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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
peals to reverse and remand for a new jury trial.
The Phelpses counter that PIC waived its right to a jury trial by failing to timely pay the jury fee as required by the scheduling order and local rule. They also contend that the court of appeals erred in finding excusable neglect that warranted granting PIC's request the morning of trial to enlarge the time to pay the jury fee. According to the Phelpses, the evidence in the record supports affirming the decision of the circuit court to waive the jury trial and proceed with a bench trial instead.
Article I, Section 5 of the Wisconsin Constitution provides that "the right of trial by jury shall remain inviolate." However, that same section makes clear that "a jury may be waived by the parties in all cases in the manner prescribed by law." Wis. Const. art. I, § 5. Wisconsin Stat. §§ 805.01(3) and 814.61 are but two examples of how waiver may be effectuated. Wisconsin Stat. § 805.01(3) provides:
Waiver. The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Meanwhile, Wis. Stat. § 814.61(4), the provision more relevant to this case, states:
Jury fee. For a jury in all civil actions . . . a nonrefundable fee of $6 per juror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury.
(Emphasis added.)
From the language of Wis. Stat. § 814.61(4), it is evident that the failure to pay a jury fee is a basis for finding waiver of the right to trial by jury. Because the venue of this case is Milwaukee County, the time permitted to pay the jury fee is dictated by the court's scheduling order and local court rules. Here, paragraph 9 of the court's scheduling order provides that " ury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived." Milwaukee County Circuit Court Local Rule 371 states that if a party requesting a jury fails to timely pay the fee: " t shall constitute a waiver of the right of jury trial and consent by all parties to a trial to the court sitting without a jury."
This court has previously recognized that a reasonable jury fee does not violate the right of trial by jury as guaranteed by the Wisconsin Constitution. State v. Graf, 72 Wis. 2d 179, 185, 240 N.W.2d 387 (1976). In Graf, we confronted the issue in the context of a civil traffic forfeiture action. We noted that, " ury fees have been rather uniformly found to be compatible with a right to a jury trial." Id. (citing Annot. 32 A.L.R. 865). Furthermore, we quoted the following language as providing a rationale for 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."
Id. (quoting Adams v. Corriston, 7 Minn. 456 (1862)). Accordingly, we held that "prepayment of jury fees and other costs as a condition for a jury trial . . . was not a violation of the Wisconsin Cons
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