Home / Bench Blog / BENCH BLOG: A frustrating decision from the Court of Appeals (UPDATE)

BENCH BLOG: A frustrating decision from the Court of Appeals (UPDATE)

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge.

In a decision that touches all three branches of government, the court of appeals decided that in actions for civil forfeiture pretrial discovery may be conducted.

The background context for the forfeiture action at issue in the case of State v. Bausch is the sing-along protests in the Wisconsin Capitol rotunda during the lunch hour. The sing-alongs began in March 2011 to protest Gov. Scott Walker’s labor legislation and have occurred nearly every weekday since then.

In fall 2012 the Wisconsin Capitol police began arresting protesters. They were given citations for failing to have a permit for a rally or demonstration in the Capitol participated in by more than 20 people, as required by an administrative regulation. The protesters maintained that the regulation was trumped by their First Amendment right to freedom of speech.

One of these citations was given to Anica Bausch in October 2012. The citation carried a maximum penalty of a $500 forfeiture under sec. 778.25. Bausch pleaded not guilty and requested a jury trial. She also requested pretrial discovery.

A 45-day deadline for discovery was set at one of the pretrial conferences. The state subsequently objected, asserting that parties in a forfeiture action were not entitled to civil discovery procedures.

Dane County Circuit Judge William Hanrahan agreed with the state. He concluded that forfeiture actions could not be reconciled with civil discovery procedures as forfeiture actions are quasi-criminal in nature.

He also had a concern about being swamped with the expansion of litigation if pretrial discovery was allowed in every forfeiture action. There are, for example, 400 sing-along protesters cases pending in front of 13 Dane County judges.

Appeals analysis

The Court of Appeals allowed Bausch to appeal Hanrahan’s decision while the case was still pending. It reversed the decision.

The question before the court was whether the Ch. 804 civil discovery procedures applied in a Ch. 778 forfeiture proceeding. The decision was authored by District IV Court of Appeals Judge Paul Lundsten.

He began his analysis with Ch. 799, the small claims chapter, because it is the exclusive procedure for circuit court actions to recover forfeitures. The chapter provides that civil procedure statutes apply unless a different procedure is prescribed in Ch. 778 or elsewhere.

Ch. 778 is silent on the question of civil discovery procedures, and no other prescribed procedure was found “elsewhere.” The state impliedly argued that forfeiture actions were criminal or quasi-criminal in nature, but the court rejected this characterization.

But Ch. 778’s silence doesn’t translate to permission to use civil procedures. The second prong of the analysis is needed: whether forfeiture proceedings can be reconciled with civil discovery procedures.

The state argued that the informality of the action – being initiated by a citation rather than a summons and complaint and joined by a plea rather than a written answer – weighed against the application of pretrial discovery.

The court noted, however, that the state did not initially object to other civil procedures implemented by the circuit court: a pretrial conference and a status conference where deadlines were set for motions and completion of discovery.

“The state’s apparent acquiescence to these procedures undermines the state’s argument,” the court wrote, “that civil discovery procedures conflict with the citation and plea procedures …”

And it rejected the state’s assertion that discovery is primarily for purposes of summary judgment which is unattainable in forfeiture actions, writing, “The more apt description is that discovery is primarily for purposes of trial …”

Floodgates argument

Lastly, the state argued that allowing civil discovery in forfeiture actions would open the floodgates for various types of Ch. 778 forfeiture actions in circuit court.

As examples of such citations the state included underage drinking, using fake identification, underage purchase of cigarettes, drinking on school grounds or at sporting events, possession of drug paraphernalia, regulation of dog breeders and animal shelters, and harassment.

The court responded in conclusory fashion that this argument “neither shows an inconsistence with civil discovery nor demonstrates that our statutory interpretation produces absurd results.”

Moreover, the court indicated that if the state believes it is bad public policy because it could be expensive, the state should direct that argument to the legislature, not the courts.

Interestingly, Bausch argued that the floodgates already were opened in 1988 when the attorney general issued an opinion that pretrial discovery was available in forfeiture actions. Lundsten sardonically noted that notwithstanding the gate thus being opened, “the state does not call our attention to any current ‘flooding’ problem.”

In any event, the appeals court noted that the circuit court has discretion to limit discovery via protective orders. Thus the court concluded that civil discovery statutes can be reconciled with forfeiture actions and remanded the case back to circuit court so that Bausch can conduct discovery.


This is a frustrating decision. It displays the author’s tendency toward supercilious writing.

Its analysis of the second prong is short on explanation and long on one-on-one combat with the state.

It makes a major pronouncement with little justification beyond “because I said so.”

We expect a more learned and detached approach.

It should be noted that this case represents only one aspect of the developing jurisprudence on the sing-along protesters’ forfeiture actions.

Recently Dane County Circuit Judge John Markson declared unconstitutional the administrative rule requiring groups larger than 20 to have a permit. He found that the rule “is not narrowly tailored to the legitimate government interests it seeks to promote. It is not a valid time, place and manner requirement.”

He therefore dismissed the case of State v. Crute as well as 28 similar forfeiture actions that were pending in his court. Hundreds of other forfeiture actions await the decisions of the other 12 judges.

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