from an order of the circuit court for Dane County, No.
2013FO2109 AVID T. FLANAGAN, III, Judge. Affirmed.
Higginbotham, Sherman and Blanchard, JJ.
Judith Ann Detert-Moriarty appeals an order by the circuit
court denying her motion for fees and costs under Wis.Stat.
§ 814.245 (2013-14),  which is the Wisconsin Equal Access to
Justice Act (WEAJA). The issue on appeal is whether
Detert-Moriarty is entitled to attorney fees and costs under
WEAJA where she was the prevailing party in a forfeiture
action brought by the Wisconsin Department of Justice (DOJ)
to enforce an administrative rule promulgated by a state
agency, the Department of Administration (DOA).
We conclude that Wis.Stat. § 814.245 does not apply to
this forfeiture action because WEAJA limits the award of
attorney fees and costs to a prevailing party in an action
brought by "a state agency." This action was not
brought by a state agency, but rather by the State of
Wisconsin, as required by Wis.Stat. § 778.02.
Accordingly, we affirm the circuit court's denial of
Detert-Moriarty's motion for costs under § 814.245,
but based on a different rationale than that used by the
For purposes of this appeal, the following facts are taken
from the record and are undisputed. Detert-Moriarty was
participating in the Solidarity Sing-Along in the State
Capitol rotunda when the Capitol Police, a division of the
DOA, cited her for violating an emergency rule promulgated by
the DOA, Wis. Admin. Code § Adm 2.14(2)(vm). This rule
prohibited participation in unpermitted events in the State
Capitol Building. The citation identified the State of
Wisconsin as the plaintiff and Detert-Moriarty as the
Detert-Moriarty contested the citation, and the case was
tried to the circuit court. The DOA, pursuant to Wis.Stat.
§ 16.846(2), sent the DOJ a written request to prosecute
the citation in the name of the DOA. The DOJ accepted the
DOA's request. The DOJ thereafter appeared in circuit
court on behalf of the State of Wisconsin, and prosecuted the
forfeiture action against Detert-Moriarty. The circuit court
dismissed the State's forfeiture action against
Detert-Moriarty on the ground that the administrative rule
was unconstitutional. Subsequently, Detert-Moriarty brought a
motion pursuant to Wis.Stat. § 814.245, for the DOA to
pay her attorney fees and costs on the basis that she was the
prevailing party in the forfeiture action. The circuit court
denied Detert-Moriarty's motion for attorney fees on the
ground that awarding fees under the statute would impinge on
prosecutorial discretion. Detert-Moriarty appeals.
WISCONSIN STAT. § 814.245(3),  provides that the court
shall award costs-attorney fees and expenses-to a
“prevailing party in any action by a state
agency.” The sole issue on appeal is whether this
forfeiture action was an action “by a state agency,
” within the meaning of § 814.245(3), for purposes
of determining whether Detert-Moriarty is entitled to
attorney fees under WEAJA.
Detert-Moriarty's appeal requires us to interpret and
apply Wis.Stat. § 814.245(3), and other pertinent
statutes, to the undisputed facts of this case. The
interpretation and application of a statute is a question of
law subject to de novo review. Xerox Corp. v. DOR,
2009 WI.App. 113, ¶46, 321 Wis.2d 181, 772 N.W.2d 677.
When interpreting a statute, we begin with the statutory
language. State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d
110. "If the meaning of the statute is plain, we
ordinarily stop the inquiry" and apply that meaning.
Id. (quoting another source). Wisconsin courts, when
interpreting WEAJA, are to be guided by federal case law
interpreting the statute's federal counterpart, the Equal
Access to Justice Act ("the federal act").
Wis.Stat. § 814.245(1).
Detert-Moriarty argues that the plain language of Wis.Stat.
§ 814.245(3) requires broad application, such that it
applies to civil forfeiture actions such as this case.
Detert-Moriarty takes the view that the legislature intended
for § 814.245(3) to have broad application because the
statute applies to "any action by a state
agency." § 814.245(3) (emphasis added).
Detert-Moriarty cites to the legislative history of the bill
that created § 814.245(3) in support of this argument.
Detert-Moriarty also argues that this case is an action by a
state agency, specifically the DOA, to enforce its rules. She
argues that the DOJ's participation in this case is
merely as the DOA's counsel, and that what was important
for purposes of determining whether this case is an action by
an agency is that the rule being enforced was promulgated by
the DOA, that the DOA commenced this action by issuing the
citation, and that the DOA asked the DOJ to represent the DOA
in this ...