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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
January 20, 1999
A party may file with the Supreme Court a
                                                                           Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                           Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                           of Wisconsin              STATS.
No.                                                                        98-1659
STATE OF WISCONSIN                                                         IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF ASSESSMENT OF JURY
FEES AGAINST OFFICE OF STATE PUBLIC
DEFENDER, IN STATE V. CREASER:
OFFICE OF STATE PUBLIC DEFENDERS,
APPELLANT,
V.
CIRCUIT COURT FOR DUNN COUNTY AND THE
HONORABLE EUGENE D. HARRINGTON, PRESIDING,
RESPONDENTS.
APPEAL  from  an  order  of  the  circuit  court  for  Dunn  County:
EUGENE  D.  HARRINGTON,  Judge.     Reversed  and  cause  remanded  with
directions.
Before Cane, C.J., Myse, P.J., and Hoover, J.




No. 98-1659
HOOVER, J.    The State Public Defender’s Office appeals an order
assessing jury fees against it for defense counsel’s failure to formally request an
adjournment of trial until immediately prior to the commencement of voir dire and
for being unprepared to proceed to trial.   The SPD argues that:                              (1) the trial court’s
order represents an erroneous exercise of discretion; (2) the sovereign immunity
doctrine deprived the circuit court of authority to assess jury costs against the
SPD; and  (3) the order was void because the SPD had neither notice nor an
opportunity  to  be  heard.    Because  the  SPD  was  deprived  of  notice  and  an
opportunity  to  be  heard,  we  vacate  the  trial  court’s  order  and  remand  with
instructions to hold a hearing so that the SPD may be heard as to whether a
sanction should be imposed and, if so, as to an appropriate sanction.
This  case  arises  out  of  a  circuit  court  action,  State  v.  Creaser,
No. 97-CF-119, in which Creaser was represented by Bradley Keith of the SPD.
Creaser was charged with interference with custody of a child in violation of
§ 948.31(1)(c), STATS.   Creaser was arraigned on January 23, 1998, and requested
a speedy trial within ninety days.   The jury trial was scheduled for February 25,
1998, before Judge Donna Muza.   Judge Muza disqualified herself on February
16.   On February 19, Judge Eugene Harrington was assigned to the case.
In a phone conference on February 24, 1998, Keith expressed his
concerns regarding the case being scheduled for a one-day trial.   He emphasized
that they originally had two days set aside and, after receiving further discovery
materials,  he  believed  the  trial  could  actually  last  three  days.    Keith  further
stressed that after receiving the discovery materials, he did not know if he was
fully prepared for trial at that point:
I  received  the  discovery  materials  in  the  last  couple  of
weeks and I was in a jury trial and I was at a seminar.   And
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No. 98-1659
the time I had to review them, it appears that there is an
issue with respect to, well, State vs. Felton, the battered
wife syndrome issues that need to be raised.   And also in
the discovery materials  that were sent to me  last week,
there  is  information  concerning  considerable  pretrial
publicity.                                                                               …
…   [And] I discussed this with my client … and she would
not object to an adjournment for an additional time to get
psychological  evaluations  and  to  investigate  further  the
pretrial publicity and to prepare  [a] jury questionnaire or
possibly a motion for change of venue.
The court responded:
Unless  you folks tell me that  you are just not prepared
under any circumstances for whatever reason, and you are
going to say it on the record, we’re going to try this case
tomorrow.   This defendant’s entitled to have her case tried.
That’s, she made the speedy trial demand ….   I’m going to
look  at  State  vs.  Felton  and  if  it’s  imperative  that  the
defendant be permitted to introduce evidence to that effect,
then  I’ll  reconsider  whether  we  ought  to  try  the  case
tomorrow or not .…
Keith again emphasized that he had spoken to his client and she had
requested that he ask for an adjournment to be rescheduled within the ninety-day
time period.   The State did not oppose an adjournment.   The court stated that it did
not have any other openings on its calendar and that “[t]he best time to try this
case  is  starting  tomorrow.”     Later  telephone  conference,  Keith  once  more
requested to postpone the trial:
MR. KEITH:   There isn’t a possibility of selecting the jury
tomorrow and starting the trial next week, is there?
THE COURT:   No, there isn’t.
MR. KEITH:   That’s going to be tough for me.
.…
THE COURT:   We’ve got to do it starting tomorrow and
then try the case.   That’s just the way that the calendar is
structured here.
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No. 98-1659
.…
MR. KEITH:   I did not expect that Judge Muza was going
to disqualify herself.   I was not aware of that.   I knew that
even though we had a speedy trial demand, Judge Muza
would have given a week or two adjournment.   I know she
would have done that.   That’s just the nature --.
.…
MR. KEITH:   I understand, Judge, if you are going to do it,
you are going to do it and I bow my head.   I want you to
know  that  I’m  not  trying  to  jerk  the  court  around  by
bringing this up at the last minute.   Okay?
.…
MR. KEITH:   You understand Mr. Maki doesn’t oppose an
adjournment.
The trial court again responded that Keith was not going to get an adjournment.
The  day  of  trial,  Keith  renewed  his  motion  to  adjourn.    Keith
emphasized to the trial court that he had a busy schedule for the past two months,
and the short notice he had been given due to a new judge being assigned to the
case  had  left  him  unprepared.     Keith  explained  that  he  had  requested  an
adjournment “to allow me to obtain an evaluation and a determination whether we
wish  to  introduce  expert witnesses in this  case  on the  issue  of  battered wife
syndrome.”    Keith  further  apologized  to  the  court  for  not  being  adequately
prepared to proceed to trial; however, he did stress that he felt competent to
proceed  with  jury  selection.    The  court  scolded  Keith  for  compromising  his
client’s constitutional rights as a result of his ineffective time management.          “You
knew a month ago1 you had to try this case today and you didn’t prepare.”   The
court asked the defendant if she wanted to go ahead with trial, and she agreed that
1 The arraignment was on January 23, 1998, at which time a speedy trial was demanded.
Trial was then set for February 25, 1998.
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No. 98-1659
if her attorney was not prepared she did not want to go forward.    The court
adjourned the trial.
On March 13, 1998, without notice, the trial court issued an ex parte
order assessing jury fees against the SPD.   The order stated that defense counsel
did  not  formally  request  an  adjournment  until  immediately  prior  to  the
commencement of the voir dire and was not prepared to proceed with the trial.
The SPD filed a motion to vacate the assessment of jury fees, which was denied by
the trial court, and this appeal ensued.
The circuit court has the inherent power to impose jury costs as a
“power necessarily related to the existence of the courts and to the orderly and
efficient exercise of its jurisdiction.”   Jacobson v. Avestruz, 81 Wis.2d 240, 247,
260 N.W.2d 267, 270 (1977).   The court’s inherent power possesses two primary
features:                                                                              (1)   the power relates to the court’s orderly and efficient exercise of
jurisdiction, and (2) the power must not extend the court’s jurisdiction or abridge
or negate those constitutional rights reserved to individuals.  Id.
The purpose of imposing jury costs is to deter disruptive
practices that contribute to inefficiency in the court system.
As such, an assessment of cost or expense to a county in
calling a jury under sec.  814.51 is akin to a penalty for
conduct disruptive to the administration of justice.
House v. Circuit Court,  112 Wis.2d  14,  17,  331 N.W.2d  859,  860  (Ct. App.
1983).
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No. 98-1659
The SPD first argues2 that imposition of jury costs against it violates
the sovereign immunity doctrine.   The defense of sovereign immunity depends
upon proof that the matter in controversy constitutes a suit brought against the
state.   Polk County v. SPD, 188 Wis.2d 665, 675, 524 N.W.2d 389, 393 (1994).
The  SPD  contends  that  the  circuit  court’s  act  of  sanctioning  it  brought  into
existence a “suit.”   It argues that the trial court “acted as a proxy for the county”
by seeking “to redress an injury on behalf of Dunn County, namely recovery for
the exact costs of the jury ….”
The term “suit” in sovereign immunity cases refers to “legal actions
which seek resolution in a court of law.”   Id. (quoting P.G. Miron Const. Co., 181
Wis.2d  1045,                                                                                        1053,                                   512  N.W.2d  499,  503  (1994)).    We  conclude  that  the
imposition of jury costs is incompatible with the notion of a legal action seeking
resolution  in  court.    Rather  it is calculated                                                   “to deter  disruptive  practices that
contribute to inefficiency in the court system,” House,  112 Wis.2d at  17,  331
N.W.2d at 860, and, as such, is collateral to the legal action in which it arises.
That the county benefits by receiving jury costs reimbursement is similarly an
ancillary consequence.   The act is done for the benefit of court operations, not the
county.   We therefore hold that the SPD is not immune from the imposition of jury
costs.
The SPD contends that forcing it to pay jury costs in connection with
the alleged misconduct of one of its employees cannot possibly further the orderly
and efficient exercise of a court’s jurisdiction.    It suggests that punishing does not
2 The SPD first offers several fact-intensive erroneous exercise of discretion arguments
directed to the propriety of issuing the jury cost order.    Our remand for a hearing on the
appropriateness of imposing jury costs and potentially the nature of order for costs, render these
arguments moot.  Any further review by this court will be of the hearing had upon remand.
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No. 98-1659
create an incentive for the agent to avoid future offending behavior.   The SPD
further questions, emphatically, why it should be liable for its employee’s conduct.
The  SPD’s  arguments  are  without  merit.     The  first  argument,
regarding the inefficacy of the order, is unsupported by any authorities and is
therefore evidently advanced as self-evident.   This court will not consider arguments
unsupported by legal authority.   See State v. Shaffer, 96 Wis.2d 531, 545-46, 292
N.W.2d  370,  378  (Ct. App.  1980).    Nor  does  the  SPD’s  contention  constitute
reasonable, much less compelling, speculation3 concerning the consequences likely
to ensue when an expense is levied against a principal as the result of its employee’s
malfeasance.    In response to its rhetorical question:    why should  “the office be
liable,” (emphasis in original), the case law is replete with examples of employers
being  held  responsible  for  their  agents’  acts.    See,  e.g.,  cases  collected  at
14 WISCONSIN KEY NUMBER   DIGEST Master & Servant, at 131-520 (West 1964
& Supp.  1998).   In addition we note that  § 895.46, STATS., may apply in this
instance and require reimbursement of any costs imposed against an individual
attorney, although we do not so decide.
The SPD finally argues that the trial court erred by failing to provide
notice of the sanction and failing to allow the office to be heard concerning the
sanction.   Whether the trial court violated the SPD’s right to notice and to be heard
is a question of law this court determines independently of the trial court.   See Ball
v. District No. 4, 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
3 We do not address speculative arguments.   State v. Tarantino, 157 Wis.2d 199, 217,
458 N.W.2d 582, 589 (Ct. App. 1990).
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No. 98-1659
In  Anderson  v.  Circuit  Court,  219  Wis.2d  1,  578  N.W.2d  633
(1998),  the  Wisconsin  Supreme  Court  addressed  the  trial  court’s  award  of
sanctions against an attorney who arrived late for a scheduled court appearance.
The court concluded that the trial court erred by failing to adequately set forth on
the record its reasons for imposing sanctions. The court emphasized that for a
reviewing court to determine whether the sanctions were just, it must make a
record of its reasoning.   Id. at 10,  578 N.W.2d at 637.   The trial court should
(1) give the attorney an opportunity to explain his or her actions, (2) address the
disruptive impact on the court’s calendar, (3) address the reasonableness of the
attorney’s explanation, and (4) address the severity of the sanctions to be imposed.
Id.   The court reasoned that “[a]rbitrary action by the circuit court undermines
attorney and public confidence that they will receive fair treatment by the circuit
court.”   Id. at 10, 578 N.W.2d at 636-37.   The court stressed that “characterizing a
power as an inherent power does not excuse a court from developing a record to
support its decision.   Id. at 12, 578 N.W.2d at 637.
With Anderson as guidance, we first conclude that the SPD or its
agent is entitled to notice that the court is considering imposing a form of costs
“akin to a penalty.”   In addition, although the record contains Keith’s reasoning
for  requesting  an  adjournment  and  the  trial  court’s  reluctance  to  grant  a
continuance, the trial court failed to give the SPD an opportunity to address the
relevant factors under Anderson.   Specifically, it failed to give either Keith or the
SPD an opportunity to address whether sanctions were appropriate and, if so, in
what form.   Although the trial court has the inherent power to impose jury costs,
characterizing its power as inherent does not excuse it from developing a record
necessary to support its decision.   Id. at 12, 578 N.W.2d at 637.   Because the trial
court failed to allow the SPD to respond to the sanction, we are unable to conclude
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No. 98-1659
whether the award was just.   See id. at 10, 578 N.W.2d at 637.   Therefore, we
reverse and remand to the trial court with directions to vacate its order imposing
jury costs and to hold a hearing so that the SPD may respond.
By the Court.—Order reversed and cause remanded with directions.
Not recommended for publication in the official reports.
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