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Capitol rotunda singer gets civil pre-trial discovery in State’s action to collect forfeiture

State v. Anica C. C. Bausch, 2014 WI App 12; case activity

Bausch participated in a “Solidarity Sing Along” at the State Capitol in the fall of 2012.  The Capitol Police cited her for violating Wis. Admin. Code ADM sec. 2.14(2)(v). Bausch pled “not guilty” and served the State with requests for admissions, interrogatories, and production of documents.  The State responded with a “Motion in Opposition to Application of Civil Discovery.”

Issue:  Whether Chapter 804 civil discovery procedures apply in an action to recover a forfeiture commenced by a §778.25 citation.

If the answer to this question were obvious, the court of appeals wouldn’t need to trek through several provisions of Chapter 778 (forfeitures), Chapter 799 (small claims), and a footnote to a 30-year old supreme court case to reach it.  See County of Portage v. Steinpreis, 104 Wis. 2d 466, 482 n.15, 312 N.W.2d 731 (1981).  That’s not to suggest the decision is incorrect.  Rather, you just might want to have a GPS unit handy when retracing the court’s steps in this decisions or you’ll get lost.

Cutting to the chase, according to the court of appeals,  § 799.01(1)(b) provides that unless a different procedure is prescribed in Ch. 778 or elsewhere, civil procedure statutes apply to forfeitures governed by Chapter 778.  Slip op. ¶6.  This conclusion compels an application of the “different-procedure-prescribed”test established by State v. Ryan, 2012 WI 16, 338 Wis. 2d 695, 809 N.W.2d 37, which requires a determination of: (1) whether the legislature provided for a different discovery procedure; and (2) whether § 778.25 procedures can be reconciled with civil discovery procedures.  Spoiler alert!  The answer to both questions is “no.”  See for yourself at slip op. ¶¶10-24.  Thus, the court of appeals reversed the circuit court decision and remanded the case so that Bausch may conduct discovery pursuant to Chapter 804.

Bausch’s initial brief points out that the Wisconsin Attorney General is prosecuting hundreds of forfeiture citations issued in the final months of 2012.  The State has filed nearly identical motions opposing civil discovery in numerous pending Dane County Circuit Court cases.  Apart from an earlier Attorney General Opinion, which supports Bausch not the State (awkward) there apparently are no published appellate decisions on this issue–at least not until this case.  See 77 Wis. Op. Att’y Gen. 270-71 (1988).

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