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  • WisBar News
    December 23, 2013

    Capitol Protester Gets Discovery in Forfeiture Action, Appeals Court Says

    Dec. 23, 2013 – A woman fined $500 for protesting at the state Capitol building without approval can seek pretrial discovery despite the state’s argument that pretrial discovery does not apply in this type of forfeiture proceeding, a state appeals court has ruled.

    Anica Bausch received a $500 fine from Capitol police in October 2012 under a state regulation that prohibits, in certain circumstances, pickets, rallies, parades or demonstrations without approval from the Wisconsin Department of Administration.

    After pleading not guilty, Bausch sought pretrial discovery and demanded a jury trial. However the circuit court ruled that pretrial discovery was not allowed in such cases.

    In State v. Bausch, 2013AP752 (Dec. 19, 2013), a three-judge panel for the District IV appeals court reversed, ruling the discovery procedures apply. “We agree with Bausch that civil discovery procedures apply in this context,” wrote Judge Paul Lundsten.

    Specifically, the appeals panel ruled that general civil discovery applicable to small claims actions “also applies to forfeiture actions governed by Wis. Stat. § 778.25.”

    The panel explained that small claims procedures, which allow discovery, govern actions to recover forfeitures unless other statutes prescribe different procedures.

    Wis. Stat. section 778.25 establishes procedures in certain actions to recover forfeitures, including actions commenced by citations issued under rules relating to the use, care, and preservation of property under department of administration control.

    Section 778.25 governs Bausch’s forfeiture action, because she received the citation for allegedly breaking protest rules at the state Capitol. The Capitol is property controlled by the department of administration, which promulgated these rules.

    However, the appeals court ruled that section 778.25 does not prescribe different discovery procedures. Thus, general small claims procedures apply.

    “There mere fact that a Wis. Stat. § 778.25 forfeiture action is specialized in nature or includes specialized procedures does not mean that civil discovery procedures do not apply,” wrote Judge Lundsten, noting the statute is silent on discovery.

    The panel rejected the state’s argument that section 778.25 forfeiture proceedings conflict with civil discovery procedures. In addition, the panel rejected the state’s argument that allowing discovery in this case would open the discovery floodgates in other section 778.25 cases, which include underage drinking, possession of drug paraphernalia, and “body passing or alcohol consumption at sporting events.”

    “The State’s floodgates argument neither shows an inconsistency with civil discovery nor demonstrates that our statutory interpretation produces absurd results and, for these reasons, falls short,” Judge Lundsten wrote.

    “If the State is suggesting that providing discovery rights to parties in Wis. Stat. § 778.25 forfeiture actions is bad public policy because it may be expensive, such an argument must be made to the legislature,” Lundsten noted for the three-judge panel.

    The appeals court also noted that circuit courts have broad discretion to limit discovery.


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