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Defense win: Equitable tolling doesn’t apply to statute of limitation for filing forfeiture action

Town of Waterford v. Christopher Pye, 2019AP737, 5/6/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects the municipality’s argument that the doctrine of equitable tolling applies to the two-year statute of limitation for bringing a forfeiture action.

In June 2014 Pye was cited for first-offense OWI causing injury, first-offense operating with a prohibited alcohol content, and inattentive driving. Because of the causing-injury allegation, the OWI and PAC were charged as crimes in circuit court. But under the statute in effect in at the time of the offense (and since amended), “injury” required proof of “substantial bodily harm.” The victim’s injuries here didn’t meet that definition, so the criminal charges were dismissed. (¶¶2-4).

That dismissal came just days before the expiration of the two-year statute of limitation for forfeiture offenses under § 893.93(2)(b). The arresting officer learned of the dismissal a couple of months later, and prompted the municipality to file new OWI and PAC citations. Pye moved to dismiss because the statute of limitation had expired, but the municipal and circuit courts agreed with the municipality that the two-year limitation was equitably tolled. (¶¶5-7). The court of appeals reverses.

“Equitable tolling” is a remedy that allows an action to proceed when justice requires it, even though a statutory time period has elapsed. Its application turns on such considerations as whether there was excusable delay by the plaintiff; whether the plaintiff made a good faith error and there is no prejudice to others if tolling is applied; or whether a required act is dependent on a prior necessary act of another over whom the person seeking equitable tolling has no control. State v. Zimbal, 2017 WI 59, ¶¶65-66, 375 Wis. 2d 643, 896 N.W.2d 327 (Roggensack, J., concurring) (finding a tardy substitution request should be deemed timely under the equitable tolling doctrine).

While various statutory time limits have been subject to equitable tolling, there is no authority for applying this doctrine to a statute of limitation, which is a horse of a different color:

¶12     Our research suggests that the expiration of the statute of limitations renders the municipal court without jurisdiction to hear the case. See State v. Kollross, 2019 WI App 30, ¶7, 388 N.W.2d 135, 931 N.W.2d 263; State v. Strohman, No. 2014AP1265-CR, unpublished slip op. ¶6 (WI App Feb. 3, 2015); State v. Faber, Nos. 2010AP2324-CR & 2010AP2325-CR, unpublished slip op. ¶6 (WI App Mar. 23, 2011). Although these cases involve criminal matters, we have been provided with no authority to suggest that the expiration period applicable to the governmental prosecution of a civil forfeiture for violation of a municipal ordinance is treated differently. No basis has been given to expand the statutorily proscribed jurisdiction of the municipal court with principles of equity.

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