Wisconsin Statutes
Wis. Stat. § 806.05 (2026)
Declaratory judgments against obscene matter
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806.05(1)(1) Grounds for and commencement of action. Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under ch. 985. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court.
806.05(1m)(1m) Interlocutory adjudication. After the issuance of the order to show cause under sub. (1), the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3) or (5), but only until such final judgment is made or until further order of the court.
806.05(2)(2) Right to defend; jury trial. Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.
806.05(3)(3) Default. If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.
806.05(4)(4) Speedy hearing; rules of evidence. If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3). If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901 to 911, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.
806.05(5)(5) Findings and judgment. If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808 and 809 by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.
806.05(6)(6) Admissibility in criminal prosecutions. In any trial for a violation of s. 944.21, the proceeding under this section and the final judgment of the circuit court under sub. (3) or (5) or the interlocutory adjudication under sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant’s knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.
806.05 AnnotationThe provision of sub. (1m) that permits an interlocutory judgment prior to an adversary adjudication and of sub. (6) that permits admission of the interlocutory judgment in evidence in a criminal trial are unconstitutional. State v. I, A Woman—Part II, 53 Wis. 2d 102, 191 N.W.2d 897 (1971).
806.05 AnnotationThe notice procedures under sub. (1) meet due process requirements. State v. Erotomic, 87 Wis. 2d 536, 275 N.W.2d 160 (Ct. App. 1979).
Notes of Decisions
Cited in 4
cases (1 in the last 5 years), 1979–2022 · leading case: Kucharek v. Hanaway, 714 F. Supp. 1499 (E.D. Wis. 1989).
Kucharek v. Hanaway, 714 F. Supp. 1499 (E.D. Wis. 1989). “Wis.Stat. § 806.05(4). According to plaintiffs, this concept of “literary, cultural, or educational character” is very different from the obscenity statute’s formula.”
La Crosse Trust Co. v. Bluske, 299 N.W.2d 302 (Wis. Ct. App. 1980). “July 30, 1980, Harrison filed a notice of cross-appeal from the amended judgment. The original judgment entered March 24, 1980 decided all issues adverse to the Bluskes.”
State v. Erotomic, 275 N.W.2d 160 (Wis. Ct. App. 1979). “On November 15, 1977, the District Attorney for Walworth County, in the name of the State, commenced an action for declaratory judgment to have the defendant magazines 1 declared obscene, pursuant to sec. 806.05, Stats. Upon the filing of the complaints by the State, the trial…”
State v. Daniel J. Mick, 982 N.W.2d 351 (Wis. Ct. App. 2022). “Notice of entry refers to a separate written document, other than the order, which is served by a party after a final order is entered, and which contains the date of entry of that final order.”
Wis. Stat. § 806.05(1): 1 case
State v. Erotomic, 275 N.W.2d 160 (Wis. Ct. App. 1979). “On November 15, 1977, the District Attorney for Walworth County, in the name of the State, commenced an action for declaratory judgment to have the defendant magazines 1 declared obscene, pursuant to sec. 806.05, Stats. Upon the filing of the complaints by the State, the trial…”
Wis. Stat. § 806.05(3): 1 case
State v. Daniel J. Mick, 982 N.W.2d 351 (Wis. Ct. App. 2022). “Notice of entry refers to a separate written document, other than the order, which is served by a party after a final order is entered, and which contains the date of entry of that final order.”
Wis. Stat. § 806.05(4): 1 case
Kucharek v. Hanaway, 714 F. Supp. 1499 (E.D. Wis. 1989). “Wis.Stat. § 806.05(4). According to plaintiffs, this concept of “literary, cultural, or educational character” is very different from the obscenity statute’s formula.”
Wis. Stat. § 806.05(5): 1 case
La Crosse Trust Co. v. Bluske, 299 N.W.2d 302 (Wis. Ct. App. 1980). “July 30, 1980, Harrison filed a notice of cross-appeal from the amended judgment. The original judgment entered March 24, 1980 decided all issues adverse to the Bluskes.”
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