Mr. Robert J. Zeman
Corporation Counsel
Manitowoc County
1010 South Eighth Street
Manitowoc, Wisconsin 54220-5392
Dear Mr. Zeman:
You ask whether a judgment rendered in a civil action in circuit court for payment of a forfeiture can be docketed, accumulate postjudgment interest at the rate of twelve percent per annum and be enforced using those collection remedies which are available in connection with judgments entered in other civil proceedings.
In my opinion, the answer is yes.
You indicate that your concerns extend to judgments entered in all types of forfeiture proceedings which can be commenced by any unit of government in circuit court. Numerous statutes concerning the imposition of forfeitures are therefore relevant to your inquiry. Section 66.119, Stats., concerning municipal citations, provides in part:
Citations for certain ordinance violations. (1) ADOPTION; CONTENT. (a) The governing body of any county, town, city, village or public inland lake protection and rehabilitation district may by ordinance adopt and authorize the use of a citation to be issued for violations of ordinances, including ordinances for which a statutory counterpart exists.
....
(2) ....
(b) The issuance of a citation by a person authorized to do so... shall be deemed adequate process to give the appropriate court jurisdiction over
the subject matter of the offense for the purpose of receiving cash deposits, if directed to do so, and for the purposes of sub. (3)(b) and (c). Issuance and filing of a citation does not constitute commencement of an action
....
(3) ....
(b) If a person appears in court in response to a citation, the citation may be used as the initial pleading, unless the court directs that a formal complaint be made, and the appearance confers personal jurisdiction over the person. The person may plead guilty, no contest or not guilty. If the person pleads guilty or no contest, the court shall accept the plea, enter a judgment of guilty and impose a forfeiture
....
(c) If the alleged violator makes a cash deposit and fails to appear in court
, the citation may serve as the initial pleading and the violator shall be considered to have tendered a plea of no contest and submitted to a forfeiture
.... The court may
either accept the plea of no contest and enter judgment accordingly
or reject the plea.... If the court rejects the plea of no contest, an action for collection of the forfeiture
... may be commenced. A city, village or public inland lake protection and rehabilitation district may commence action under s. 66.12(1) and a county or town may commence action under s. 778.10
....
(d) If the alleged violator does not make a cash deposit and fails to appear in court at the time specified in the citation, the court may
issue a summons or warrant for the defendant's arrest or consider the nonappearance to be a plea of no contest and enter judgment accordingly if service was completed as provided under par. (e) or the county, town, city, village or public inland lake protection and rehabilitation district may commence an action for collection of the forfeiture
.... A city, village or public inland lake protection and rehabilitation district may commence action under s. 66.12(1) and a county or town may commence action under s. 778.10
.... If the court considers the nonappearance to be a plea of no contest and enters judgment accordingly, the court shall promptly mail a copy or notice of the judgment to the defendant
....
(e) A judgment may be entered under par. (d) if the summons or citation was served as provided under s. 968.04(3)(b)2 or by personal service by a county, town, city, village or public inland lake protection and rehabilitation district employe
.
Section 66.12, concerning actions for the collection of forfeitures for violations of municipal ordinances and regulations, provides in part:
Actions for violation of ordinances. (1) COLLECTION OF FORFEITURES AND PENALTIES. (a) An action for violation of an ordinance or bylaw enacted by a city, village or public inland lake protection and rehabilitation district is a civil action. All forfeitures and penalties imposed by any ordinance or bylaw
of the city, village or public inland lake protection and rehabilitation district, except as provided in ss. 345.20 to 345.53, may be collected in an action in the name of the city or village before the municipal court or in an action in the name of the city, village or public inland lake protection and rehabilitation district before a court of record
. If the action is in municipal court, the procedures under ch. 800 apply and the procedures under this section do not apply. If the action is in a court of record, it shall be commenced by warrant or summons under s. 968.04 or, if applicable, by citation under s. 778.25 or 778.26....
....
(c) If the circuit court finds a defendant guilty in a forfeiture action based on a violation of an ordinance, the court shall render judgment as provided under ss. 800.09 and 800.095
....
Section 778.01, concerning collection of forfeitures imposed by statute, provides in part:
Where a forfeiture imposed by statute
shall be incurred it may be recovered in a civil action unless the act or omission is punishable by fine and imprisonment or by fine or imprisonment
. The word forfeiture, as used in this chapter, includes any penalty, in money or goods.
Section 778.10, concerning collection of forfeitures for violations of county, town, city or village ordinances or regulations, provides in part:
Municipal forfeitures, how recovered. All forfeitures imposed by any ordinance or regulation of any county, town, city or village, or of any other domestic corporation may be sued for and recovered, under this chapter, in the name of the county, town, city, village or corporation
.... If the ordinance or regulation imposes a penalty or forfeiture for several offenses or delinquencies the complaint shall specify the particular offenses or delinquency for which the action is brought, with a demand for judgment
for the amount of the forfeiture....
Section 799.01 provides in part:
Applicability of chapter. (1) EXCLUSIVE USE OF SMALL CLAIMS PROCEDURE. Except as provided in ss. 799.02(1) and 799.21(4) and except as provided under sub. (2), the procedure in this chapter is the exclusive procedure to be used in circuit court in the following actions
:
....
(b) Forfeitures
. Actions to recover forfeitures except as a different procedure is prescribed in chs.
23, 66, 345 and 778, or elsewhere, and suchdifferent procedures shall apply equally to the state, a county or a municipality regardless of any limitation contained therein.
Section 799.04 provides in part:
Relation of this chapter to other procedural rules. (1) GENERAL. Except as otherwise provided in this chapter, the general rules of practice and procedure in chs. 750 to 758 and 801 to 847 shall apply to actions and proceedings under this chapter
.
Section 799.10 provides in part:
Case file, case docket. (1) CLERK TO MAINTAIN DOCKET AND CASE FILE. The clerk shall maintain a docket of small claims cases under this chapter, which docket may be in loose leaf or card form, and a case file for each case in which there are papers other than the ones listed in s. 799.07 to be filed.
(2) ENTRIES; WHAT TO CONTAIN. Entries in the docket shall include:
....
(f) The judgment or final order entered, date of entering it and the amount of forfeiture or damages, costs and fees due to each person separately
;
(g) Satisfaction of forfeiture, or commitment for nonpayment of forfeiture or judgment
;
(h) The date of mailing notice of entry of judgment or final order as provided in s. 799.24
;
....
(4) TIME OF DOCKET ENTRIES. Entries in the docket shall be made not later than the time of the entry of the judgment or final order, or as soon thereafter as possible. No docket entries need be made in uncontested cases where the action is for a money forfeiture charging violation of a parking regulation
.
Section 799.24(1) provides:
ENTRY OF JUDGMENT OR ORDER; NOTICE OF ENTRY THEREOF. When a judgment or an order is rendered, the judge, court commissioner or clerk shall immediately enter it in the case docket and note the date thereof which shall be the date of entry of judgment or order. The clerk, except in municipal and county forfeiture actions
, shall mail a notice of entry of judgment to the parties or their attorneys at their last-known address within 5 days of its entry. Any such judgment shall be a docketed judgment for all purposes upon payment of the fee prescribed in s. 814.62(3)(c)
. The clerk shall enter the docketed judgment in an appropriate judgment record.
Sections 799.01(1)(b) and 799.04(1) contain the order of priority of chapters 23, 66, 345, 778, 799, 750 to 758, and 801 to 847. As explained in 77 Op. Att'y Gen. 270, 271 (1988):
These statutes tell us that in actions to recover forfeitures for violations of statutes [or ordinances],
the procedures set forth in chapters 23, 66, 345 and 778 have priority. Where those chapters are not applicable [or do not contain any procedure], chapter 799 is accorded the next level of priority in establishing the procedure to be used. Finally, where chapter 799 is not applicable [or does not contain any procedure], the rules of practice and procedure in chapters 750 to 758 and 801 to 847 are.
Starting in reverse order of priority, chapters 801 to 847 do contain collection remedies for judgments in civil actions. See
, e.g.
, ch. 812 (garnishment), ch. 815 (executions) and ch. 816 (supplementary proceedings). Under section 815.05(8), postjudgment interest also accrues at the rate of twelve percent per annum. Chapter 785 and section 815.02 also provide for the enforcement of non-monetary aspects of a judgment through the initiation of contempt proceedings.
The "exclusive procedure" language contained in section 799.01 was intended by the Legislature to overrule the supreme court's decision in State v. Hervey
, 113 Wis. 2d 634, 642, 335 N.W.2d 607 (1983), and eliminate a plaintiff's option to commence an action using either the procedures contained in chapter 799 or those contained in chapters 801 to 847. See
77 Op. Att'y Gen. at 272. Despite that language, by virtue of the explicit provisions contained in section 799.04(1), the provisions of chapters 801 to 847 generally do apply to proceedings under chapter 799, including forfeiture actions, except where chapter 799 contains contrary procedures. See
52 Op. Att'y Gen. 157, 158 (1963), which concludes that "[a] small claims judgment docketed in the county court has equal force and effect as a judgment docketed in the circuit court...."
One issue which you raise is whether section 799.24(1) contains a contrary procedure with respect to municipal forfeiture actions, since the second sentence of that statute provides that, "except in municipal and county forfeiture actions," the clerk is required to mail notice of entry of judgment to the parties. The very next sentence of that statute then provides that "[a]ny such judgment shall be a docketed judgment for all purposes upon payment of the fee...." Section 799.24(2) also indicates that a "docketed judgment" constitutes a lien on land under section 806.15. You suggest that, if section 799.24(1) precludes the docketing of judgments in municipal forfeiture actions, it could be argued that such a provision precludes the use of ordinary collection remedies which generally follow the docketing of civil judgments.
A plain reading of the two sentences to which you refer indicates that they are independent of each other. The second sentence of section 799.24(1) deals only with the mailing of notice of entry. The phrase "[a]ny such judgment" in the next sentence is all inclusive, referring to all judgments, not just those with respect to which notice of entry has been mailed. The cross reference to section 814.62(3) concerning payment of the applicable fee incorporates by reference section 814.61. Neither section 814.61 nor section 814.62(3) prescribes a fee for mailing notice of entry.
Even though the statutory language is not ambiguous, a court "may undertake historical analysis to reinforce and demonstrate that a statute is plain on its face." State v. Dodd
, 185 Wis. 2d 560, 566-67, 518 N.W.2d 300 (Ct. App. 1994). Section 799.10(2)(f) requires the clerk to docket judgments in civil forfeiture actions involving proceedings using small claims procedure under chapter 799. Chapter 299, Stats. (1961), which contains what essentially is present small claims procedure, was enacted in chapter 519, Laws of 1961. See
52 Op. Att'y Gen. at 160. As initially enacted in chapter 519, section 9, Laws of 1961, section 299.24(1), Stats. (1961), provided that, except in certain cases involving enforcement of parking regulations, all judgments in small claims proceedings were docketed in county court. Under section 299.24(2), Stats. (1961), upon payment of a fee separate from the small claims docketing fee, a transcript of that judgment could be obtained and docketed in circuit court and "be carried into execution... in the same manner and with like effects as the judgments thereof...." Following the issuance of 52 Op. Att'y Gen. 157, that provision was repealed and the clerk was directed to enter small claims judgments in an appropriate judgment docket book. See
ch. 407, sec. 16, Laws of 1963.
Shortly after chapter 299 was initially enacted, it was amended by what might now be characterized as a trailer bill, chapter 618, Laws of 1961. Both the clause indicating that service of notice of entry by the clerk is not required in municipal forfeiture actions and the sentence indicating that a docketed judgment is a lien on land were inserted in section 299.24(1), Stats. (1961), at that time. See
ch. 618, secs. 5-7, Laws of 1961. The drafting file indicates that the clause "except in municipal and county forfeiture actions" was inserted as a separate amendment at the request of Milwaukee County. It is a reasonable inference from the legislative history that the county did not want its clerk's office burdened with having to docket and mail notice of entry in every municipal forfeiture action. I discern no intention on the part of the Legislature at that time to alter the preexisting requirement in the initial sentence of section 299.24(1), Stats. (1961), that all judgments in small claims proceedings be "entered in the case docket." I therefore construe the phrase "[a]ny such judgment shall be a docketed judgment" to refer to all judgments actually docketed under the procedure contained in chapter 799.
That construction also harmonizes the provisions of section 799.24(1) with those contained in section 799.10. Section 799.10(2)(f), which governs small claims judgment docketing procedure, contains no indication that judgments in forfeiture actions are not to be docketed. Section 799.10(2)(g), which requires the clerk to docket satisfactions of judgment in forfeiture actions, also suggests that the judgments in forfeiture actions must first be docketed. Section 799.10(4) indicates that such judgments are not to be docketed only in certain forfeiture actions involving parking violations. Only section 799.10(2)(h), which requires docketing of notice of entry of judgment, is generally inapplicable in municipal forfeiture actions.
Since there are no procedures in chapter 799 which are contrary to or inconsistent with the ordinary collection remedies found in chapters 801 to 847, it is necessary to examine the provisions of chapters 23, 66, 345 and 778 in order to ascertain whether they contain procedures contrary to or inconsistent with the use of ordinary civil collection remedies. Chapter 23 affirmatively indicates that such remedies may be utilized to collect forfeitures for conservation violations, since it provides that "[a]ll civil remedies are available in order to enforce the judgment of the court...." Sec. 23.79(5), Stats.
Chapter 66 contains a number of different provisions. Section 66.119(2)(b), concerning municipal citations, provides that "[i]ssuance and filing of a citation does not constitute commencement of an action" but that "[t]he issuance of a citation by a person authorized to do so... shall be deemed adequate process to give the appropriate court jurisdiction over the subject matter of the offense for the purpose of receiving cash deposits, if directed to do so, and for the purposes of sub. (3)(b) and (c)." Section 66.119(3)(b) permits the entry of judgment only if the defendant appears personally and pleads guilty or no contest. Since section 66.119(3)(c) does not contemplate the imposition of any forfeiture greater than the cash deposit, no further collection is possible under that statute. Section 66.119(3)(d) permits the entry of judgment only if the defendant has been personally served. Although the question is a close one, it appears that section 66.119 contemplates that a proceeding commenced by the issuance of a citation is to be treated as an ordinary civil action if the defendant is personally served under section 66.119(3)(e) or appears personally and admits liability by pleading guilty or no contest. In those situations, a judgment is to be entered, and postjudgment docketing and collection procedures applicable to proceedings under chapter 799 would apply. Since there is nothing in section 66.119 which is inconsistent with the docketing and collection of such judgments under the procedures contained in chapters 799 and 801 to 845, it appears that ordinary remedies for the collection of judgments in civil actions may be utilized once such judgments are entered under section 66.119(3)(b) or (d).
Under section 66.12(1)(a), municipal forfeitures "may be collected in an action in the name of the city or village before the municipal court or in an action in... a court of record." With respect to those municipalities which do have municipal courts, section 800.095(7) provides that "a municipality may enforce the judgment in the same manner as for a judgment in an ordinary civil action." Those municipalities that do not have access to municipal courts must bring such actions in circuit court under section 66.12(1)(c), which provides: "If the circuit court finds a defendant guilty in a forfeiture action based on a violation of an ordinance, the court shall render judgment as provided under ss. 800.09 and 800.095." Even if this provision were construed so as not to expressly incorporate the substantive provisions contained in section 800.095, there still would be no inconsistency between the provisions of section 66.12 and the use of ordinary civil collection remedies under chapters 801 to 845.
Chapter 345, concerning forfeitures for traffic violations, contains language deferring to the provisions of chapter 799, which, as I have indicated, incorporates the provisions of chapters 801 to 845 concerning ordinary collection remedies. Section 345.20(2)(a) provides that "[w]here no specific procedure is provided in ss. 345.21 to 345.53, ch. 799 shall apply to such actions in circuit court." I find no procedure in sections 345.21 to 345.53 which is contrary to or inconsistent with those involving the use of ordinary collection remedies.
Although chapter 778, concerning collection of forfeitures for violations of county, town, city or village ordinances, does not contain language deferring to the provisions of chapter 799, section 778.01 also indicates that forfeitures imposed by statute may be "recovered in a civil action" except where an act is punishable by fine or imprisonment. Section 778.10 also indicates that municipal forfeitures "may be sued for and recovered" in the form of a "judgment." This language is entirely consistent with the use of ordinary remedies for the collection of judgments in civil actions.
I therefore conclude that a judgment rendered in a civil action in circuit court for payment of a forfeiture can and should be docketed, does accumulate postjudgment interest at the rate of twelve percent per annum and may be enforced using those collection remedies which are available in connection with judgments entered in other civil proceedings.
Sincerely,
James E. Doyle
Attorney General
JED:FTC:vmz
A judgment rendered in circuit court for payment of a forfeiture can and should be docketed, does accumulate postjudgment interest at the rate of twelve percent per annum and may be enforced using those collection remedies which are available in connection with judgments entered in other civil proceedings.
