from an order of the circuit court for Milwaukee County, No.
2015CV9085 RICHARD J. SANKOVITZ, Judge. Reversed and cause
Brennan, P.J., Kessler and Dugan, JJ.
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 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
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),  WIS. STAT. §
51.61(2015-16),  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.
The Department made the following findings of
fact. 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.
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. When staff members tried
to confirm that she had no weapons hidden in her clothes, J.
refused to talk and refused to cooperate. 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.
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[.]"
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.
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.
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.
"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).
In an appeal under Wis.Stat. ch. 227, we review the
agency's decision,  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).
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.
Due weight deference to the agency's
interpretation is appropriate here.
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." 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 ...