Timothy Hix v. Wisconsin Dept. of Justice

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 28, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2023AP664 Cir. Ct. No. 2022CV77

2023AP1446

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

TIMOTHY HIX,

PETITIONER-APPELLANT,

V.

WISCONSIN DEPT. OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL,

RESPONDENT-RESPONDENT.

APPEALS from orders of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2023AP664
2023AP1446

¶1 PER CURIAM. Timothy Hix appeals from an order dismissing his
petition for review of the Wisconsin Department of Justice’s (“Department”)
denial of his application for a concealed carry license and from an order denying
his motion to reopen and for default judgment. Hix contends that the circuit court
erred because the Department’s denial was unlawful. Because the Department
reversed course and issued Hix a license before it filed its answer to Hix’s petition,
thereby affording him the relief to which he was entitled, we affirm the order of
dismissal and the order denying his motion to reopen.

¶2 Hix applied to the Department for a concealed carry license under
WIS. STAT. § 175.60 (2021-22).1 On May 9, 2022, the Department denied his
application, giving as its reason “Federal Disqualifier for Domestic Violence.”
The Department’s decision was based on our opinion in Evans v. DOJ, 2014 WI
App 31, ¶4, 12, 353 Wis. 2d 289, 844 N.W.2d 403, in which we held that a
conviction for disorderly conduct could constitute “a misdemeanor crime of
domestic violence” under a federal statute that prohibits persons convicted of such
offenses from possessing firearms. Eleven days after the Department’s denial, on
May 20, 2022, the Wisconsin Supreme Court overruled Evans and held that
“disorderly conduct is not a misdemeanor crime of domestic violence under
federal law, and therefore, does not disqualify a person from holding a [concealed
carry] license.” Doubek v. Kaul, 2022 WI 31, ¶1, 401 Wis. 2d 575, 973 N.W.2d
756.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶3 On June 15, 2022, Hix filed his petition seeking review of the denial.
In addition to seeking reversal of the Department’s decision, Hix sought actual
damages, court costs, reasonable attorney fees, injunctive relief, and punitive
damages. On June 29, 2022, the Department filed its answer in which it explained
that Hix’s application had been denied under Evans but that after Doubek, the
Department had reversed course and granted him a concealed carry license.
Because Hix had been granted his license, the Department informed the circuit
court that it “[would] not be filing the record” with the court as normally required
under WIS. STAT. § 175.60(14m)(d).

¶4 Neither party made any additional filings in the case for the next six
months. Finally, on January 16, 2023, the circuit court dismissed the case for lack
of prosecution. Hix filed a motion to reopen the case and for default judgment
because the Department hadn’t contested any of the allegations in his petition and
had not provided the record related to its initial denial as required under the
statute. The Department filed a response opposing Hix’s requests, arguing among
other things that the case was moot after the Department granted Hix a license.
On May 8, 2023, the court issued an order denying Hix’s motions “for the reasons
stated in [the Department]’s response brief.” Hix filed separate appeals of the
court’s order dismissing the case and the order denying his motions to reopen and
for default judgment. This court consolidated the two appeals.

¶5 On appeal, Hix argues that the circuit court’s dismissal of his case
violated the mandatory review procedure set forth in WIS. STAT. § 175.60. He
also contends that the court committed “clear errors of law” in denying his motion
to reopen and his motion for default judgment. The Department disagrees with
Hix’s substantive arguments and also argues that Hix’s appeal is moot because the
Department reversed its initial denial and granted Hix his concealed carry license.

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We agree with the Department that Hix’s appeal is moot and therefore need not
address the parties’ other arguments.

¶6 Mootness is a question of law that is reviewed de novo. Portage
County v. J.W.K., 2019 WI 54, ¶10, 386 Wis. 2d 672, 927 N.W.2d 509. “An issue
is moot when its resolution will have no practical effect on the underlying
controversy.” PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766
N.W.2d 559. As relevant here, “a case is moot when a party has obtained the
relief to which he or she is entitled.” Riley v. Lawson, 210 Wis. 2d 478, 490, 565
N.W.2d 266 (Ct. App. 1997).

¶7 Hix’s judicial review petition sought reversal of the Department’s
decision and issuance of the license. Weeks after he filed the petition, the
Department reversed its initial decision and issued him the license he sought.
Given the Department’s turnabout, a reversal of the prior agency decision by the
court would not have any practical effect because Hix had already obtained the
relief he sought. See J.W.K., 386 Wis. 2d 672. Thus, the case is moot.

¶8 Hix advances several reasons why we should reject the Department’s
mootness argument, but none are persuasive. First, he argues that the Department
forfeited its right to argue mootness by not raising it in its answer. See State Farm
Mut. Auto Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358 Wis. 2d 379, 856
N.W.2d 633 (explaining that “[a]rguments raised for the first time on appeal are
generally deemed forfeited” (citation omitted)). We do not agree. Although the
Department did not use the word moot in its answer, it raised the grounds for that
argument in the answer by explaining its reversal of the denial following Doubek
and issuance of a license to Hix as the reason why the circuit court did not need

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“to order the Department to reverse its decision and grant a license to Hix.” This
was sufficient to preserve the Department’s ability to argue mootness on appeal.

¶9 Hix also argues that the Department has not shown “whether, who,
when, where, or how it granted Hix a license.” To the extent Hix is suggesting
that this case is not moot because he has not actually received his license, that
suggestion lacks support in the record. The Department informed the circuit court
in its answer that it had granted Hix the license. Hix does not explicitly and
specifically dispute the fact that he has, in fact, received the license. Hix did not
dispute the Department’s assertion in the six months between the filing of the
answer and the dismissal of his case. Hix also did not dispute the assertion in his
motion to reopen; he asserted only that the Department had not provided his
attorney with a copy of the license. And finally, Hix’s appellate briefs never
dispute the Department’s assertion that he has received the license.

¶10 Next, Hix argues that his case is not moot because he is entitled to
other forms of relief including expenses, attorney fees, and punitive damages
resulting from the Department’s violation of WIS. STAT. § 175.60. Again, we
disagree. Hix would be eligible for an award of court costs and reasonable
attorney fees only if the circuit court had reversed the Department’s denial. See
§ 175.60(14m)(g)2. That did not occur here because the Department granted Hix
a concealed carry license before it filed its answer. Furthermore, even if Hix
prevailed in the circuit court, Hix has not pointed to any legal authority that would
entitle him to an award of punitive damages.

¶11 Finally, Hix argues that his case falls within recognized exceptions
to mootness. He cites State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278
Wis. 2d 24, 692 N.W.2d 219, in which our supreme court stated that an appellate

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court “may decide an otherwise moot issue if it is of great public importance or
arises frequently enough to warrant a definitive decision to guide the circuit
courts.” We agree with the State that these exceptions do not apply here.
Although the constitutional right to bear arms is important, Doubek has resolved
the question of whether persons with domestic violence convictions like Hix may
be denied concealed carry licenses. Accordingly, it is unlikely that the issue raised
by Hix’s petition will frequently recur.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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