814.29 Security for costs, service and fees for indigents.

(1)

(a) Except as provided in sub. (1m), any person may commence, prosecute or defend any action or special proceeding in any court, or any writ of error or appeal therein, without being required to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding, or any writ of error or appeal therein, or to give security for those costs.

(b) A person seeking an order under par. (a) shall file in the court an affidavit in the form prescribed by the judicial conference, setting forth briefly the nature of the cause, defense or appeal and facts demonstrating his or her poverty.

(c) The finding and order of the court under par. (a) shall be in the form prescribed by the judicial conference. The court may deny the request for an order if the court finds that the affidavit states no claim, defense or appeal upon which the court may grant relief.

(d) The court shall make a finding of poverty and issue an order under par. (a) if the affidavit demonstrates any of the following:

1. That the person is a recipient of means-tested public assistance, including aid to families with dependent children, relief funded by a relief block grant under ch. 49, relief provided by counties under s. 59.53 (21), medical assistance, supplemental security income, food stamps or benefits received by veterans under s. 45.40 (1m) or under 38 USC 1501 to 1562.

2. That the person is represented by an attorney through a legal services program for indigent persons, including, without limitation, those funded by the federal legal services corporation, the state public defender or volunteer attorney programs based on indigency.

3. That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal or to give security for those costs. In determining the person's ability under this subdivision to pay or give security for fees and costs, the court shall consider the person's household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC 9902 (2).

(1m)

(a) In this subsection, “prisoner" has the meaning given in s. 801.02 (7) (a) 2.

(b) If a prisoner makes a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs, the prisoner shall submit all of the following:

1. The affidavit required under sub. (1) (b).

2. A certified copy of the trust fund account statement for the prisoner for the 6-month period immediately preceding the filing of the request for leave to commence or defend an action, special proceeding, writ of error or appeal, or for the period that the prisoner was incarcerated, imprisoned or detained, if that period is less than 6 months. The trust fund account statement must be obtained from the appropriate official at each facility in which the prisoner is or was incarcerated, imprisoned, confined or detained. “Trust fund account statement" includes accounts accessible to the prisoner before or upon release.

(c) Except when dismissal is required under s. 801.02 (7) (d), the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without the prepayment of fees or costs or without being required to give security for costs if all of the following conditions are met:

1. The court determines that the prisoner does not have assets or other means by which to pay the fees or costs or to give security for the costs after reviewing the information provided under par. (b).

2. The prisoner authorizes in writing the agency having custody of the prisoner's prison trust fund account to forward payments from the prisoner's account to the clerk of court each time the amount in the account exceeds $10 until the fees or costs are paid in full.

(d) If the court determines that the prisoner who made the affidavit does have assets in a trust fund account, whether accessible to the prisoner only upon release or before release, the court shall order an initial partial filing fee to be paid from that trust fund account before allowing the prisoner to commence or defend an action, special proceeding, writ of error or appeal. The initial filing fee shall be the current balance of the prisoner's trust fund account or the required filing fee, whichever is less.

(e) The agency having custody of the prisoner shall freeze the prisoner's trust fund account until the deposits in that account are sufficient to pay the balance owed for the costs and fees. When the deposits in that account are sufficient to pay the balance owed for the court costs and fees, the agency shall forward that amount to the court. This paragraph does not prohibit the payment from the prisoner's trust fund account of court-ordered payments for child or family support, restitution or federal court fees or for the payments of debts owed to the department of corrections.

(f) If the court believes that a prisoner is in imminent danger of serious physical harm, the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without being required to submit the statement under par. (b) or prepaying the initial partial filing fee under par. (d).

(g) Except as provided under par. (f), if a prisoner files an action, special proceeding, writ of error or appeal under this subsection without complying with the requirements under pars. (b) and (d), the court shall dismiss the action, special proceeding, writ of error or appeal without prejudice.

(h) The custodian of the trust fund account of a prisoner shall provide the prisoner with the certified copy of the trust fund account statement required under par. (b) if the custodian determines that the prisoner requires that copy for submittal to a court under this subsection.

(2) The court may dismiss any action or proceeding or may require the payment of, or the giving of security for, costs, fees and service if the court determines that the allegation of poverty is untrue. The court may later require the payment of, or the giving of security for, costs, fees and service if the court determines that the person no longer meets any of the requirements under sub. (1).

(3) Recovery of fees.

(a) A request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent of the affiant and counsel for the affiant that if the judgment is in favor of the affiant the court may order the opposing party to first pay the amount of unpaid fees and costs, including attorney fees under ss. 802.05, 804.12 (1) (c), and 895.044 and under 42 USC 1988 and to pay the balance to the plaintiff.

(b) If the affiant is a prisoner, as defined in s. 801.02 (7) (a) 2., or a person confined in a federal correctional institution located in this state, a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent as provided in par. (a), and, if the judgment is in favor of the opposing party, constitutes consent for the court to order the institution to deduct the unpaid fees and costs, including attorney fees listed in par. (a), from the amount in the inmate's account at any time the account has sufficient money to pay the unpaid fees and costs. This paragraph does not prevent the collection of the unpaid fees and costs by any other method.

History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.29; 1981 c. 317; 1983 a. 538; 1989 a. 31; Sup. Ct. Order No. 93-15, 179 Wis. 2d xxxi; 1993 a. 490; 1995 a. 27, 201; 1997 a. 133; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2005 a. 22; 2009 a. 113; 2011 a. 2; 2017 a. 366.

Judicial Council Note, 1993: The amendments to sub. (1) are intended to simplify and make more uniform the procedure for determining when costs and fees for indigent persons should be waived by the court. The form of the affidavit and court finding and order is to be prescribed by the Judicial Conference. To simplify the determination of indigency, detailed financial statements are not necessary if the person is receiving means-tested public assistance or legal services based on indigency. Amended sub. (2) allows the court to require payment of fees if it is later shown that the person is no longer indigent.

The trial judge may refuse to approve an affidavit of indigency if the complaint or affidavit to obtain waiver of costs and fees fails to give notice of a claim upon which relief may be granted. State ex rel. Rilla v. Dodge County Circuit Court, 76 Wis. 2d 429, 251 N.W.2d 476 (1977).

The bond requirement under s. 775.01 in an action against the state may be waived under s. 814.29 (1). Boldt v. State, 101 Wis. 2d 566, 305 N.W.2d 133 (1981).

A judge may waive the fee for a trial transcript at the request of an appealing indigent who has arguable reason to believe that he or she is entitled to redress on appeal. Girouard v. Jackson County Circuit Court, 155 Wis. 2d 148, 454 N.W.2d 792 (1990).

In making a Girouard determination, the trial court should specifically consider the litigant's income and assets, expenses, including unusual expenses, and the projected cost of the transcript requested. State v. Jacobus, 167 Wis. 2d 230, 481 N.W.2d 642 (Ct. App. 1992).

Whether a proposed petition or complaint states a claim for the purposes of granting fee waiver is determined using the same standard that is applied to motions to dismiss for failure to state a claim under s. 802.06. State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574, 583 N.W.2d 858 (Ct. App. 1998), 97-3238.

The definition of “prisoner" in s. 801.02 (7) (a) 2. does not include a Wisconsin inmate sent to an out-of-state county jail, and therefore sub. (1), and not sub. (1m), applies to the inmate. State ex rel. Speener v. Gudmanson, 2000 WI App 78, 234 Wis. 2d 461, 610 N.W.2d 136, 99-0568.

Sub. (1m) (c), as applied to the petitioner, did not violate the constitutional guarantees of access to the courts or equal protection. State ex rel. Khan v. Sullivan, 2000 WI App 109, 235 Wis. 2d 260, 613 N.W.2d 203, 99-2102.

The 45-day deadline for filing a certiorari action under s. 893.735 is tolled once the clerk of court receives a petition for a writ of certiorari and, pursuant to sub. (1m), a request for a fee waiver, affidavit of indigency, and certified copy of the prisoner's trust account statement, provided that the prisoner has authorized the prison to make any appropriate payments toward the filing fees from his or her accounts. State ex rel. Steldt v. McCaughtry, 2000 WI App. 176, 238 Wis. 2d 393, 617 N.W.2d 201, 99-2000.

Sub. (1m) survives constitutional scrutiny. Freezing prisoner trust account statements to pay for the costs of civil litigation initiated by the prisoner is a rational means of conserving state resources and deterring frivolous litigation. Lindell v. Litscher, 2003 WI App 36, 260 Wis. 2d 454, 659 N.W.2d 413, 02-1389.

The phrase “costs and fees" in sub. (1m) includes costs for preparing transcripts. A prisoner may use the funds in a prison release account to pay for the cost of having transcripts prepared. The agency having custody of the prisoner shall follow the procedure under sub. (1m) (e). Akbar v. Kronzer, 2004 WI App 108, 273 Wis. 2d 749, 681 N.W.2d 280, 03-3148.