Romasko v. City of Milwaukee

321 N.W.2d 123, 108 Wis. 2d 32, 1982 Wisc. LEXIS 2748
CourtWisconsin Supreme Court
DecidedJuly 2, 1982
Docket81-230
StatusPublished
Cited by18 cases

This text of 321 N.W.2d 123 (Romasko v. City of Milwaukee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romasko v. City of Milwaukee, 321 N.W.2d 123, 108 Wis. 2d 32, 1982 Wisc. LEXIS 2748 (Wis. 1982).

Opinions

HEFFERNAN, J.

This is a review of an unpublished court of appeals’ decision dated October 23, 1981, which affirmed the order of the circuit court for Milwaukee county, ROBERT J. MIECH, Circuit Judge, which denied Attorney Paul E. Feldner’s petition for the payment of fees by Milwaukee county for his services rendered to the court as an appointed guardian ad litem for the indigent minor, David T. Morgan, in a personal injury action

The facts of the underlying action are not included in the record on this review. The underlying action, however, as revealed by the docket entries, which are in the record, shows that a personal injury action was commenced by Jay Romasko and others against the city of Milwaukee, the Golden Rule Bus Line, and an insurer in September of 1977. One of the defendants was David T. Morgan, a minor born January 23,1970.

On November 20, 1978, the trial court granted the plaintiff’s motion for the appointment of a guardian ad litem for the minor defendants. Originally, Attorney Kenneth Guy was appointed to represent David Morgan. However, the docket entries indicate that, on April 7, 1980, Attorney Paul E. Feldner, the petitioner in this case, was appointed, apparently in substitution, as guardian ad litem. Feldner was appointed by the circuit court pursuant to secs. 803.01(3) (a) and 757.48(1), Stats.1

[34]*34The case went to trial before a jury in April of 1980. At the close of a three-week trial but prior to oral argument, Morgan was dismissed without prejudice and without costs. A verdict in excess of $40,000 was returned against other defendants. Subsequently, the guardian ad litem petitioned the trial court to order Milwaukee county to pay his fees as guardian ad litem. He itemized his services and asked that he be compensated in accordance with a fee schedule established by the rules of the Wisconsin Supreme Court as set forth in SCR 81.01 and SCR 81.02.2

[35]*35On January 29, 1981, after a hearing in which Milwaukee county appeared by its attorney, the circuit court denied the allowance of fees. The court stated that, pursuant to sec. 803.01(3), Stats., it was required to appoint a guardian ad litem and, furthermore, that sec. 757.48 (1) provided that a guardian ad litem be allowed reasonable compensation for his services. In his oral decision from the bench, the circuit judge refused to order Milwaukee county to pay the fee. The judge stated that the services had been competently performed pursuant to the court order, and said that he had no doubt that Feldner should be paid. He was, however, unable to find any statute which gave:

“. . . indication as to who shall pay for the services rendered.
. . in good conscience I feel that you are entitled to consideration for the services that you rendered on behalf of your ward, but I just can’t in good conscience find any specific section of the statute that I could rely on, and the closest you have is that operating costs section on [36]*36753.19, but I have to agree with [counsel for Milwaukee county] that I feel it relates to the operative functions of the court insofar as ordering supplies and materials and books and air conditioners or whatever. There ig no doubt that you put in the time for those three weeks that we were engaged in litigation, and there is no doubt that you should be compensated, but the big question is — by whom?”

An order was entered on January 29, 1981, denying Feldner’s request that Milwaukee county pay him for services as a guardian ad litem. Appeal from that order was taken to the court of appeals on February 2, 1981. The initial response of Milwaukee county was to move to dismiss for lack of subject matter jurisdiction. This motion was denied, and it has not been renewed in this court.

The court of appeals affirmed the circuit court order in an unpublished per curiam decision. The court of appeals acknowledged the finding of the circuit court that the appointment of a guardian ad litem was mandated and necessary, but held that the legislature had not designated the manner of payment of the fees. The court of appeals concluded that Feldner’s reliance on SCR 81.01 was misplaced, because that rule is operative only where a fee is fixed by statute. It was unable to find such statute.

The court of appeals also disposed of Feldner’s reliance on sec. 753.19, Stats., because, it concluded, that section details only the manner of providing the courts of Milwaukee with equipment and personnel for the operation of the courts. It held that neither the court rule nor the statute authorized the court to order Milwaukee county to pay the guardian ad litem’s fees. This void in the statute, it held, would have to be corrected by the legislature and not by the courts.

We conclude on this review that, under the applicable statute, where a guardian ad litem is appointed by a [37]*37court to represent an indigent minor and no specifically applicable provision for payment of fees appears in the statute, the county of venue must pay those fees. Accordingly, we reverse and remand to the circuit court to enter an order directing Milwaukee county to pay Attorney Feldner the guardian ad litem fees as found to be reasonable by the circuit court.

In reaching this conclusion we start with the general policy consideration that minors are the special objects of the solicitude of the courts and of government generally. This policy is reflected in the legislative enactment, sec. 803.01(3) (a), Stats., which specifically imposes the obligation on the court to appoint a guardian ad litem in any action or proceeding involving a minor where no general guardian appears. The necessity for a guardian ad litem in the underlying action is not questioned. Sec. 803.01 (3) (c) provides that a proceeding or action brought against a minor not represented by a guardian or guardian ad litem is voidable upon motion. Under the statutory scheme devised by the legislature, the appointment of a guardian ad litem is necessary for the validity of a court’s order and is required to assure the integrity of its processes. The purpose in appointing a guardian ad litem then is not limited to the services that may be rendered to the ward. The guardian ad litem’s service is rendered to the system of justice and, more specifically, to the particular court and the county in which an action is venued. The public purpose mandating the appointment of a guardian ad litem is shown by the statement appearing in Richardson v. Tyson, 110 Wis. 572, 578, 86 N.W. 250 (1901) :

“As most fundamental among these [underlying principles it] must be borne in mind that the infant is always the ward of every court wherein his rights or property are brought in jeopardy, and is entitled to most jealous care that no injustice be done him. The guardian ad litem is appointed merely to aid and enable the court to perform that duty of protection.”

[38]*38See generally, Hohmann and Dwyer, Guardians ad Litem in Wisconsin, 48 Marquette Law Rev. 445 (1965).

Thus, the guardian ad lüem’s

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Romasko v. City of Milwaukee
321 N.W.2d 123 (Wisconsin Supreme Court, 1982)

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Bluebook (online)
321 N.W.2d 123, 108 Wis. 2d 32, 1982 Wisc. LEXIS 2748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romasko-v-city-of-milwaukee-wis-1982.