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Milwaukee Academy v. Department of Children and Families

Court of Appeals of Wisconsin, District I

January 23, 2018

Milwaukee Academy, Petitioner-Respondent,
v.
Department of Children and Families, Respondent-Appellant.

         APPEAL from an order of the circuit court for Milwaukee County, No. 2015CV9085 RICHARD J. SANKOVITZ, Judge. Reversed and cause remanded.

          Before Brennan, P.J., Kessler and Dugan, JJ.

          BRENNAN, P.J.

         ¶1 In this case we address whether, under the relevant statute and Wisconsin Administrative Code provisions, a residential care center (RCC) for minors is prohibited from strip searching[1] a resident, regardless of the circumstances. The Department of Children and Families (DCF or the Department), which licenses such facilities, imposed a $500 forfeiture on Milwaukee Academy (M.A.) for allowing its staff to strip search a resident on June 18, 2014. DCF contended that under no circumstances was a strip search of a resident ever permitted. M.A. argues that the forfeiture is improper because the applicable statute and rules permit strip searches in certain circumstances that were present here.

         ¶2 We employ principles of statutory construction and construe the applicable provisions to achieve harmony between them and to avoid absurd results, and we apply due weight to the agency's interpretation of its own rule. We conclude that under the proper reading of the relevant provisions, a strip search of a resident may be permitted under WIS. ADMIN. CODE § DCF 52.31(1)(a) (Nov. 2017), [2] WIS. STAT. § 51.61(2015-16), [3] and WIS. ADMIN. CODE § DHS 94.24(2)(d) in certain specific circumstances. We therefore reverse the agency's decision that a strip search is never permissible and vacate the forfeiture order. However, because the record is insufficient for this court to make the determination of whether the particular strip search here was permitted, we remand the matter to the Department for a hearing to determine whether this strip search was permitted under the statute and code provisions.

         BACKGROUND

         ¶3 The Department made the following findings of fact.[4] The strip search for which DCF imposed the forfeiture took place at M.A., an RCC for girls ages ten through seventeen. DCF licenses and regulates M.A. The children placed in the facility include victims of sexual abuse, subjects of CHIPS cases, children suffering emotional and behavioral disorders, those who need respite care, and those who have been adjudicated delinquent as a juvenile. J. was a resident of M.A. The record does not reflect the reason for J.'s placement.

         ¶4 J. had cut her arms with a piece of plastic and had been taken by sheriff's deputies to the hospital and then to the Milwaukee Mental Health Center (MMHC). A deputy returned J. to M.A. at about 12:40 p.m. on June 18, 2014. Because J. had previous episodes of creating weapons, the staff thought J. might have done so again.[5] When staff members tried to confirm that she had no weapons hidden in her clothes, J. refused to talk and refused to cooperate.[6] J. was escorted to a "time out room, " and four female staff members were present. J. kicked one staff member in the head. The staff members took J. to the floor using a "team lateral restraint" and cut off some of her clothing. The staff then called for assistance from sheriff's deputies. A deputy returned, took J. to the hospital, and then, at 1:15 p.m., took J. to jail.

         ¶5 The following day, a staff member who was present prepared an internal report of the June 18 search that stated, "[s]taff were able to complete the body search but due to J. continuing to attempt to bite, kick, scratch and pinch, the nurse had to cut off her bras (she had two layers on) and shirt, and removed her pants." M.A. prepared and submitted a "Serious Incident Report" to DCF as required; it has conceded that "the resident was forcibly searched and her clothing was cut off[.]"

         ¶6 DCF sent a notice to M.A. on October 1, 2014, imposing a forfeiture. The stated basis for the forfeiture was that the June 18, 2014 search denied J.'s rights under Wis. Admin. Code § DCF 52.31(1)(a), which guarantees "residents receiving treatment services … rights that are comparable" to the patient rights under Wis.Stat. § 51.61 and Wis. Admin. Code ch. DHS 94. DCF interpreted those patient rights as prohibiting strip searches.

         ¶7 M.A. petitioned the Department of Hearings and Appeals (DHA) for review of the forfeiture assessment. DHA dismissed the petition for review, concluding that the penalty was properly imposed because the June 18, 2014 search violated the resident's rights under Wis. Admin. Code § DCF 52.31(1)(a). DHA stated that "[M.A.] basically conceded that strip search conduct by staff is not permitted under the residential care center for children licensing rules, " and there is "no legal authority … to grant any exception for 'extenuating circumstances' in a strip search of a resident in violation of … § [DCF] 52.31(1)(a)." DHA acknowledged that the RCC director's decision to conduct the strip search to determine whether the resident had hidden a weapon in her bra was "understandable" given her past history of doing exactly that. It was undisputed that the resident had previously hidden a plastic eating utensil in her bra which she had then used in an attempt to cut herself. Nonetheless, DHA determined that under no circumstances was an RCC ever permitted to conduct a strip search, citing to § DCF 52.31(1)(a) and Wis. Admin. Code ch. DHS 94 for authority. DHA also upheld the sanction, citing evidence that "a range of sanctions and penalties" had been considered, which proved DCF had exercised its discretion when it decided to impose the forfeiture.[7]

         ¶8 M.A. sought review of the Department's decision in the circuit court pursuant to Wis.Stat. § 227.57. The circuit court noted that RCC residents receiving treatment services have "rights that are comparable" to patient rights under Wis.Stat. § 51.61 and Wis. Admin. Code ch. DHS 94, and that under ch. DHS 94 inpatient rights do not include the absolute right to be free of strip searches. It reasoned that "[d]epending on the security needs and other circumstances of each kind of facility, [an RCC] resident's right to be free from strip-searches might be as limited as an inpatient's." Based on that conclusion, the circuit court set aside the Department's decision and remanded the dispute for further fact-finding on the security needs and other circumstances of RCC residents, as compared to those of "inpatients." On appeal, DCF argues no remand is appropriate here because as a matter of law, M.A. had no authority to strip search a resident of an RCC under any circumstances.

         STANDARD OF REVIEW

         ¶9 "Unless the court finds a ground for setting aside, modifying, remanding or ordering agency action … it shall affirm the agency's action." Wis.Stat. § 227.57(2). If a court finds that the agency "has erroneously interpreted a provision of law and [that] a correct interpretation compels a particular action, " it is to "set aside or modify the agency action" or "remand the case to the agency for further action under a correct interpretation of the provision of law." Wis.Stat. § 227.57(5).

         ¶10 In an appeal under Wis.Stat. ch. 227, we review the agency's decision, [8] not the decision of the circuit court. See Chicago & N.W. Transp. Co. v. Office of the Comm'r of R.R.s, 204 Wis.2d 1, 7, 553 N.W.2d 845 (Ct. App. 1996). "Courts give lesser, 'due weight' deference when the agency is charged by the legislature with enforcement of the statute and has experience in the area, but has not developed expertise that necessarily places the agency in a better position than the court to interpret the statute." Milwaukee Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶36, 324 Wis.2d 68, 781 N.W.2d 674');">781 N.W.2d 674. "Courts applying 'due weight' deference will sustain an agency's statutory interpretation if it is not contrary to the clear meaning of the statute and no more reasonable interpretation exists." Id. But courts will replace the agency's interpretation with a more reasonable interpretation if one exists. Id. Reviewing courts give no deference to an agency's statutory interpretation when the issue presents a matter of first impression, the agency has no experience relevant to the legal issue presented, or the agency's position on the issue has been so inconsistent as to provide no guidance. Id., ¶37. The Wisconsin Supreme Court has previously observed that "in most situations, applying due weight deference will lead to the same result as would applying no deference at all." Jamerson v. DCF, 2013 WI 7, ¶46, 345 Wis.2d 205, 824 N.W.2d 822');">824 N.W.2d 822 (citation omitted).

         ¶11 Interpretation of administrative rules is "subject to principles of statutory construction." Orion Flight Servs. v. Basler Flight Serv., 2006 WI 51, ¶18, 290 Wis.2d 421, 714 N.W.2d 130.

         DISCUSSION

         I. Due weight deference to the agency's interpretation is appropriate here.

         ¶12 Whether M.A. was authorized to conduct the strip search here requires interpretation of: (1) the Department's own code provisions, especially Wis. Admin. Code § DCF 52.31(1)(a); (2) the code provisions of the Department of Health Services, Wis. Admin. Code ch. DHS 94; and (3) a statute, Wis.Stat. § 51.61(1)(m). The parties agree that the proper deference to be given to DCF's interpretation of § DCF 52.31(1)(a) is the "due weight" or the "no deference" standard. In the words of DCF's brief, "[t]hat interpretation of the rule [§ DHS 94.24(2)(d)] is subject to this Court's due weight deference because DCF has some authority to interpret and enforce the rule but has not developed expertise placing it in a position superior to this Court to interpret it."[9] The record does not reflect whether this is an issue of first impression for DCF, but because DCF concedes that it has limited expertise on the issue and does not claim any greater ability than this court to interpret the rules, we will apply due weight deference to our review of DCF's interpretation of § DCF 52.31(1)(a) here. Milwaukee Symphony Orchestra, Inc., 324 Wis.2d 68, ¶36. And as our supreme court has noted: "in most situations, applying due weight deference will lead to the same result as would applying no deference at all." Jamerson, 345 Wis.2d 205, ¶46.

         II.DCF's interpretation of Wis. Admin. Code § DCF 52.31(1)(a) is that asa matter of law, an RCC ...


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