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Civil Procedure — discovery

Wisconsin Court of Appeals


Civil Procedure — discovery

Chapter 804 civil discovery procedures apply in an action to recover a forfeiture that is commenced by a citation under sec. 778.25.

“Criminal procedures apply in forfeiture actions ‘only to the extent that the legislature has so directed.’ State v. Peterson, 104 Wis. 2d 616, 624, 312 N.W.2d 784 (1981). The State points to nothing in the statutes indicating that the legislature has directed application of criminal discovery in forfeiture actions governed by WIS. STAT. §778.25.”

“The State points out that the courts have sometimes characterized forfeitures as ‘quasi-criminal.’ See, e.g., City of Milwaukee v. Cohen, 57 Wis. 2d 38, 46, 203 N.W.2d 633 (1973). However, regardless whether this is an apt characterization for purposes of the question presented here, such judicial pronouncements are not legislative directives.”

“And, there can be no doubt that the legislature knows how to give directives on this topic. The legislature has done so in other contexts. It has not done so here.”

“Accordingly, we conclude that the legislature has not prescribed a different discovery procedure for the forfeiture action against Bausch.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP752 State v. Bausch

Dist. IV, Dane County, Hanrahan, J., Lundsten, J.

Attorneys: For Appellant: Murray, James C., Madison; For Respondent: Blythe, Christopher J., Madison; Collins, Winn S., Madison

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