Sept. 27, 2023 – The 60-day deadline for ruling on a defendant’s answer to a forfeiture complaint begins to run only after the defendant has been convicted of a charge that was the basis for the forfeiture, the Wisconsin Court of Appeals has ruled.
In State v. Lanning, 2021AP1849 (Sept. 19, 2023), the Court of Appeal District III also held that circuit courts are not required to hold an early procedural hearing to determine whether the property would be subject to forfeiture if the defendant were convicted.
Forfeiture of Cash, Land
In 2020, the Burnett County District Attorney charged Troy Lanning with several felony drug offenses. The district attorney filed a separate forfeiture action against Lanning, related to drug money.
The district attorney filed a second forfeiture action under Wis. Stat. section 961.555(2), seeking the forfeiture of a parcel of land that Lanning allegedly used to distribute methamphetamine.
On June 29, 2020, Lanning filed an answer to the state’s forfeiture complaint.
Plea Deal Collapses
The State and Lanning worked out a plea deal.
Under the deal, Lanning would not contest the forfeiture of the money and would plead guilty to one count of possession of methamphetamine with intent to sell or deliver.
In exchange, the State would dismiss the forfeiture action against the parcel of land and recommend that the remaining charges be dismissed and read-in at sentencing.
During a hearing held in April 2021, the Burnett County Circuit Court concluded that the district attorney lacked the authority to dismiss the forfeiture action against the parcel of land because the land was contraband under section 968.13(1)(a) and subject to forfeiture such that a forfeiture action must be filed.
As a result, the court concluded, it could not accept a plea where the state declined to pursue the forfeiture of the land.
Adjournment vs. Deadline
Lanning and the State resumed plea negotiations.
While those negotiations were ongoing, the State filed a motion asking the court to dismiss the land forfeiture action with prejudice under section 961.555(2)(b).
Section 961.555(2)(b) requires a court to set a hearing on a forfeiture action within 60 days of the service of the defendant’s answer unless the action is continued for cause or upon the stipulation of the parties.
The State argued that the court lacked competency to proceed because it hadn’t held a hearing within 60 days of when Lanning filed his answer to the state’s forfeiture complaint.
In October 2021, the circuit court denied the State’s motion, on the grounds that the legislature amended section 961.555(2)(a) in 2017 to specify that a civil forfeiture proceeding is automatically adjourned until after the defendant is convicted of any charge that formed the basis of seizing the property.
Lanning petitioned for leave to appeal the order denying the State’s motion; the State joined the request.
The Wisconsin Court of Appeals granted Lanning’s petition.
Public Interest Argument Unavailing
Before the court of appeals, the State argued that the circuit court retained the authority to dismiss the forfeiture action because it was in the public interest, especially since both parties had requested the dismissal.
Writing for a three-judge majority, Judge Thomas Hruz concluded that in making that argument, the State misunderstood the circuit court’s decision.
Hruz pointed out that the circuit court did not base its ruling on the adjournment requirement in section 961.555(2)(a).
Rather, he noted, the circuit court based its ruling solely on the fact that section 961.555(2)(b) did not require the dismissal of the forfeiture action.
Judge Hruz wrote that if the court of appeals instructed the circuit court to examine its inherent authority to dismiss the forfeiture action, the court would simply deny the State’s motion a second time for the same reason it dismissed it the first time and engage in “an exercise in futility.”
Harmonizing the Statues
Taking up Lanning’s argument, Hruz then concluded that subsections 961.555(2)(a) and (b) could be construed to avoid any conflict.
He reasoned that section 961.555(2)(b) never comes into play until after a defendant is convicted, because the forfeiture proceedings are automatically adjourned until the defendant is convicted under section 961.555(2)(a).
Therefore, a circuit court only loses competency by missing the 60-day deadline in section 961.555(2)(b) if it misses the deadline after the defendant has been convicted.
Lanning argued that circuit courts should be required to hold an early procedural hearing to determine whether the property would be subject to forfeiture if the defendant were convicted.
But that argument ignored the plain wording of section 961.555(2)(a), Judge Hruz concluded.
“If we were to require a court to hold a hearing under subsec. (2)(b) – before the defendant has been convicted of the relevant charge – we would render the adjournment of ‘forfeiture proceedings’ in subsec. 2(a) meaningless,” Hruz wrote.
Innocent Property Owner Interest?
Lanning also argued that the hearing required by section 961.555(2)(b) is essential to safeguard the interests of property owners.
But Judge Hruz reasoned that that argument ignored wording in section 961.555(2)(a) that allows a person with an innocent ownership interest in property to petition a circuit court for the return of his or her property at any time.
“In other words, the adjournment in subsec. 2(a) does not preclude an innocent owner from petitioning the court for the return of his or her property, nor does it preclude the court from addressing that issue,” Hruz wrote.