JENNIFER R. KOENIG AND JENNY'S BUNCH HOME DAY CARE, PETITIONERS-RESPONDENTS,
PIERCE COUNTY DEPARTMENT OF HUMAN SERVICES, RESPONDENT-APPELLANT
on Briefs January 5, 2016
[Copyrighted Material Omitted]
from a judgment of the circuit court for Pierce County: JAMES
J. DUVALL, Judge. Cir. Ct. No. 2014CV52.
behalf of the respondent-appellant, the cause was submitted
on the briefs of Lori M. Lubinsky and Timothy M. Barber of
Axley Brynelson, LLP, Madison.
behalf of the petitioners-respondents, the cause was
submitted on the brief of Timothy J. O'Brien of Bakke
Norman, S.C., New Richmond.
Stark, P.J., Hruz and Seidl, JJ.
Wis.2d 639] STARK, P.J.
The Pierce County Department of Human Services (DHS) appeals
a judgment reversing an administrative panel's decision
that Jennifer Koenig engaged in child maltreatment in the
operation of her day care business. The circuit court
concluded reversal was warranted because Koenig's due
process rights were violated during the administrative
proceedings. DHS argues that conclusion was erroneous, and it
also contends the court erred by denying its motion to
dismiss. We reject these arguments and affirm.
[¶2] Koenig operated a day care business in
Pierce County known as Jenny's Bunch Home Day Care.
Because Koenig cared for more than three children under the
age of seven, the day care was required to be licensed by the
State of Wisconsin. See Wis. Stat. §
[¶3] On the afternoon of April 30, 2013,
A.N. arrived at Koenig's day care to pick up his
five-month-old son, H.A.N. Koenig told A.N. that H.A.N. was
asleep. However, A.N. observed that H.A.N. was limp, and A.N.
was unable to wake the child. A.N. sought medical attention
for H.A.N., who was ultimately diagnosed with a brain injury,
a subdural hematoma, and retinal hemorrhages.
Wis.2d 640] [¶4] A report of suspected child
abuse was made to DHS, and an investigation ensued. DHS
subsequently made an initial determination that Koenig had
abused H.A.N. On June 24, 2013, DHS notified Koenig of its
initial determination by a written " Notice of Child
Maltreatment Determination and Right to Appeal." On the
same date, DHS reported its determination to the Wisconsin
Department of Children and Families, the state agency
responsible for licensing day care centers. The Department of
Children and Families issued a notice of license revocation
to Koenig on July 1, 2013.
[¶5] On July 12, 2013, Koenig sent DHS a
" Child Maltreatment Determination Appeal Request."
On July 18, DHS's director informed Koenig her appeal
would be held in abeyance pending the outcome of any criminal
proceedings, pursuant to
Wis. Stat. § 48.981(3)(c)5m. On July 29, Koenig
objected to holding the matter in abeyance and requested a
hearing. She also requested copies of all documents, records,
and information in DHS's possession relating to its [367
Wis.2d 641] investigation and maltreatment finding. On August
8, DHS informed Koenig the abeyance period would not exceed
ninety days from July 15, the date it received her appeal
[¶6] On September 12, DHS provided Koenig
with heavily redacted copies of the documents she had
requested. Koenig objected to the redacted documents, and, on
October 8, DHS provided unredacted records totaling 559 pages
and 11 CDs/DVDs. On October 10, DHS notified Koenig it would
be conducting a " written review" of the child
maltreatment determination and would issue a written decision
" after October 15[.]" The October 10
correspondence further advised Koenig she had a right to
submit written evidence and argument in support of her
position, under Wis. Stat. § 68.09(4), but she needed to
do so by October 15 " for full consideration."
[¶7] By letter dated October 10, Koenig
objected to the short time allotted for her to submit
evidence and argument, particularly given that the unredacted
records were not provided to her until October 8. Koenig also
asserted DHS had previously indicated it would be conducting
an administrative appeal under Wis. Stat. § § 68.10
and 68.11, rather than a written review under Wis. Stat.
§ 68.09. DHS responded by letter dated October 11 and
stated it was treating Koenig's letter as a request for
an extension. DHS therefore extended the deadline for
submitting written evidence and argument to October 30. DHS
also clarified that " this is a written review pursuant
to Wis. Stat. § 68.09." Koenig responded on October
15, agreeing that she had requested additional time to submit
evidence and argument " due to [DHS's] delayed
response to our request for documents[,]" but asserting
" the time for review should [not] have been extended
[367 Wis.2d 642] beyond the 15 days called for in the statute
in the first instance." Koenig further asserted she was
" not conceding or stipulating that [DHS] has followed
the proper procedures in providing review" and was not
" waiving any claims or defenses."
[¶8] In compliance with DHS's directive,
Koenig submitted written evidence and argument in support of
her position on October 29. On October 31, DHS issued a
" Child maltreatment determination review and written
notice of decision," which affirmed the initial
determination of maltreatment. The document notified Koenig
she had a right to appeal DHS's determination by
requesting an administrative decision within thirty days,
pursuant to Wis. Stat. § 68.10.
[¶9] On November 27, Koenig notified DHS she
was appealing its October 31 decision. The case therefore
proceeded under Wis. Stat. § § 68.10 and 68.11. A
hearing was scheduled for December 12, but was postponed
until January 14, 2014. The hearing was ultimately held on
January 14 and 27, before a three-person panel. On February
10, the panel issued a written decision upholding DHS's
child maltreatment determination.
[¶10] Koenig then commenced the instant
certiorari action, using the " complaint and order"
procedure set forth in Wis. Stat. § 801.02(5). On March
7, 2014, she filed a " Complaint for Judicial Review by
Certiorari Pursuant to Wis. Stat. § 68.13," naming
DHS as the defendant/respondent. Then, on March 18, the
circuit court entered an order requiring DHS " to answer
[367 Wis.2d 643] the Complaint and to provide the complete
Record of Proceedings, including the prepared transcripts of
the hearing, to this Court within ten days of being served an
authenticated copy of the Complaint and this Order."
[¶11] Authenticated copies of the complaint
and order were served on DHS's director on March 19. On
March 24, DHS moved to dismiss, arguing: (1) Koenig failed to
properly commence the certiorari action; (2) the action was
not commenced within the thirty-day deadline for bringing
certiorari actions; (3) Koenig improperly named DHS as the
defendant/respondent instead of the administrative appeal
panel; and (4) Pierce County was not properly served because
the complaint and order were not served on the county board
chairperson or county clerk.
[¶12] Hearings on DHS's motion were held
on April 22 and May 27, 2014. Before the second hearing,
Koenig moved the circuit court " for an amendment to the
Order dated and filed March 18, 2014." Koenig served the
authenticated complaint and original order on the Pierce
County clerk on April 28. The circuit court signed
Koenig's proposed amended order the following day, over
DHS's objection. The amended order modified the original
order by adding the following language: " The
plaintiff/petitioner shall serve defendant/respondent with an
authenticated copy of the Complaint and this Order on or
before May 16, 2014." On April 30, the amended order was
served on both the county clerk and DHS's director. At
the close of the May 27 hearing, the circuit court denied
DHS's motion to dismiss.
[¶13] The court heard oral argument on the
merits of Koenig's challenge to the panel's decision
on [367 Wis.2d 644] November 7, 2014. The court concluded the
panel's decision was supported by substantial and
credible evidence, and the panel applied the correct burden
of proof and standard of review. However, the court found
that Koenig's due process rights were violated during the
administrative proceedings in two ways: (1) when DHS failed
to complete its paper review of the initial determination of
child maltreatment within fifteen days after it received
Koenig's appeal request, contrary to Wis. Stat. §
68.09(3); and (2) when the administrative panel refused to
allow Koenig to cross-examine DHS's medical expert about
other cases in which he had testified. Finally, the court
concluded reversal of the panel's decision was the
appropriate remedy, rather than remanding for a new hearing,
because DHS's violation of the fifteen-day time limit set
forth in § 68.09(3) could not be cured on remand.
[¶14] A judgment reversing the panel's
decision and vacating DHS's determination of child
maltreatment was entered on November 25, 2014. This appeal
Wis.2d 645] STANDARDS OF REVIEW
[¶15] Typically, in an appeal from a circuit
court's decision on certiorari, we review the decision of
the underlying administrative body, not the circuit court.
Murr v. St. Croix Cty. Bd. of Adj., 2011 WI App 29,
¶ 19, 332 Wis.2d 172, 796 N.W.2d 837. The scope of our
review is limited to
(1) whether the [administrative body] kept within its
jurisdiction; (2) whether it proceeded on a correct theory of
law; (3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its judgment;
and (4) whether the evidence was such that it might
reasonably make the order or determination in question.
Ottman v. Town of Primrose, 2011 WI 18, ¶ 47,
332 Wis.2d 3, 796 N.W.2d 411.
[¶16] Here, however, with one exception we
are not called upon to review the administrative panel's
decision that Koenig abused H.A.N. Instead, DHS argues the
circuit court erred by denying its motion to dismiss the
certiorari action. Specifically, DHS argues dismissal was
proper because: (1) Koenig's use of the " complaint
and order" procedure set forth in Wis. Stat. §
801.02(5) was improper; (2) Koenig did not timely obtain an
order that complied with § 801.02(5); (3) Koenig
improperly named DHS as the defendant; and (4) Koenig failed
to timely serve either the chairperson of the Pierce County
board or the county clerk. These issues were not, and could
not have been, raised before the administrative panel.
Accordingly, we must review the circuit court's rulings
on these issues.
Wis.2d 646] [¶17] The parties agree that
whether a certiorari action was properly commenced under Wis.
Stat. § 801.02(5) is an issue of statutory
interpretation, which presents a question of law that we
review independently. See Nickel River Invs. v.
La Crosse Bd. of Review, 156 Wis.2d 429, 431, 457 N.W.2d
333 (Ct.App. 1990). The parties also agree that whether a
petition for certiorari was directed to the correct
respondent is a question of law for our independent review.
See State ex rel. Myers v. Smith, 2009 WI
App 49, ¶ 9, 316 Wis.2d 722, 766 N.W.2d 764. Whether
Koenig timely served the chairperson of the Pierce County
board or the county clerk involves the application of
undisputed facts to a legal standard, which also presents a
question of law. See Towne Realty, Inc. v.
Zurich Ins. Co., 201 Wis.2d 260, 267, 548 N.W.2d 64
(1996). Thus, our review of the issues underlying the circuit
court's decision to deny DHS's motion to dismiss is
[¶18] DHS also argues the circuit court
erred by concluding DHS and the administrative panel violated
Koenig's right to due process. This issue requires us to
review the actions of DHS and the administrative panel,
rather than the circuit court's decision. See
Jackson v. Buchler, 2010 WI 135, ¶ 38, 330
Wis.2d 279, 793 N.W.2d 826. However, whether Koenig's
right to due process was violated during the administrative
proceedings is a question of law subject to independent
appellate review. See id., ¶ 39. If
DHS or the administrative panel violated Koenig's right
to due process, [367 Wis.2d 647] they failed to act "
according to law," see State ex rel.
v. Schwarz, 219 Wis.2d 615, 628-29, 579 N.W.2d 698
(1998), and reversal is ...