Municipal Law Alert, October 2009
Municipal courts are specially-created by towns, villages or cities to hear ordinance violation cases. If a municipality does not have a municipal court, an ordinance violation, such as a citation issued by a municipal police officer, will be prosecuted in circuit court in the county in which the municipality is located. According to the Wisconsin Court System website, as of May 2008, there were 252 municipal courts and 254 municipal judges in Wisconsin. Milwaukee has the largest municipal court, with three full-time judges and three part-time court commissioners handling more than 240,000 cases annually.
In Wisconsin, cases commonly heard by municipal courts are first-time Operating While Intoxicated (OWI) offenses. Wisconsin is the only state where a first offense OWI is an ordinance violation, not a criminal offense. Other frequently-heard cases are juvenile matters, such as truancy, underage drinking, drug offenses and curfew violations. In fact, municipal courts handle a significant portion of the statewide court caseload in these areas. Thus, municipal courts are an important part of the overall court system in Wisconsin, relieving the burden that would otherwise fall on circuit courts.
Creating municipal courts
A municipality’s authority to create a municipal court is statutory: “[A municipal] court shall become operative and function when the city council, town board or village board adopts an ordinance or bylaw providing for the election of a judge and the operation and maintenance of a court.” Wis. Stat. § 755.01(1).
A municipality may create its own court system or may join another neighboring municipality to form one court. If multiple municipalities choose to create one court, there are special rules. First, the contracting municipalities need not be contiguous or in the same county. Second, the municipalities joining to form one court must enact identical ordinances. Wis. Stat. § 755.01(4). Finally, one municipality may contract with another municipality for services for the joint exercise of power to enforce the ordinances of the municipality. Wis. Stat. § 66.0303.
Members of the municipal courts
A municipality creating a municipal court will need to fill (and fund) a number of positions.
Municipal Judge: The municipal judge is elected by the voters of the municipality to a term of two to four years. The municipal judge must be a resident of the municipality. In the case of a municipal court governing multiple municipalities, residents from all the municipalities elect the judge. While some municipal judges are lawyers, a municipal judge does not have to be licensed to practice law in the State of Wisconsin. The municipality’s board (city council, town board, or village board) sets the judge’s salary.
Municipal Court Clerk: In addition to the municipal judge, the court must also have a municipal court clerk. The municipal court clerk is responsible for the day-to-day management of the municipal court. The municipal court clerk sets the court schedule and collects and files all court documents. The clerk collects the forfeiture, costs, fees and surcharges from defendants. The clerk then turns those monies over to the municipal treasurer, along with a report of the title, nature of offenses and total amount of judgments imposed in actions and proceedings in which the monies were collected. The clerk is present at all court hearings and keeps a record of those proceedings. The municipal judge appoints the court clerk. The clerk’s salary is set by the municipal board.
Municipal Prosecutor: In addition to the judge and clerk, a municipal court must have a municipal prosecutor. The municipal prosecutor is hired by the municipality to prosecute the ordinance violation citations. The municipal prosecutor need not be present during the initial appearances, the hearings where an individual who was issued a citation (defendant) may appear to enter a plea to his or her citation. Prosecutors may hold pretrial conferences following an initial appearance to discuss a citation with a defendant and potentially negotiate a deal. The prosecutor also appears at all motion hearings and trials when a municipal citation is contested. Essentially, the municipal prosecutor represents the municipality’s interest in the prosecution of citations. Usually, municipal prosecutors are private attorneys who contract with municipalities to perform these duties.
Police Department/Other Municipal Officials: A municipal court case is initiated by a citation, which may be issued by the municipal police department or another municipal official. Who has authority to issue citations for specific ordinance violations is delineated in the municipality’s ordinances. The issuing officer or official will also be involved in the prosecution of the citation, including testifying at motion hearings or trial if the citation is contested.