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Koenig v. Pierce Cnty. Dep't of Human Servs.

Court of Appeals of Wisconsin

February 17, 2016


         Submitted on Briefs January 5, 2016

Page 633

[Copyrighted Material Omitted]

Page 634

         APPEAL from a judgment of the circuit court for Pierce County: JAMES J. DUVALL, Judge. Cir. Ct. No. 2014CV52.

         On 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.

         On behalf of the petitioners-respondents, the cause was submitted on the brief of Timothy J. O'Brien of Bakke Norman, S.C., New Richmond.

         Before Stark, P.J., Hruz and Seidl, JJ.


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         [367 Wis.2d 639] STARK, P.J.

         [¶1] 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. § 48.65(1).[1]

          [¶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.

          [367 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." [2] On July 18, DHS's director informed Koenig her appeal would be held in abeyance pending the outcome of any criminal proceedings, pursuant to

Page 636

Wis. Stat. § 48.981(3)(c)5m.[3] 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 request.

          [¶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.[4] 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.

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          [¶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.[5] 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.

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          [¶14] A judgment reversing the panel's decision and vacating DHS's determination of child maltreatment was entered on November 25, 2014. This appeal follows.

         [367 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.[6] 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.

          [367 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 de novo.

          [¶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. Warren

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v. Schwarz, 219 Wis.2d 615, 628-29, 579 N.W.2d 698 (1998), and reversal is ...

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