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State v. Detert-Moriarty

Court of Appeals of Wisconsin, District IV

December 22, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Judith Ann Detert-Moriarty, Defendant-Appellant.

         APPEAL from an order of the circuit court for Dane County, No. 2013FO2109 AVID T. FLANAGAN, III, Judge. Affirmed.

          Before Higginbotham, Sherman and Blanchard, JJ.

          HIGGINBOTHAM, J.

         ¶1 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), [1] 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).

         ¶2 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 circuit court.

         BACKGROUND

         ¶3 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 defendant.

         ¶4 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.

         DISCUSSION

         ¶5 WISCONSIN STAT. § 814.245(3), [2] 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.

         ¶6 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.

         ¶7 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).

         ¶8 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.

         ¶9 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 ...


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