speech is not constitutionally entitled to the free use of printing presses or communications media. Similarly, one demanding a jury trial is not entitled to avoid paying any of the costs of the jury.

The general constitutionality of jury fees such as those required under sec. 299.21(3), Stats. 1977, is clear under the decisions discussed above. This court, however, has recognized that there are limits beyond which the legislature may not go in imposing such fees. La Bowe v. Balthazor, supra 180 Wis. at 422, 193 Wis. 244. That limit has been described as the point at which the fee becomes "an unreasonable regulation of the right." Reliance Auto Repair Co. v. Nugent, supra 159 Wis. at 490, 149 N.W. 377. Because of this limit, the role of a court when a jury fee is challenged "is to review the fee for that excessiveness which would impair the right." State v. Graf, supra 72 Wis.2d at 186, 240 N.W.2d 387. With this standard in mind, we analyze the jury fee imposed under sec. 299.21(3), Stats. 1977.

Of the $43 court fee demanded, $19 represented a suit tax and clerk's fee and the additional $24 constituted a jury fee. That assessment was made under sec. 299.21(3)(c), Stats. 1977:

"(c) The fee for a jury is $24, plus an additional amount as suit tax which will result in a suit tax payment of the amount which would have been payable had the action been commenced under chs. 801 to 807 and additional clerk's fees of $6." ⁷

By the terms of the statute itself, it is obvious that the additional suit tax and clerk's fee are merely intended as a cost assessment equivalent to that which would be required in an action initiated under chs. 801 through 807, Stats. Under sec. 299.21(4), Stats. 1977, the small claims action is treated as a chs. 801 to 807 action once a jury demand is made. After the jury demand is made, the action becomes the same as one commenced under chs. 801 to 807, and, therefore, it is reasonable that similar fees be paid to the court. The clerk's fee imposed in a chs. 801 to 807 proceeding has remained the same since 1953 and the suit tax has not changed since 1969. ⁸ In light of the fact that these fees have remained constant while the costs of running a courtroom have soared, they cannot be considered excessive, much less unreasonable. The fees are insignificant when compared to the actual cost of the courtroom procedures. We hold that the additional suit tax and clerk's fee imposed under sec. 299.21(3)(c), Stats. 1977, is...