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WEAJA doesn’t cover forfeiture action brought by the State instead of a state agency

State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)

The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”

Detert-Moriarty, a participant in the Solidarity Sing-Alongs at the State Capitol, was cited for violating an emergency rule promulgated by the Department of Administration. DOA asked the Department of Justice to prosecute the citation, which it did, appearing in the case on behalf of the plaintiff State of Wisconsin. The forfeiture actions was dismissed after the circuit court held the administrative rule was unconstitutional. (For more on that, see here.) (¶¶3-4).

She then sought attorney fees from DOA, citing § 814.245(3), which says that “if an individual … is the prevailing party in any action by a state agency … and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.” The court of appeals holds that statute doesn’t apply here:

¶11     WEAJA does not apply to actions by the State of Wisconsin. Unlike the federal act, WEAJA only provides for attorney fees in actions by state agencies, not actions brought by the State of Wisconsin. See Wis. Stat. § 814.245(3). Under the federal act, courts may award attorney fees to prevailing parties not only in an action brought by or against a federal agency, but “in any civil action brought by or against the United States … or any official of the United States acting in his or her official capacity.” 28 U.S.C. § 2412[](b) (2011). The legislature was guided by the federal act when enacting WEAJA. Thus, if the legislature intended for WEAJA to apply to actions brought by or against the State of Wisconsin, similar to the federal act applying to the United States, it could have done so, and plainly did not.

In addition, the common law rule is that courts may not require the State or a state agency to pay costs or attorney fees unless a statute expressly authorizes a court to do so. Sheely v. DHSS, 150 Wis. 2d 320, 329, 442 N.W.2d 1 (1989). Thus, WEAJA is in “derogation of the common law and should, therefore, be strictly construed.” Id. (¶12).

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