November/December 2017 Issue

Also in this issue: New Statute Governing Conditional Use Permits, Variances, and Substandard Lots     |     Court Rules that Fence Law Applies to Cities and Villages     |     Upper Midwest Municipals Move Forward with Major New Solar Project

Limitations on Collecting Attorney Fees for Prosecution of Ordinance Violation

Jared Walker Smith | 12.12.17

Foreiture actions are quasi-criminal proceedings classified by statute as civil actions. See Wis. Stat. §§ 778.01 and 800.02; see also City of Janesville v. Wiskia, 97 Wis. 2d 473, 483 – 84, 293 N.W.2d 522, 527 (1980). Municipalities that prevail in civil actions for prosecution of ordinance violations are able to recover limited costs of the prosecution. Wis. Stat. §§ 800.19(1b) and 800.10(1). For a typical civil action not seeking forfeitures, statutory attorney fees are an item of cost. See e.g., Wis. Stat. § 814.04(1).

However, attorney fees are not recoverable in actions seeking forfeitures for violation of municipal ordinances. With some exceptions, a municipal court has exclusive jurisdiction over all actions seeking to impose a forfeiture for a violation of an ordinance of the municipality that operates the court. Wis. Stat. § 755.045(1). A municipal court cannot impose and collect attorney fees. Wis. Stat. § 814.65(3). When a municipal court’s decision is appealed to the circuit court, attorney fees are not included in the definition of ​“full costs” awarded to a prevailing party, as they were not taxable in the original action. Wis. Stat. § 814.08(1).

When a municipality has not established a municipal court, forfeiture actions are commenced in circuit court under Wis. Stat. ch. 778. Under § 778.20, the municipality must bear the costs of prosecution, including attorney fees, but, unlike ch. 800, a circuit court’s award of statutory attorney fees to a prevailing defendant has been upheld. Town of Perry v. DSG Evergreen F.L.P., 2003 WI App 201, ¶¶ 11 – 13, 267 Wis. 2d 280, 670 N.W.2d 558, 2003 WL 22093607, at *2 (unpublished).

The reasons for the prohibition on the recovery of attorney fees are laid out in Town of Mt. Pleasant v. Werlein, 119 Wis. 2d 90, 349 N.W.2d 102 (Ct. App. 1984). In Mt. Pleasant, the Town requested actual attorney fees, which the court denied for several reasons: 1) attorney fees must be authorized by statute or contract and no statute authorizes actual attorney fees in forfeiture actions; 2) a municipal court cannot impose or collect attorney fees and the action originated in municipal court; 3) the magnitude of the actual attorney fees requested compared to the forfeiture; and, 4) the chilling effect on the right of citizens to appeal forfeitures from municipal court if attorney fees are awarded. Id. at 92 – 94. Due to the quasi-criminal nature of forfeiture actions, and absent explicit statutory allowances, uniform non-allowance of attorney fees to a prosecuting municipality should prevail, whether the action is before a municipal court or a circuit court. See e.g., City of Sheboygan v. Hou-Seye, 171 Wis. 2d 771, n. 4, 495 N.W.2d 103, 1992 WL 430216, at *4 (Ct. App. 1992) (unpublished). 

— Jared Walker Smith