On Point

State v. Carl J. Opelt, 2013AP1798, District IV, 12/27/13 (1-judge decision, ineligible for publication); case activity.

Police arrested Opelt for OWI.  While transporting him to the hospital, an officer asked him 14 times to submit to an evidentiary chemical test of his blood.  The circuit court found that Opelt refused to promptly submit to the test and thus revoked his operating privileges pursuant to implied consent law, Wis. Stat. §343.305.

Opelt admits he never gave an unqualified “yes” to the officer but also notes that he did not resist the test.  The court of appeals was not impressed. Every time Opelt suggested that his answer might be “yes,” the officer asked a clarifying question, and Opelt “made a sport” out of dodging it.  Says the court of appeals:  “It is obvious that Opelt was trying to make a game out of not giving the officer the unambiguous answer that the officer made clear he needed in order to complete the Informing the Accused form.”  Slip op., ¶9.  The court of appeals thus held that the circuit court did not err in finding that Opelt gave equivocal answers that amounted to a refusal to submit to testing.

The court of appeals also held that the circuit court did not err as a matter of law.  Even if Opelt made some statements that, considered in isolation, suggested an intent to submit to testing, his conduct (game playing) amounted to a refusal.  See State v. Rydeski, 214 Wis. 2d 101, 106, 571 N.W.2d 417 (Ct. App. 1997) and State v. Reitter, 227 Wis. 213, 595 N.W.2d 646 (1999).

State v. David Lawrence Eastman, 2013AP1401-CR, District 3 (1-judge decision; ineligible for publication); case activity

A police officer may conduct a traffic stop when he has grounds to reasonably suspect that either a crime or a traffic violation has or will be committed.   See State v. Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569; State v. Colstad, 2003 WI App 25, ¶11, 260 Wis. 2d 406, 659 N.W.2d 394. Here, an officer saw Eastman’s unoccupied car in a ditch, but did not know how it got there.  He left the scene, returned about 50 minutes later and saw the vehicle driving away from the ditch, so he stopped it, which ultimately led to Eastman’s 3rd OWI conviction and this appeal.

The court of appeals held that the officer had reasonable suspicion to perform an investigatory stop based upon a possible non-criminal traffic violation:  “A vehicle ordinarily does not go off a highway and end up in a ditch unless something is amiss. It is reasonable to infer that the vehicle ended up in the ditch because the driver committed a traffic violation  . . . Although Eastman may have had an innocent explanation for why he ended up in a ditch, we agree with the State that [the officer] was not required to rule out any supposedly innocent explanation for Eastman’s conduct before initiating the stop.” Slip op., ¶12.

This case underscores why counsel should always file a reply brief in support of a client’s appeal. The court of appeals noted that Eastman’s failure to file a reply brief in response to the State’s arguments meant that Eastman conceded the police had reasonable suspicion for the stop. The court simply offered its own analysis on top of the concession.

State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity

After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it.  Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.  Specifically, he was not advised of his right to counsel, the benefits of having an attorney, or the dangers of self-representation.

The plea transcript from the 2nd OWI case no longer exists.  Still, the State conceded that Stelzer presented a prima facie challenge on this issue.  Stelzer lost anyway because he had previously used attorneys in a battery case and a divorce case.  Plus he admitted having engaged in a cost-benefits analysis about whether to engage an attorney for his 2nd OWI.  Relying mostly on State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87, see On Point post here, the court of appeals concluded:

¶12 We agree with the circuit court’s determination that Stelzer made a cost-benefit decision when he waived his right to counsel, that he knew he had the right to counsel and that he was aware of the role of an attorney. We also agree that the State met its burden to show by clear and convincing evidence that Stelzer’s waiver of his right to counsel was made knowingly, intelligently and voluntarily. We affirm the circuit court’s denial of Stelzer’s collateral attack and Stelzer’s subsequent conviction for OWI, third offense.

State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity

In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI. In this case, the court limits that discretionary authority to cases in which the defendant pleaded guilty, reversing the court of appeals’ extension of Brooks to cases in which the defendant is acquitted at trial:

¶28  The purpose of Wisconsin’s implied consent statute is to encourage drivers, upon a request by law enforcement, to submit to chemical testing. [Brooks, 113 Wis. 2d] at 348. This allows for the efficient gathering of evidence that may be used to secure drunk-driving convictions. Id.; State v. Neitzel, 95 Wis. 2d 191, 203, 289 N.W.2d 828 (1980).

¶29  Having established the purpose of the implied consent statute, to secure OWI-related convictions, our reasoning in Brooks then turned to whether this purpose was met when a defendant had already pleaded guilty to the underlying OWI charge at the time of his or her refusal hearing. Brooks, 113 Wis. 2d at 353-57. We found “[i]f the person who is charged with OWI . . . subsequently pleads guilty, there no longer remains a need for penalties for failure to submit to a test which has become unnecessary in the particular case.” Id. at 348-49.

¶30  The reasoning in Brooks did not broadly grant discretionary authority to circuit courts. See id. at 359. Instead the specific reasoning in Brooks was tied to the fact that the defendant pleaded guilty to the underlying OWI charge by the time of his refusal hearing, which he timely requested. See id.  In Brooks, this court repeatedly reasoned that the purpose of the implied consent statute, to gather evidence to convict drunk drivers, was served when the defendant pleaded guilty to the underlying OWI charge. Id. In Brooks we stated:

Accordingly, we conclude that the general purpose behind the laws relating to operating while under the influence of intoxicants and implied consent to take alcohol tests—to get drunk drivers off the road as expeditiously as possible and with as little possible disruption of the court’s calendar—is best served by the exercise of discretion in the dismissal of a refusal case once there has been a plea of guilty to the OWI charge.

Id.

Though it limits the applicability of Brooks, the court declines the state’s invitation to overrule the decision because it “is longstanding precedent that fosters plea agreements in OWI and OWI-related cases.” (¶35).

The court also establishes a second prerequisite for a court’s authority to dismiss a refusal charge: The defendant must have complied with the statutory time limit for requesting a refusal hearing. Failure to make a timely request means license revocation commences under the refusal statute, § 343.305(9)(a)4. and (10)(a), and Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282, 832 N.W.2d 121 (the time limit for requesting a refusal hearing is mandatory and cannot be extended); thus, absent a timely request the court has no authority to dismiss a refusal charge. (¶¶32-34). (The court says it recognizes there might be “factual circumstances” that make requesting a refusal hearing or entering a guilty plea “impossible,” but it doesn’t decide whether the court would still have discretionary authority to dismiss the refusal under those circumstances. (¶34 n.10).)

Two other points to note. First, Bentdahl argued the state shouldn’t have been allowed to petition for review because the court of appeals decision was not adverse to the state under Rule 809.62(1g)(a) and (b) and (1m)(a). The court of appeals did grant some relief to the state, as it reversed the circuit court’s dismissal of the refusal proceeding based on a defect in notice to Bentdahl about the deadline for requesting a refusal hearing. (¶¶12-14). (Bentdahl didn’t cross-petition on that issue, so it’s not before the supreme court. (¶6).) But under the rules it’s sufficient if the court of appeals decision was partially adverse to the state, and here it was, as it ordered the case remanded for the circuit court to exercise discretion under Brooks even though the state argued Brooks didn’t apply and requested that a refusal judgment and order should be entered against Bentdahl. (¶21).

Second, the court makes a point of saying they are not addressing the validity of the warrantless blood draw from Bentdahl, which occurred before the decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The application of McNeely to searches occurring before that case was decided must wait for another day.

Mark D. Jensen v. James Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

Judge William Griesbach of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Mark Jensen, who was convicted of killing his wife Julie based in part on the use of oral and written statements she made before her death in which she told police she suspected her husband was trying to kill her. Jensen’s defense was that she committed suicide. For readers not familiar with this case, some background will help in understanding the habeas court’s decision and its significance.

The state’s desire to introduce the statements Julie Jensen made to police led to lengthy pretrial litigation, including an interlocutory appeal to the Wisconsin Supreme Court. State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 (Jensen I). In its decision, the court adopted a broad interpretation of the doctrine of “forfeiture by wrongdoing,” under which, the court held, a defendant forfeits his confrontation right if he has “caused” the absence or unavailability of the witness. 299 Wis. 2d 267, ¶57. On remand, the trial court applied this broad test and admitted the statements. After his conviction, but before Jensen’s direct appeal from the conviction was decided, Giles v. California, 554 U.S. 353 (2008), rejected the broadly formulated forfeiture by wrongdoing doctrine adopted by the Wisconsin Supreme Court in Jensen I. Instead, Giles held that forfeiture by wrongdoing required not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying. 554 U.S. at 361-66. (This narrower view was the one advanced by Justice Butler’s dissent in Jensen I, 299 Wis. 2d 267, ¶¶84-97.)

Instead of facing this sea-change in the law, the court of appeals’ decision in Jensen’s appeal from the conviction sidestepped the question of whether Giles precluded the admission of Julie Jensen’s statements. The court assumed that the statements were erroneously admitted and held that the error was harmless. State v. Jensen, 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482 (Jensen II). Jensen’s petition for review was denied, and he sought habeas relief.

As described in more detail below, the federal habeas court: 1) rejects the state’s arguments that Julie Jensen’s statements would be admissible under Giles ; and 2) rejects the court of appeals’ holding that the erroneous admission of her statements was harmless.

Forfeiture by wrongdoing

As it did in Jensen II, ¶33, the state contends that Giles left an opening that allows the admission of Julie Jensen’s statement–namely, that Giles should be read to permit a finding of forfeiture by wrongdoing if there is a preponderance of evidence the defendant killed Julie to prevent her testimony in any court proceeding–e.g. a family court action–not just in his criminal trial for her homicide. After finding this argument procedurally barred (because it would require the federal habeas court to make findings of fact to preserve a ruling by a state court on a ground that played no role in the state court’s ruling (slip op. at 15)), Judge Griesbach rejects the argument on its merits:

Giles holds that the forfeiture exception to the Confrontation Clause requires that the defendant engaged in conduct that had the specific purpose of preventing the declarant from testifying. 554 U.S. at 361-62. Respondent notes that the prosecutor argued to the trial court that one reason Jensen killed Julie was “‘to avoid any litigation surrounding a divorce or a custody dispute involving their two children.'” [Record citation omitted.] But the exception applies when the action taken by the defendant is intended to prevent testimony, not prevent litigation. One who kills a spouse to avoid a messy divorce is not acting to prevent he spouse from testifying, but to eliminate the need for the divorce altogether. If that is enough to invoke the forfeiture exception to the Confrontation Clause, then the exception would apply in any case in which the motive for the murder could arguably have been the subject of litigation. Read this way, the exception would almost swallow the rule.

If Jensen caused Julie’s death as the State alleged, he did so not to prevent her from testifying at a divorce [trial] but to eliminate any need for a divorce. The argument that Jensen killed his wife to prevent her from testifying in their divorce is essentially no different than the argument that he killed her to prevent her from testifying at her murder trial. In both cases, her unavailability to testify would be a result of the crime, not the motivation for it. This is, of course, exactly the motive the State advanced at trial. [Record citation omitted.] This is not the kind of specific intent that Giles requires in order invoke the forfeiture by wrongdoing exception to a defendant’s right to confrontation. Respondent’s contention that Jensen murdered Julie to prevent her testimony during a divorce that neither person was actually pursuing or even planning to pursue when her death would necessarily obviate the need for the divorce is, therefore, fundamentally flawed. (Slip op. at 15-16).

The court thus rejects the State’s reliance on United States v. Lentz, 524 F.3d 501, 526-29 (4th Cir. 2008), which applied the forfeiture by wrongdoing exception to a defendant charged with interstate kidnapping resulting in death. In addition to the fact that Lentz was decided in before Giles, in that case family court proceedings were pending between the defendant and his ex-spouse, who disappeared after she went to the defendant’s home to pick up their child the night before a hearing that was to set child support and determine property division. (Slip op. at 17).

A rejection, then, of the broad interpretation of Giles the state advanced in Jensen II. The state’s interpretation has not been addressed by a Wisconsin appellate court, though the court of appeals did implicitly recognize the limits imposed by Giles on the forfeiture by wrongdoing exception in an opinion issued a scant two months before Jensen II. See State v. Baldwin, 2010 WI App 162, ¶¶34-45, 330 Wis. 2d 500, 794 N.W.2d 769 (trial court’s “prescient” decision (¶41) found defendant intended to prevent witness from testifying at his trial) (further discussion here)). Of course, even if this federal habeas opinion is published and affirmed by the Seventh Circuit (should it be appealed), its interpretation of federal constitutional law is not binding on state courts, State v. Mechtel, 176 Wis. 2d 87, 94, 449 N.W.2d 662 (1993), though state courts can follow lower federal court decisions they find persuasive, State v. Boettcher, 144 Wis. 2d 86, 96-97, 423 N.W.2d 533 (1988). See Streff v. Town of Delafield, 190 Wis. 2d 348, 356-57, 526 N.W.2d 822 (Ct. App. 1994).

For readers attuned to the dangers, toils, and snares of habeas litigation under AEDPA, note that Judge Griesbach rebuffs the state’s threshold claim that Giles doesn’t apply at all because it wasn’t “clearly  established law” at the time of the operative state court decision. Under AEDPA, a defendant bringing a habeas challenge to a state conviction in federal court must show the state court decision was contrary to, or an unreasonable application of, “clearly established Federal law,” 28 U.S.C. § 2254(d)(1). The state contends that Jensen II did not address Jensen’s confrontation claim on its merits, but assumed there was error, which means the last state court decision addressing Jensen’s confrontation claim on it merits was the trial court’s decision to admit Julie Jensen’s statements. Because the trial court’s decision was in 2007, a year before Giles, the state argued Giles‘s holding wasn’t clearly established law at the time of the trial court’s decision. Judge Griesbach concludes that Jensen II expressly addressed the merits of Jensen’s Sixth Amendment claim by discussing Giles, assuming a violation occurred without addressing the state’s broader argument about the case, and then finding the error harmless. “Respondent’s contention that this court should ignore Giles and instead consider the trial court’s forfeiture finding as the last decision on the merits is simply wrong. Giles most certainly applies. ‘Clearly established federal law’ within the meaning of § 2254(d) includes Supreme Court decisions announced prior to the initial direct appeal of a defendant’s conviction. State courts cannot avoid federal habeas review by declining to decide issues that are presented to them.” (Slip op. at 13). Amen.

Harmless error

In this case, having reviewed the voluminous trial record, the court concludes that the erroneously admitted testimonial statements had “a substantial and injurious effect” on the jury’s verdict. Brecht [v. Abrahamson], 507 U.S. [619,] 622 [(1993)]. Although the prosecution presented a significant amount of properly admitted circumstantial evidence against Jensen, it was not so overwhelming that Julie Jensen’s “voice from the grave” could be considered harmless, especially given the central role her testimonial statements played during the trial. (Slip op. at 19).

****

… Julie’s letter from the grave served as an unrebuttable and emotionally compelling accusation of guilt. As noted, the statement reflected Julie’s state of mind and her opinion about conduct that Jensen might undertake in the future. It provided key and emotionally compelling facts allowing the jury, in a close case where it deliberated for more than thirty hours, to make inferences about a possible motive and premeditation, as well as exonerating Julie in the process. … [A]s Justice Cardozo eloquently put it, “[t]he reverberating clang of those accusatory words would drown all weaker sounds.” Shepard v. United States, 290 U.S. 96, 104 (1933) (decedent’s statement to nurse that her husband poisoned her was not admissible as a dying declaration or upon other grounds). Only by ignoring the impact of such evidence, as well as the contrary evidence offered and inferences drawn by the defense[,] can it be said that the error in admitting it was harmless. To say that the letter was not a key piece of evidence and to downplay its effect on trial is for create a sterilized, post-hoc rationalization for upholding the result…. (Slip op. at 31-32).

A must-read for every litigator frustrated (or more) by the slapdash application of harmless error analysis by appellate courts. In what must be termed an excoriation—careful, measured, thorough, to be sure, but an excoriation nonetheless—the federal court canvasses the aspects of the record Jensen II downplayed or simply ignored in concluding that the erroneous admission of Julie Jensen’s statements was harmless. As the court here notes, Julie’s letter to the police “played a key role from the outset,” for it served as the state’s roadmap for the trial, was read during the state’s opening, and cited repeatedly during the trial. (Slip op. at 19-20). The court of appeals “ignored this central role” of the letter, instead focusing on the evidence against Jensen. (Slip op. at 20). Yet Jensen II‘s characterization of the evidence against Jensen “is somewhat misleading” because it is circumstantial and subject to competing inferences the court of appeals ignored. (Slip op. at 21). Further, the notion that Julie’s statements to the police added “nothing significant beyond the properly admitted nontestimonial statements” is belied by the history of the case, which shows the state striving mightily to get the statements admitted. Indeed, the state’s arguments that Julie’s statements to the police “were, in effect, mere surplusage is incredible.” (Slip op. at 24). Finally, Jensen II suffers from the “major flaw” of failing to discuss the extensive evidence supporting Jensen’s defense: “A reader of the court of appeals’ opinion would conclude that Jensen called no witnesses, introduced no evidence, never questioned the credibility of any witness, and never even elicited helpful testimony from a prosecution witness. See [Jensen II, 331 Wis. 2d 440, ¶¶25-73]. This is far from an accurate account of the trial.” (Slip op. at 25).

Review of unpublished per curiam court of appeals decision; case activity

Issues (composed by On Point)

Whether the defendant’s Wis. Stat. § 974.06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing.

Whether postconviction counsel was ineffective under the standard set forth in Smith v. Robbins, 528 U.S. 259 (2000) (to show postconviction counsel was deficient, defendant must generally demonstrate counsel ignored an issue that was “clearly stronger” than the issues raised on direct appeal in order).

The petition for review is not electronically available, so the statement of the issues has been deduced based on the particulars of the case considered in light of the court’s recent cases addressing § 974.06 motions that allege ineffective assistance of postconviction or appellate counsel to avoid application of the serial-litigation bar. Those recent cases are State v. Balliette, 2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334, which addressed the pleading requirements, and State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, which also addressed the standard under Robbins. Perhaps the court accepted review to address shortcomings in those opinions (some of which are discussed here and here). Then again, perhaps this case provides the opportunity for the court to address a situation different from those in Balliette and Starks. Understanding how this case is different necessitates a primer on the multiple post conviction proceedings in this case.

Romero-Georgana pleaded guilty to child sexual assault and was sentenced to prison. (¶2). On direct appeal he sought resentencing by filing a § 809.30 postconviction motion arguing the judge failed to consider the sentencing guidelines that were then in place. (¶3). After the circuit court denied the motion he appealed, and the court of appeals ordered resentencing. (¶3). Before resesntencing his lawyer filed for substitution under § 971.20(7); the new judge imposed a longer sentence. (¶4). His direct appeal from the resentencing involved another postconviction motion (filed by a new postconviction lawyer) arguing prior counsel was ineffective for substituting the trial judge after the successful appeal. (¶4). After that motion was denied his lawyer filed a no merit report, which was accepted. (¶4). Romero-Georgana later filed the § 974.06 motion, arguing his first post conviction lawyer was ineffective for failing to argue that he was entitled to plea withdrawal because: 1) at the plea hearing the judge didn’t advise him of the potential deportation consequences of his plea, and now he’s likely to be deported; and 2) his original trial lawyer didn’t advise him he might be deported, and if she had he would have gone to trial instead of entering a plea. (¶¶1, 4).

The court of appeals affirmed the trial court’s holding that Romero-Georgana’s motion didn’t sufficiently allege how his first postconviciton lawyer was ineffective. Citing Robbins, the court of appeals concluded that the plea withdrawal issue wasn’t clearly stronger than the resentencing issue; after all, counsel succeeded on appeal in getting resentencing, even though the ultimate result was detrimental. (¶6). The court also decided counsel had a legitimate strategic reason for seeking resentencing instead of plea withdrawal: Counsel reasonably calculated that resentencing would likely result in a shorter sentence under the applicable sentencing guideline, while plea withdrawal would have allowed the state to bring charges it agreed to forego as part of the plea deal, or ask for more time than allowed under the plea deal, or both. (¶7).

The court of appeals’ application of Robbins is problematic. To see why, return to Balliette and Starks for a moment. In those cases the defendants’ overarching (if not only) goal in pursuing postconviction relief was to obtain a new trial, and their IAC claims were allegations that postconviction counsel failed to raise issues or arguments that would have advanced that goal. Balliette, 336 Wis. 2d 358, ¶¶10-15; Starks, 349 Wis. 2d 274, ¶¶66-73. The “clearly stronger” standard applies straightforwardly enough in that situation, for it essentially focuses on whether the issue that was not raised would have more likely achieved the goal of being granted a new trial. But Romero-Georgana’s case illustrates that a case may present multiple issues that relate to distinctly different goals. In his case, there was an issue that allowed him to pursue resentencing, and he now claims there was an issue that provides a basis for pursuing plea withdrawal. That is a very different objective than resentencing, presenting a distinct remedy and different, usually greater risks, as the court of appeals noted. When issues in a case relate to such different goals, the “clearly stronger” test can’t be used to justify postconviction counsel’s decision to pursue one goal over other possible goals because the client, not the lawyer, gets to choose the goals. State v. Debra A.E., 188 Wis. 2d 111, 125-26, 523 N.W.2d 727 (1994) (“The client must decide whether to file an appeal and what objectives to pursue, although counsel may decide what issues to raise once an appeal is filed” (emphasis added)); see also Jones v. Barnes, 463 U.S. 745, 751 (1983).

Thus, contrary to the court of appeals’ conclusion (¶7), it is irrelevant that Romero-Georgana’s motion fails to address postconviction counsel’s “strategic” reason for choosing resentencing over plea withdrawal. That was not a choice for counsel to make. Similarly, it doesn’t make sense to compare the strength of Romero-Georgana’s plea withdrawal claim to his resentencing claim. (¶6). Instead, the question is whether postconviction counsel missed or somehow misadvised Romero-Georgana about the possible grounds for plea withdrawal–and therefore a potential goal of the representation–and whether he would have pursued that goal either in place of, or in addition to, the goal of resentencing. Maybe his motion is, as the court of appeals concluded (¶6), deficient in alleging prejudice–i.e., that despite the risks he would have pursued plea withdrawal had he been correctly advised about the issue. Nonetheless, the supreme court should at least correct the erroneous notion that postconviction counsel can “strategically” supersede the client’s right to choose between the disparate remedies that might be available on appeal.

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).