More than thirty years ago, the Wisconsin legislature adopted the Wisconsin Equal Access to Justice Act. That statute, modeled on the federal Equal Access to Justice Act, provides that an individual or small business that prevails in a suit brought by any state agency or in a challenge to an administrative rule may recover litigation costs. See Wis. Stat. §814.245(3). Today’s decision in State v. Detert-Moriarty, No. 2014AP2433 (Wis. Ct. App.) (recommended for publication), reads the WEAJA such that an individual who successfully fought an unconstitutional forfeiture action must bear her own costs.

The facts are straightforward and undisputed. Judith Ann Detert-Moriarty was cited for participating in the Solidarity Sing-Along in the capitol rotunda. The citation alleged that Detert-Moriarty had violated Wis. Admin. Code §ADM 2.14(2)(vm), an emergency rule promulgated by the Wisconsin Department of Administration that prohibits participation in unpermitted events in the capitol building. Detert-Moriarty contested the citation.

In accord with Wisconsin statutes, the Department of Justice prosecuted the forfeiture action upon written request from the Department of Administration. The circuit court dismissed the forfeiture action because it deemed the underlying emergency rule unconstitutional. Detert-Moriarty then filed a motion under the WEAJA to recover the attorney’s fees and court costs she incurred contesting the citation. The circuit court denied her motion, and Detert-Moriarty appealed.

The circuit court based its ruling on the idea that assessing costs would improperly impinge on prosecutorial discretion. The appellate court affirmed the denial of Detert-Moriarty’s motion, but did so on an entirely different rationale. According to the court of appeals, Detert-Moriarty was not eligible to recover costs under the plain text of the WEAJA because the forfeiture action was brought not by a state agency, but by the state itself.

In support of this ruling, the court piles up several uncontroversial principles of law. First, “[c]ourts may not require the State or a state agency to pay costs or attorney fees” absent express statutory authorization. Detert-Moriarty, slip op., ¶12 (citing Sheely v. DHSS, 150 Wis. 2d 320, 329, 442 N.W.2d 1 (1989)). Second, because the fee-shifting authorized by the WEAJA is contrary to the American common-law tradition in which parties bear their own costs, the statute “‘should [] be strictly construed.’” Id. (quoting Sheely, 150 Wis. 2d at 329). Third, “‘where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history.’” Id. (quoting State ex rel. Kalal v. Circuit Court for Dane Cty., 2009 WI App 113, ¶46 321 Wis. 2d 181, 772 N.W.2d 677).

The court then proceeds “to distinguish between actions brought by a state agency and actions brought by the State.” Id. The appellate court relies on Wis. Stat. §778.02, which requires “[e]very [] forfeiture action” be brought “in the name of the state of Wisconsin.” Based solely on that statutory requirement, the court concludes that Detert-Moriarty’s “case is not an action by a state agency, and, therefore, Detert-Moriarty is not entitled to recover attorney fees and costs” under the WEAJA. Detert-Moriarty, slip op., ¶13. This is the argument advanced by the State, see id., ¶10, but the appellate court never acknowledges, much less addresses, the argument’s shortfalls.

First, it is not at all clear that the requirement that an action “shall be in the name of the state of Wisconsin” means that the action itself is not brought by a state agency. By definition, an agency is an arm of the State working to effectuate the State’s interests. Here, the Department of administration promulgated regulations under its authority over the state capitol and the Department of Justice prosecuted a forfeiture action against Detert-Moriarty for violating one of those regulations. Regardless of the caption, it does not seem unambiguous as a textual matter that the case is outside the ambit of the WEAJA, which reaches “any action by a state agency.” Wis. Stat. §814.245(3). As the appellate court itself notes in summarizing the procedural history of the case, “The DOJ accepted the DOA’s … written request to prosecute the citation” and “thereafter appeared in circuit court on behalf of the State of Wisconsin, and prosecuted the forfeiture action against Detert-Moriarty.” Slip op., ¶4. It seems odd that the court first recognizes the DOJ’s agency in this forfeiture action, only to hold, without further explanation, that same agency nonexistent so that there is no way to read the WEAJA to reach this forfeiture action.

Second, the court relies on Wis. Stat. §778.02, but does not consider how that provision fits into the larger statutory scheme of the chapter on forfeitures. Neither does it consider how that provision intersects with other provisions of Wisconsin law, including but not limited to the WEAJA.

Third, the court does not consider how perverse its decision seems. By its plain text, the WEAJA covers the costs of a litigant who takes affirmative steps to challenge the constitutionality of an administrative regulation. See Wis. Stat. §814.245(3). But here the court’s holding excludes from the WEAJA a claim for costs by a litigant who successfully litigated that same issue in a forfeiture action. (And, because she was the defendant in the forfeiture action, there is no argument that her own strategic decisions caused the differential treatment.) That inequality alone is odd.

But odder still is the roadmap provided by the court’s holding that an action brought in the name of the state is beyond the reach of the WEAJA, even though it is brought by and at the behest of state agencies. It seems that state agencies can use the court’s construction of the WEAJA to structure their litigation so that costs are rarely if ever available to prevailing individuals and small businesses. In this respect, the Detert-Moriarty decision is reminiscent of the Wisconsin Supreme Court’s decision in Sorenson v. Batchelder, 2016 WI 34, 368 Wis. 2d 140, 885 N.W.2d 362, which adopted a hyper-textual reading of a notice statute that essentially makes it impossible for would-be plaintiffs to give required notice to the attorney general before filing suit.

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