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COA: pending criminal proceeding means civil forfeiture hearing need not be held within 60 days

State v. Troy Allen Lanning, 2021AP1849, 9/19/2023, District 3, recommended for publication; case activity (including briefs)

Here’s an odd one. The state charged Lanning in a meth trafficking operation and separately filed a civil action seeking forfeiture of some real property that he owned, had lived in, and, said the state, distributed meth from. See Wis. Stat. § 961.55. Eventually Lanning and the state reached a deal involving a plea to one criminal count and Lanning’s forfeiture of his cash proceeds from the meth operation. The state also agreed to dismiss the action for forfeiture of Lanning’s real estate. In fact, the elected DA told the court a junior prosecutor had filed the real-estate forfeiture case without authorization, and that the DA believed it would be “a nightmare” for the state to try to obtain title.

So the state and Lanning agreed: neither wanted Lanning’s property forfeited. The circuit court, though, demurred: it opined that the state was legally obligated to pursue the forfeiture, whether it wanted to or not.

On Point has attempted to discern, from the briefing and the court of appeals opinion, the logical basis of the trial court’s theory that the District Attorney has an absolute obligation to litigate pursue civil litigation over Lanning’s land and pole barn. On Point’s efforts were fruitless. Perhaps a keener reader can use the statutory citations given here to construct a case.

After that ruling, the state tried again, this time asking the trial court to dismiss (its own) case with prejudice because it had blown a statutory deadline. The court denied that request too; Lanning then requested and received the court of appeals’ permission to bring an interlocutory appeal of the judge’s denial of the state’s motion seeking to dismiss its own case. Got it?

The court of appeals says, first, what it’s not deciding: it “express[es] no opinion as to whether the circuit court correctly determined that the State was required to proceed with this civil forfeiture action,” because this issue wasn’t raised in the petition seeking permissive appeal or in the court of appeals’ order granting it. (This and other matters, the court notes, may be raised on direct appeal once a final judgment is entered below.) (¶11 n.3). So this decision addresses only the lower court’s second conclusion: that there has been no breach of a statutory deadline requiring dismissal.

Lanning’s argument that the deadline was blown depends on State v. One 2000 Lincoln Navigator, 2007 WI App 127, 301 Wis. 2d 714, 731 N.W.2d 375. That case construed Wis. Stat. § 961.555(2)(b), which says that once the defendant has answered a forfeiture complaint, “the action shall be set for hearing within 60 days of the service of the answer” unless it is continued for cause or by stipulation. One 2000 Lincoln Navigator held this deadline mandatory: that “a person may not be deprived of his or her property for ‘an indefinite time'” and so the violation of the time limit requires dismissal of the forfeiture case with prejudice.

But after that case was decided, the legislature amended Wis. Stat. § 961.555(2)(a) to provide for an automatic stay of the forfeiture proceeding until the end of the underlying criminal case. See 2017 Wis. Act 211, § 21. These two provisions–the 60-day timeline and the automatic stay–are not in conflict, says the court of appeals, so dismissal is not necessary here:

These statutory provisions, when reasonably construed together, do not conflict. Because forfeiture proceedings are automatically adjourned under WIS. STAT. § 961.555(2)(a), a circuit court cannot hold the hearing contemplated in subsec. (2)(b) until after the defendant is convicted of a requisite charge. Upon such a conviction, the sixty-day hearing deadline in subsec. (2)(b) begins to run if the defendant has already filed an answer. If the court then fails to comply with subsec. (2)(b) after the required adjournment, the court would lose competency over the civil forfeiture proceedings pursuant to One 2000 Lincoln Navigator. In essence, the automatic adjournment in subsec. (2)(a) is a statutorily prescribed “for cause” continuance, which is permitted in subsec. (2)(b).


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