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Brief of appellant:
Case no: 24AP1175
Case name: Minority Business Association of Wisconsin v Wisconsin Department of Agriculture, Trade, and Consumer Protection
Filed in Court of Appeals District: II
Filing attorneys: Ryan Walsh, Amy Miller, Teresa Manion
Law firm / agency: Eimer Stahl
Circuit Court: Waukesha County
Judge: Michael Aprahamian
Introduction
This appeal tests the constitutionality of a law licensing the Department of Agriculture, Trade, and Consumer Protection (“DATCP”), the most powerful agency in Wisconsin, to demand immediate “access to . . . any document . . . of any person engaged in business” and to “require” from her sworn “reports” or “answers” to any question, to be submitted to DATCP at whatever time and in whatever manner that it dictates. Anyone who “refuses” these commands, or even “fails” to grant instant “access,” is a criminal. Perhaps even a serial criminal, since each failure is a separate offense punishable by up to a year in jail. If instead she submits to the agency’s show of authority and hands over her files or gives a compelled answer, and the agency spots a possible violation of a statute or rule (that it adopted), it can then refer the matter to a district attorney for prosecution. All of this, Justice Abrahamson noted decades ago, “impos[es] a heavy penalty and a serious stigma on [the] violator.”
Shocking on their face, these provisions are more astonishing for what they leave out. They say nothing about a warrant. They do not require probable cause. (Or any cause.) They do not mandate prior notice. And they do not afford the target even an opportunity to seek pre-compliance review of the agency’s demands before a neutral decisionmaker — much less any review that would conclude before she incurs criminal liability.
The power conferred by this statute comes with only one limitation, if it can even be called that. The document to be seized, place to be searched, or question to be answered must be “relevant to any matter which [DATCP] may investigate”—which is practically everything. As Justice Abrahamson noted, DATCP’s regulations — and, thus, its power to investigate — reach nearly “every person engaged in almost any trade or business in this state.” Consider also that DATCP need not even first open an investigation; so long as it “may” investigate (meaning merely that it has the power to do so), the statute gives it unlimited, instant access to businesspersons’ papers and premises. This is no limit at all.
The search scheme is unconstitutional on its face. In 2015, the United States Supreme Court put this beyond doubt. In City of Los Angeles v. Patel, a city ordinance required hotel operators to make their hotel registries “‘available to any officer of the Los Angeles Police Department for inspection’ on demand.” The Court held that the ordinance was facially unconstitutional under the Fourth Amendment because it failed to afford “the subject of the search . . . an opportunity to obtain pre-compliance review” from “a neutral decisionmaker” before criminal liability attached. The search scheme here is no different — except that it is even more problematic, since it is not limited to one industry, such as hotels, or a single kind of document, such as registries. Additionally, but for the same reasons, the statute is invalid because it criminalizes the exercise of a search recipient’s constitutional right to refuse warrantless, unreasonable searches. Confronted with these arguments, the circuit court concluded that the statute could be used “in a constitutional way” and therefore Plaintiffs Minority Business Association of Wisconsin and Divine Landscaping LLC’s (hereinafter, collectively, “MBAW”) facial challenge could not succeed. Specifically, the court seemed to adopt DATCP’s argument that, because DATCP allegedly gives targets time to challenge search demands before having either to comply or face imprisonment, the statute does not violate Patel in all applications. But this completely misunderstands the all-applications test. Courts may “not uphold an unconstitutional statute merely because the Government promise[s] to use it responsibly.”
Separately, the statute is unconstitutional at least to the extent that DATCP can invoke it to conduct a suspicionless search for violations of penal laws, including especially Wis. Stat. § 100.20 and DATCP’s regulations thereunder. The circuit court did not even address this fully briefed, independent ground for holding the statute unconstitutional.
Finally, DATCP’s practice of demanding sworn statements under Wis. Stat. § 93.15(1) without prior notice or opportunity for a hearing violates the Wisconsin statutes. Wisconsin Statute § 93.18 plainly requires DATCP, before issuing any “special order relating to named persons,” including demands under Section 93.15(1), to provide that person with notice and a hearing.
Brief of appellant:
Case no: 24AP1176
Case name: Dessa Bearden v Department of Agriculture, Trade, and Consumer Protection
Filed in Court of Appeals District: II
Filing attorneys: Ryan Walsh, Amy Miller, Teresa Manion
Law firm / agency: Eimer Stahl
Circuit Court: Waukesha County
Judge: Michael Aprahamian
Introduction
Appellants Dessa Bearden, Kyle Jensen, Andrew Janny, Cordario Gooch, Jesse Anderson, and Kareem Bearden—mom-and-pop landlords owning a handful of properties in Waukesha- and Milwaukee-area communities—are intelligent, conscientious, diverse, law-abiding Wisconsinites. One manages a property to pay for his elderly mother’s medical care. Two others have invested in real estate to support their children. Several have or had careers in education. One is a former Army veteran. Although none is wealthy or trained in the law, each is determined to comply with the rules and regulations of our state.
But the regulations governing landlords are hopelessly vague, especially sections ... which impose myriad requirements on landlords of all sizes. Of course, sometimes even lawyers have difficulty interpreting laws. And some difficulty is to be expected, and tolerated, in the civil context, where, for example, landlords and tenants are free to dispute in small-claims court whether carpet damage is “normal wear and tear” (for which the landlord is responsible) or “tenant damage, waste or neglect” (for which she is not), or whether a landlord’s unwelcome entry into a unit to look over and replace an old window was truly an “inspect[ion]” and a “repair.” Resolving these disputes might even require extensive discovery, expert reports, complex records, and lengthy trials — all of which our civil courts are capable of handling.
But violations of ATCP 134.06 and 134.09 are not mere civil infractions. They are crimes—punishable by up to a year in jail. And, just as shocking, they are strict-liability offenses, so the mental state of the alleged “wrongdoer” is irrelevant. No amount of good faith, diligence, intellect, or training will save a landlord in the crosshairs of a district attorney or a bureaucrat who insists (in hindsight) that a tenant should not have been held responsible for an especially filthy carpet, that the replacement of a drafty window was not technically a “repair,” or that some other of the rules’ blurred lines had been crossed.
On top of this, landlords also must navigate a criminally enforceable regulation that does not even ban or require conduct ... despite DATCP’s having authority only to “forbid[ ]” or “prescrib[e]” acts. The rule declares that certain landlord-tenant contracts are “void and unenforceable,” but it does not ban parties from entering them. Hence it does not “forbid” or “prescribe” anything and so is not within DATCP’s power to issue. This Court should declare it ultra vires.
That last term means beyond the agency's authority.
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