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COA botches pro se appeal concerning the waiver of transcript fees for the poor

City of Rhinelander v. Zachary Tyler LaFave-LaCrosse, 2020AP1466-1467, 4/5/22, District 3 (1-judge appeal, ineligible for publication); case activity (including briefs)

This case needs a motion for reconsideration. LaFave-LaCrosse, an unemployed student, appealed convictions for OWI 1st and refusal to take a breath test and moved the circuit court for waiver of transcript fees due to his indigency. The circuit court denied his motion, so he appealed that decision. The court of appeals held that the circuit court made an error of law. But then the court of appeals applied the wrong legal standard to affirm.

Section 814.29(1)(a) provides that a person may prosecute an action without being required to pay fees if the court finds the person is indigent. The court may deny the request if it finds that the person “states no claim, defense, or appeal upon which relief may be granted.” Wis. Stat. §814.29(1)(b). See State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574, 578, 583 N.W.2d 858 (Ct. App. 1998).

The circuit court denied LaFave’s motion to waive transcript fees on the theory that §814.29(1) does not apply to civil proceedings involving traffic regulations.  That is wrong under State ex rel. Girouard v. Circuit Ct. for Jackson Cnty., 155 Wis. 2d 148, 153, 454 N.W.2d 792 (1990), which acknowledges that the statute applies to civil cases. Opinion, ¶8.

Everyone agreed that LaFave-LaCrosse is indigent. The only question was whether he presented an appeal upon which relief could be granted. The court of appeals held that he failed to present an “arguably meritorious claim for relief on appeal” in either his circuit court motion for waiver of fees or in his initial brief on appeal. He did not present “sufficient facts or arguments.” He did not show how the testimony in the unprepared transcript “provides evidence of issues of arguable merit.”  It called his arguments “undeveloped.” Opinion, ¶¶11-13.

Take a closer look at Luedkte, which involved two pro se petitions for certiorari review of prison disciplinary proceedings. The court of appeals had to decide whether they stated claims for purposes of §814.29.  Luedtke held that a pleading is insufficient “only if it is quite clear that under no condition can a plaintiff recover.” Id., 220 Wis. 2d at 578.  This principle applies especially to pro se pleadings because they must be construed liberally. Id. at 579.  As a result:

The court is not obliged to determine from the face of the petition that an error has been committed before it may grant a fee waiver. Rather, the court must grant the fee waiver unless it can conclude from the face of the petition that no error has been committed. Id. at 585. (Emphasis supplied).

In LaFave’s case, the court of appeals appears to have made the very same error that it reversed in Luedtke.  It flipped the burden of proof. It required a pro se litigant to show a meritorious claim for relief, which let’s face it, is impossible without a transcript. Under Leudkte, an appellant should be granted a fee waiver unless the court of appeals, reviewing his pleadings, can conclude that “no error” had been committed.

LaFave’s motion is not available online but his initial appellate brief, which the court of appeals reviewed, is. “Liberally construed,” it states grounds for an appeal. He wrote:

Mr. LaFave-LaCrosse believes the trial court erred with respect that the trial courts judgment holds no application of law and the City of Rhinelander failed to support their obligation of burden of proof. (Initial Brief at 8).

No need for Google translate here! LaFave-Lacrosse alleged that the circuit court failed to apply the law, and the City failed to carry its burden of proof. LaFave-LaCrosse also alleged that “[t]he transcripts are necessary for this appeal to adequately account and recall information that is needed to present this case with accuracy.” (Initial Brief at 9). For his appeal from the denial of his motion waiver of transcript fees, these allegations alone should have been sufficient. Without the transcripts, there is no way the court of appeals could possibly conclude that the circuit court applied the law, and the City carried its burden of proof. Under Luedtke, LaFave-LaCrosse should have received a waiver of transcript fees.

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