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    Wisconsin Lawyer
    May 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer


    Medication Abortions – Informed Consent to Abortion – 2011 Wis. Act 217

    Planned Parenthood of Wis. Inc. v. Schimel, 2016 WI App 19 (filed 24 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: The plaintiff’s declaratory-judgment action challenging new statutes dealing with informed consent to abortion and medication abortions (enacted as part of 2011 Wis. Act 217) was nonjusticiable.

    SUMMARY: Plaintiffs Planned Parenthood of Wisconsin Inc. (PPW) and Dr. Fredrik Broekhuizen sought and received from the circuit court a summary and declaratory judgment interpreting newly enacted Wis. Stat. section 253.10 (2013-14), related to voluntary consent for an abortion, and Wis. Stat. section 253.105, related to medication abortions. The attorney general and other named defendants appealed, contending that the plaintiffs’ entire action was nonjusticiable and therefore the circuit court erred in granting judgment.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a majority decision authored by Judge Gundrum, the court of appeals reversed, finding that the circuit court’s entry of declaratory judgment (see Wis. Stat. § 806.04) was erroneous because the plaintiff’s entire action was not justiciable.

    Wisconsin Statutes section 253.105(2) states that “[n]o person may give an abortion-inducing drug to a woman unless the physician who prescribed, or otherwise provided, the abortion-inducing drug for the woman … [i]s physically present in the room when the drug is given to the woman.” According to PPW’s protocol for medication abortions, the woman is provided with two medications at a PPW center in the presence of a physician: one of these medications is consumed at the center and the other (misoprostol) is self-administered by the woman 24 hours later (and not at a PPW center in a physician’s presence).

    The plaintiffs’ expressed concern was that the terms “give” and “given” in Wis. Stat. section 253.105(2) could be construed as meaning the second pill in PPW’s protocol is “given to the woman” when she actually administers that medication to herself, that is, introduces it into her body 24 hours after departing the clinic, in which case the physician would not be present and therefore would be potentially subject to liability.

    The appellate court concluded that the plaintiffs failed to explain how, based on their protocol, they reasonably could be found in violation of Wis. Stat. section 253.105(2) if the statutory terms “give” and “given” mean “administered,” that is, “when the drugs are introduced into the woman’s body by ingestion or other means.”

    “While it is undisputed the physician is not ‘present in the room’ when the second drug, misoprostol, is introduced into the woman’s body approximately twenty-four hours after the woman departs the clinic, the physician-presence requirement is only one of the elements that must be violated for potential liability. To be potentially liable under § 253.105(2), a physician or other clinic personnel must ‘give an abortion-inducing drug’ to a woman – i.e., introduce the drug into her body, according to Plaintiffs’ alternative meaning of ‘give’/’given.’ Plaintiffs do not even attempt to explain how it is a physician or other clinic personnel could violate this first element if ‘give’/’given’ means ‘when the drugs are introduced into the woman’s body’ when Plaintiffs themselves state throughout the record and their appellate briefing that it is the woman herself, not a physician or other clinic personnel, who ‘self-administers’ the misoprostol by introducing it into her own body approximately twenty-four hours after receiving the drug” (¶ 13).

    Thus, the plaintiffs failed to demonstrate that their undisputed protocol for medication abortions could place them in any potential jeopardy under the statute.

    The plaintiffs also sought a declaratory judgment with regard to Wis. Stat. section 253.10(3), which provides that an abortion cannot be performed or induced unless the woman has given voluntary and informed written consent. The physician who is to perform or induce the abortion must determine whether the woman’s consent is, in fact, voluntary. The plaintiffs argued that a physician could be liable pursuant to Wis. Stat. section 253.10(3) if a woman claims after an abortion that her consent to the abortion had not been voluntary, even if the physician had previously made a good-faith determination under the statute that her consent was in fact voluntary.

    In light of the record before it, the appellate court concluded that this action is also nonjusticiable with regard to Wis. Stat. section 253.10(3). After the statute became effective, PPW did not cease performing surgical abortions and no PPW physician changed his or her abortion practices (see ¶ 15).

    Said the court, “[w]e would expect that … Plaintiffs would point us to admissible record evidence demonstrating that Wis. Stat. § 253.10(3) actually has some detrimental effect on them or creates genuine fear that Plaintiffs may be subjected to detrimental effects based on the voluntary consent language” (¶ 13). Moreover, in their briefing on appeal, the defendants expressed their clear belief that Wis. Stat. section 205.10(3) will be governed by a good-faith standard, as the plaintiffs desire (see ¶ 18).

    Chief Judge Neubauer filed a dissenting opinion.

    Administrative Law

    License Revocation – Review

    Koenig v. Pierce Cty. Dep’t of Human Servs., 2016 WI App 23 (filed 17 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: Administrative revocation of the petitioner’s day care license violated her rights, and the circuit court properly reversed a panel’s decision.

    SUMMARY: Koenig operated a day care business licensed by the state under Wis. Stat. chapter 48. After a child died while in her care, the Pierce County Department of Human Services (DHS) opened an investigation and later revoked her license. Koenig appealed, and a three-person panel upheld the DHS’s determination of child abuse. Koenig then initiated this certiorari action, using the “complaint and order” procedures set forth in Wis. Stat. section 801.02(5).

    The circuit court found that the panel’s decision was supported by substantial evidence but also determined that Koenig’s due-process rights had been violated in several ways. The court reversed the panel’s decision but declined to remand for a new hearing because the DHS’s violation of a statutory time limit could not be cured on remand (see ¶ 13). The DHS appealed.

    The court of appeals affirmed in an opinion authored by Judge Stark. First, it concluded that Koenig properly used the complaint and order procedure set forth in Wis. Stat. section 801.02(5), rejecting the DHS’s contention that it requires a showing of an “emergency circumstance” (¶ 21). Second, Koenig timely obtained an order that complied with Wis. Stat. section 801.02(5). It was enough that she filed her complaint and requested the order within 30 days after the panel’s decision; the order itself need not be signed within the 30-day period (see ¶ 26).

    Third, Koenig properly named the DHS as the defendant, contrary to the DHS’s position that she should have named the three-person panel. The panel lacked a name and statutory identity and was not a “continuing entity” (¶ 30). Nor was the county the proper party (see ¶ 32). Fourth, Koenig complied with the service requirements of Wis. Stat. section 801.11(4)(a)1.

    The circuit court also properly determined that the DHS had violated Koenig’s due-process rights by failing to comply with the 15-day deadline for completing the paper review of the initial determination of child maltreatment after receiving her request, contrary to Wis. Stat. section 68.09(3) (see ¶ 36). It rejected the DHS’s “unreasonable” contention that the 15-day period required only the commencement of the review, not its completion (see ¶ 38). Moreover, the statutory mandate was mandatory, not “directory” (¶¶ 39, 55). Finally, the circuit court properly found that a remand for a new hearing was not an appropriate remedy (see ¶ 57).

    Criminal Records

    Department of Justice Criminal Records Database – Claim That Database Contains Misleading Information

    Teague v. Van Hollen, 2016 WI App 20 (filed 11 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: The circuit court correctly dismissed a variety of statutory and constitutional claims premised on what the plaintiff claims is misleading information about him in the criminal records database maintained by the Wisconsin Department of Justice (DOJ).

    SUMMARY: The dispute in this case centers on the DOJ’s use of a large criminal history database. Plaintiff Teague obtained from the DOJ a so-called innocence letter, which in effect certifies that, as of a particular day in 2009, Teague had no criminal convictions and that Teague should not be confused with another individual, ATP, who has a criminal history. The potential for confusion arose because ATP has in the past given Teague’s name to authorities as an alias, and this is a fact that is reflected in the DOJ’s database.

    Teague’s claims (both statutory and constitutional) arose from his contention that, despite the fact that the DOJ has memorialized Teague’s lack of criminal history in an innocence letter, when a member of the public submits a name-based search request using Teague’s name and birthdate, the DOJ would release a report that contains the criminal history record of ATP. This report lists Teague’s name as an alias for ATP’s name. Teague argued that the DOJ is obligated to provide requesters with an explanation to prevent them from falsely suspecting that Teague might have the criminal history referred to in the report (the criminal history that in fact belongs to ATP).

    The circuit court dismissed Teague’s claim under the Wisconsin Public Records Law; it dismissed Teague’s request for an order, under the authority of Wis. Stat. section 19.70, requiring the DOJ to in some manner correct or supplement the database; and it dismissed Teague’s equal-protection and due-process claims. In a decision authored by Judge Blanchard, the court of appeals affirmed.

    With regard to his claim that relies on the public records law, Teague argued that the DOJ should be enjoined from releasing ATP’s criminal history (with Teague’s name listed as an alias) in response to name-based requests using Teague’s name and date of birth.

    Said the court in reply, “[w]hen it comes to challenges to decisions by authorities under the public records law to release records, as opposed to decisions by authorities to withhold records, the legislature has precluded judicial review except in defined circumstances not presented here. We conclude that, in enacting Wis. Act 47 in 2003, in particular the provisions now found at Wis. Stat. § 19.356, the legislature decided to preclude judicial review of a public records law claim under these circumstances” (¶ 19).

    Teague also sought an order under Wis. Stat. section 19.70 (titled “Rights of Data Subject to Challenge; Authority Corrections”)requiring the DOJ to in some manner correct or supplement the database. Judge Blanchard conducted a statutory analysis to conclude that Teague’s claim for declaratory and injunctive relief under this statute should be rejected.

    The two concurring judges who heard this case (Judge Higginbotham and Judge Sherman) agreed that Teague’s claim should be rejected but did not join Judge Blanchard’s opinion; they (a majority on this issue) concluded that Teague’s argument was not fully developed and that the appellate court should follow its usual practice of not addressing undeveloped arguments (see ¶ 72). The concurring judges joined the remainder of Judge Blanchard’s opinion.

    Finally, the court considered and rejected a variety of equal-protection and due-process (both substantive and procedural) claims that Teague advanced (see ¶¶ 55-69).

    Judge Sherman filed a separate concurring opinion.

    Family Law

    Child-Abuse Injunctions – Conduct

    S.O. v. T.R. (In the Interest of C.R.), 2016 WI App 24 (filed 17 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: In child-abuse-injunction cases, a court may consider only pre-petition evidence when determining grounds for an injunction; evidence of treatment or steps taken to ameliorate a child’s symptoms is not limited to evidence specific to the child.

    SUMMARY: This case arises out of a hearing on remand after the appellate court’s unpublished decision in a 2014 appeal. Based on that opinion, the statute, and the evidence, the circuit court found that it was limited to the facts as of February 2013, the date of the petition for the child-abuse injunctions, and it reinstated the injunctions for a 90-day period (see ¶ 13). The respondent appealed.

    The court of appeals affirmed in an opinion authored by Judge Curley. Initially, the court rejected T.R.’s argument that the issues here had been waived by not raising them in the first appeal. Rather, they involved statutory ambiguities that necessarily arose in the course of the circuit court’s interpretation of the statutes (see ¶ 26).

    Turning to those issues, the court first held that “[o]nly pre-petition evidence may be considered for the purpose of determining whether grounds exist for issuance of a child abuse injunction” (¶ 27). Most important was the statutorily mandated 14-day time period for holding a hearing after the issuance of a temporary restraining order (see ¶ 32). The court also looked to the need to avoid unreasonable results and the use of the past tense in Wis. Stat. section 813.122(6)(a)3. (see ¶¶ 35, 37). Nonetheless, “post-filing evidence regarding treatment obtained or steps taken to ameliorate the child’s symptoms may be considered for the purpose of determining the type and extent of any visitation between the parent and child if the trial court issues the injunction” (¶ 40).

    Second, “[e]vidence of treatment obtained or steps taken to ameliorate a child’s symptoms is not limited to evidence of treatment obtained or steps taken specifically for the child” (¶ 41). Also within the statute is “evidence of the treatment obtained or steps taken by a parent, guardian, or legal custodian to address and remedy his or her actions” that benefit the child (¶ 43).

    Guardianships – Termination of Parental Rights – Grandparents

    M.L.-F. v. Oneida Cty. Dep’t of Social Servs. (In re Guardianship of B.C. L.-J.), 2016 WI App 25 (filed 23 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: A termination of parental rights did not require dismissal of a previously filed, but stayed, Wis. Stat. chapter 54 guardianship petition filed by the child’s grandparents; under the facts, however, the petitions were properly denied.

    SUMMARY: Neglect by parents of their young children resulted in a children in need of protection or services (CHIPS) action and foster home placement. The children’s grandparents, however, maintained contact and filed a Wis. Stat. chapter 54 petition for guardianship. At a later termination of parental rights (TPR) hearing, the court heard from the grandparents and acknowledged that severing that relationship would harm the children. Nonetheless, the court granted the TPR order and eventually dismissed the chapter 54 petitions as essentially incompatible with the Wis. Stat. chapter 48 proceedings.

    The court of appeals affirmed in an opinion authored by Judge Stark. The central issue was the correctness of the trial judge’s conclusion that Wis. Stat. section 48.977(8)(b) compelled dismissal of the chapter 54 guardianship petitions (see ¶ 15).

    “We agree with M. L.-F.’s [the grandparent’s] interpretation of Wis. Stat. § 48.977(8)(b). The statute is not ambiguous. It clearly states that nothing ‘in this section’ prohibits a person from filing a guardianship petition under Wis. Stat. ch. 54. See § 48.977(8)(b). The words ‘in this section’ unambiguously refer to the statutory section in which they are found – namely, § 48.977. In other words, § 48.977(8)(b) provides that, if there is something in the text of § 48.977 that would prohibit a person from filing a guardianship petition under that section, the person may nevertheless file a petition under ch. 54. Here, § 48.977(4)(a) prohibits M. L.-F. from filing § 48.977 guardianship petitions because she is not one of the persons whom para. (4)(a) permits to do so. Nonetheless, § 48.977(8)(b)
    provides that, despite this prohibition, M. L.-F. is not precluded from filing ch. 54 guardianship petitions” (¶ 18).

    The court of appeals concluded, however, that the trial judge properly dismissed the Wis. Stat. chapter 54 guardianship petitions (see ¶ 22). “Given the court’s specific refusal during the TPR proceedings to award the grandparents guardianship of the children, a subsequent decision to grant M. L.-F.’s Wis. Stat. ch. 54 guardianship petitions would have directly conflicted with the findings and orders entered in the TPR cases” (¶ 23).


    Retail Sales Tax – Taxability of Markup Charged by Online Hotel Reservation Company

    Department of Revenue v. Orbitz LLC, 2016 WI App 22 (filed 11 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: The markup charge collected by an online travel company for the service of booking hotel rooms is not subject to Wisconsin’s retail sales tax.

    SUMMARY: Orbitz is an online travel company that contracts with hotels (which are not owned, operated, or managed by Orbitz and which include hotels in Wisconsin) for the right to facilitate reservations for travelers at those hotels at “net rates” that the hotels determine. The traveler pays the net rate plus a markup charged by Orbitz. Retail sales tax is not collected from travelers on the markup amount nor is retail sales tax remitted to the Wisconsin Department of Revenue by Orbitz on the markup Orbitz collects. The issue in this case was whether Orbitz owes retail sales taxes on the markups.

    Wisconsin Statutes section 77.52(2)(a)1. provides that the sales tax applies to the following types of services: “The furnishing of rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public.” The Tax Appeals Commission concluded that Orbitz’s reservation facilitation services are not among the taxable services enumerated in this statute. The commission stated that Orbitz “does not furnish lodging to travelers in any traditional sense of the word” and that Orbitz “lacks the essential functions and characteristics of a business which provides lodging accommodations” (¶ 20).

    The commission pointed out that Orbitz does not own hotels or motels, does not check people in or provide them with access to the rooms, and does not provide cleaning, room, or maintenance services. While recognizing that the word “furnish” could have a broader meaning and that the statute would therefore be ambiguous, the commission resolved the ambiguity in favor of the taxpayer (as it must) (see ¶¶ 21-22).

    The commission also concluded that Wis. Stat. section 77.52(2)(a)1. does not impose a sales tax on those selling the service of making reservations on behalf of members of the public with those who “furnish[] rooms or lodging” (¶ 23).

    In a decision authored by Judge Sherman, the court of appeals affirmed the decision of the circuit court, which affirmed the commission’s interpretation of Wis. Stat. section 77.52(2)(a)1. described above. Said the appellate court, “[w]e conclude that the Commission’s interpretation is not contrary to the clear meaning of the statute and there is not another, more reasonable interpretation of the statutory language” (¶ 24).

    Unemployment Insurance

    Appeals – Venue – Competency

    DWD v. LIRC, 2016 WI App 21 (filed 17 Feb. 2016) (ordered published 30 March 2016)

    HOLDING: The circuit court properly dismissed, on grounds of improper venue, appeals to the circuit court brought by the state.

    SUMMARY: The Department of Workforce Development (DWD) appealed awards of unemployment benefits by the Labor and Industry Review Commission (LIRC) for seven workers. All seven appeals were brought in Kenosha County, but only one of the workers had a “connection” to Kenosha. The circuit court dismissed the six actions with no connection to Kenosha on grounds that the DWD had not complied with Wis. Stat. section 102.23(1)(a): essentially, the DWD brought the cases in an improper venue, which meant the court lacked competency to proceed (see ¶ 2).

    The court of appeals affirmed in an opinion authored by Judge Hagedorn. Wisconsin Statutes section 102.23(1)(a) provides that when the plaintiff is a state agency, the action must be brought in the circuit court of the county where the defendant resides, unless the parties and the court otherwise agree (see ¶ 5).
    Here, there was no stipulation, and only one of the seven cases was brought where a defendant resided (Kenosha County).

    The case law distinguishing competency and jurisdiction “is not a beacon of clarity” (¶ 8). The cases speak of “strict compliance” with statutory procedures yet allow some flexibility. The key is whether a mandate is “central to the statutory scheme” (¶ 9).

    “We agree with the circuit court that venue is central to the statutory scheme, not a mere technical nicety that can be overlooked” (¶ 13). “[T]he statute’s venue requirement represents a deliberate choice by the legislature to decentralize the place of review and to protect the rights of individual defendants. This places the convenience of defendants above that of consistent judicial resolution and the convenience of the plaintiff state agency” (id.).

    While conceding that the “muddled case law on jurisdiction and competency generally” does not “definitively” specify the proper remedy, the court held that dismissal was appropriate in this case
    (¶ 21).

    “We take from these statutes and cases the following principles. First, the default remedy when a court lacks competency is dismissal per Wis. Stat. § 802.06(8). Second, where the lack of competency derives from an improperly venued case, the court may transfer the case to a proper venue so long as the error arose from a good faith error.… Furthermore, transfer tolls the time limits for filing and allows the case to proceed so long as it was timely filed initially” (¶ 24). The court rejected the DWD’s contention that “transfer and consolidation” was the proper remedy for the other six cases.

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