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2000 Wisconsin Attorney General Reports and Opinions 1 (2000)

handle is hein.sag/sagwi0027 and id is 1 raw text is: STATE OF WISCONSIN DEPARTMENT OF JUSTICE JAMES E. DOYLE 114 East, State Capitol ATTORNEY GENERAL P.O. Box 7857 Madison, WI 53707-7857 Burneatta L. Bridge Deputy Attorney General January 28, 2000 OAG - 1 - 00 Mr. J. Denis Moran Director of State Courts Supreme Court of Wisconsin 119 Martin Luther King Jr. Blvd., Room LL2 Madison, WI 53703 Dear Mr. Moran: You ask my opinion concerning whether circuit courts may, by blanket order, allow motion costs under Wis. Stat. § 814.07 on all motions brought to open a judgment entered on a forfeiture action under Wis. Stat. § 345.37. A COURT MAY NOT BY BLANKET ORDER IMPOSE WIS. STAT. § 814.07 COSTS ON ALL WIS. STAT. § 345.37(1)(b) MOTIONS. Wisconsin Stat. § 814.07 costs may be allowed on a motion in the discretion of the court or judge. Discretion contemplates a process of reasoning. McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971). Wisconsin Stat. § 345.37(1)(b) specifies criteria a court must evaluate when considering a motion to open the judgment. The court must determine whether the failure to appear was due to mistake, inadvertence, surprise or excusable neglect. The process of discretion depends on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards. McCleary, 49 Wis. 2d at 277. State v. Smith, 203 Wis. 2d 288, 299, 553 N.W.2d 824 (Ct. App. 1996) is instructive. It involved a trial court's blanket ruling rejecting prior conviction evidence for impeachment purposes under Wis. Stat. § (Rule) 906.09. The trial court did not individualize to each witness its analysis of the factors to be weighed in the balancing test under Wis. Stat. § (Rule) 906.09(2) to determine whether the probative value of the prior conviction evidence was substantially outweighed by the danger of unfair prejudice. The Smith court found that a blanket ruling, while expedient and consistent, fails to show a consideration of the proper factors with respect to each witness, and thus, is an erroneous exercise of discretion. Smith, 203 Wis. 2d at 299, citing McCleary, 49 Wis. 2d at 277-78. See also State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981).

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