Minority Business Association of Wisconsin v. Wisconsin Department of Agriculture, Trade, and Consumer Protection

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.
July 29, 2025
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 No. 2024AP1175 Cir. Ct. No. 2023CV1299

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MINORITY BUSINESS ASSOCIATION OF WISCONSIN AND DIVINE
LANDSCAPING LLC,

PLAINTIFFS-APPELLANTS,

V.

WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE, AND
CONSUMER PROTECTION,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL J. APRAHAMIAN, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).
No. 2024AP1175

¶1 PER CURIAM. Minority Business Association of Wisconsin and
Divine Landscaping LLC (collectively, “MBAW”) appeal a circuit court order
granting summary judgment to the Wisconsin Department of Agriculture, Trade,
and Consumer Protection (“DATCP”). MBAW argues that the court erred by
rejecting its constitutional challenges to WIS. STAT. § 93.15 (2023-24),1 which
authorizes DATCP to require Wisconsin businesses to permit access to documents
and respond to written questions as part of a preliminary investigation. The court
rejected MBAW’s arguments on the merits, but we conclude that MBAW has
failed to demonstrate a justiciable controversy. Therefore, we affirm the circuit
court’s order on different grounds.

BACKGROUND

¶2 This appeal centers on the constitutionality of WIS. STAT. § 93.15.
DATCP exercises its authority to collect documents and information by issuing
“civil investigative demands” (“CIDs”). According to DATCP, the agency’s
authority to issue CIDs can be traced back to 1921, when the legislature first
authorized the Department of Agriculture to conduct preliminary investigations.
See 1921 Wis. Laws, ch. 571, §§ 1495-20, 1495-21.

¶3 DATCP’s authority to issue CIDs is now set forth in WIS. STAT.
ch. 93, which provides that “[t]he department may, at any time, conduct such
preliminary investigation as is necessary and proper to determine whether a
hearing or proceeding ought to be begun under the provisions of this chapter.”
WIS. STAT. § 93.16(1). To conduct these preliminary investigations, the statute

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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permits DATCP to use “[t]he authority contained in [WIS. STAT.§§] 93.14 and
93.15.” Sec. 93.16(2).

¶4 MBAW’s constitutional challenges focus on the investigative
authority set forth in WIS. STAT. § 93.15. Subsection (1) of this statute provides
that DATCP

may, by general or special order, require persons engaged
in business to file with the department, at such time and in
such manner as the department may direct, sworn or
unsworn reports or sworn or unsworn answers in writing to
specific questions, as to any matter which the department
may investigate.

Sec. 93.15(1). Subsection (2) provides that DATCP and its agents “may have
access to and may copy any document, or any part thereof, which is in the
possession or under the control of any person engaged in business, if such
document, or such part thereof, is relevant to any matter which the department
may investigate.” Sec. 93.15(2). Subsection (3) provides that

[n]o person shall refuse or fail to render any report or
answer required under this section at such time and in such
manner as the department may prescribe. No person shall
refuse, neglect or fail to submit, for the purpose of
inspection or copying, any document demanded under this
section. No person shall willfully make any false entry or
statement in any report or answer required or document
demanded under this section. No person shall willfully fail
to make full and true entries and statements in any report or
answer required or document demanded under this section.
No person shall, for the purpose of embarrassing the
department in the conduct of any investigation, hearing or
proceeding, remove out of the state or mutilate or alter any
document. No person shall, except through judicial
process, resist or obstruct any official or subordinate of the
department in the exercise of the official’s or subordinate’s
lawful authority.

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Sec. 93.15(3). Finally, WIS. STAT. ch. 93 imposes criminal penalties on “[a]ny
person who willfully violates … [§] 93.15(3).” See WIS. STAT. § 93.21(4).

¶5 On August 14, 2023, MBAW filed a three-count complaint for a
declaratory judgment and injunctive relief, alleging that this statutory scheme
“clearly and facially violates the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Wisconsin Constitution (collectively,
the ‘Fourth Amendment’).” Specifically, MBAW alleged that these provisions of
WIS. STAT. ch. 93 “impose[] criminal punishment on those who refuse a
warrantless search, with no opportunity for precompliance review.” Count 1 of
MBAW’s complaint sought “a declaration that this search regime … is
unconstitutional and invalid,” as well as an injunction “prohibiting DATCP from
conducting searches under or otherwise enforcing this search regime.”

¶6 Count 2 of MBAW’s complaint focused on DATCP’s use of WIS.
STAT. § 93.15(2) to investigate unfair trade practices under WIS. STAT. § 100.20.
MBAW alleged that “searches for violations of [§] 100.20 or any of the
regulations enacted thereunder must meet the warrant and probable cause
requirements.” Accordingly, MBAW sought “a declaration that it is
unconstitutional for DATCP to use [§] 93.15(2) to investigate violations of
[§] 100.20 or the regulations enacted thereunder” and “an injunction …
prohibiting DATCP from conducting searches for violations of [§] 100.20
using … [] § 93.15(2).”

¶7 Count 3 of MBAW’s complaint challenged “DATCP’s practice of
issuing special orders under [WIS. STAT. §] 93.15(1) with no notice or opportunity
for [a] hearing.” MBAW asked the circuit court for declaratory and injunctive

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relief that would require DATCP to comply with the notice and hearing provisions
set forth in WIS. STAT. § 93.18.2

¶8 On the same day it filed the complaint, MBAW also filed a motion
for a temporary injunction. The motion was accompanied by affidavits from Erick
Rosas, the co-owner of Divine Landscaping, and Jason Pehowski, president of
MBAW and owner of Always Towing & Recovery, Inc. Counsel for MBAW also
submitted an affidavit that included several examples of CIDs issued by DATCP,
as well as two examples of criminal complaints arising from business operators’
inadequate responses to CIDs.

¶9 In its brief in support of a temporary injunction, MBAW relied on
Los Angeles v. Patel, 576 U.S. 409 (2015), to argue that its constitutional
challenges were “very likely to succeed on the merits.” In Patel, the United States
Supreme Court struck down a municipal ordinance requiring hotel operators to
keep guest records and make them available to police officers on demand. Id. at
412. The Court determined that this ordinance was facially unconstitutional under
the Fourth Amendment “because it penalizes [hotel operators] for declining to turn
over their records without … any opportunity for precompliance review.” Id.
MBAW argued that Wisconsin’s statutory “scheme … is no different, except it is

2
WISCONSIN STAT. § 93.18(2) provides

in any matter relating to issuing, revoking or amending a special
order relating to named persons, [the department] shall serve
upon the person complained against a complaint in the name of
the department and a notice of a public hearing thereon to be
held not sooner than 10 days after such service.

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even more problematic (since it is not limited to a single industry, such as hotels,
or a single document, such as registries).”

¶10 In its opposition to MBAW’s motion for a temporary injunction,
DATCP first argued that MBAW was unlikely to succeed on the merits because
the “[p]laintiffs offer[ed] no reason to suspect they will ever—let alone soon—
receive a CID.” Thus, DATCP contended that there was no justiciable
controversy for the circuit court to adjudicate.

¶11 In the event that the circuit court reached the merits of MBAW’s
constitutional challenge, DATCP argued that its typical use of CIDs was
distinguishable from the on-the-spot searches in Patel. Specifically, it is
undisputed that “DATCP typically provides recipients ‘14 days to 31 days’ to
respond to CIDs.” As such, DATCP argued that its CIDs are the equivalent of
administrative subpoenas, which Patel recognized as “one way in which an
opportunity for precompliance review can be made available.” Id. at 423.
Because DATCP’s typical approach to CIDs gave recipients the opportunity for
precompliance review, DATCP argued that “[t]hese valid applications of the
statute bar a facial challenge, unlike the ordinance in Patel that did not itself
authorize any constitutional searches.”

¶12 At a hearing on November 27, 2023, the circuit court denied
MBAW’s motion for a temporary injunction on the merits. The court agreed with
DATCP that “there certainly are applications [of WIS. STAT. § 93.15(2)] that
would survive constitutional muster.” Although the court expressed concern that
DATCP had not implemented more reliable safeguards in its use of CIDs, the

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court concluded that MBAW’s facial challenge failed.3 The court did not address
DATCP’s argument that the controversy was not justiciable.

¶13 On November 29, 2023, the circuit court entered its order denying
MBAW’s motion for a temporary injunction. The parties then stipulated that “the
[c]ourt’s order … can and should be converted into an order granting [DATCP]
summary judgment on [MBAW’s] claims” and that the evidence presented during
the briefing on the temporary injunction motion would constitute the record for
appeal. The court entered its order granting DATCP summary judgment on April
30, 2024. MBAW now appeals.

DISCUSSION

¶14 In its opening brief, MBAW reiterates its argument that the
inspection statute is facially unconstitutional under Patel. MBAW contends that
the circuit court erred by “analyz[ing] the constitutionality of the inspection statute
not on its face but in view of how DATCP actually uses the statute.” MBAW also
renews its arguments regarding the use of WIS. STAT. § 93.15(2) to investigate
unfair trade practices and whether the notice and hearing procedures in WIS. STAT.
§ 93.18 apply to special orders under § 93.15(2).

3
MBAW also sought a temporary injunction requiring DATCP to conduct a hearing
under WIS. STAT. § 93.18 before using WIS. STAT. § 93.15 to conduct a preliminary investigation.
DATCP argued that the legislature did not intend this result and that MBAW’s construction of
these statutes was “nonsensical” and “topsy-turvy.” The circuit court determined that DATCP
“ha[d] the better argument … that there is no need to have any sort of hearing prior to doing the
preliminary investigation.”

In addition, MBAW sought a temporary injunction on the issue of whether DATCP could
use the tools in WIS. STAT. § 93.15 to investigate possible violations of WIS. STAT. § 100.20 and
accompanying regulations. The circuit court did not directly address this specific argument.

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¶15 In its response brief, DATCP renews its threshold argument that this
case is not justiciable. Specifically, DATCP argues that MBAW lacks standing
because it has not established that it or its member businesses face any real risk of
being targeted by the investigative procedures that they are challenging.

¶16 “A court must be presented with a justiciable controversy before it
may exercise its jurisdiction over a claim for declaratory judgment.” Olson v.
Town of Cottage Grove, 2008 WI 51, ¶28, 309 Wis. 2d 365, 749 N.W.2d 211. In
order for a declaratory judgment action to be justiciable, “the complainant ‘must
have a legal interest in the controversy—that is to say, a legally protectable
interest.”’ Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n, 2011 WI 36, ¶47,
333 Wis. 2d 402, 797 N.W.2d 789 (citation omitted).

¶17 Here, DATCP argues that MBAW has not identified sufficient facts
to demonstrate that it has the necessary legal interest/legally protectable interest.
DATCP contends that there are only three sets of record facts that MBAW can
rely on in order to make this showing: (1) Divine Landscaping has been “searched
by the [s]tate before”; 2) DATCP issued 686 CIDs under WIS. STAT. § 93.15(2)
between January 1, 2020, and September 1, 2023; and (3) one of MBAW’s
members “received communications from DATCP regarding consumer
complaints.” DATCP contends that these facts are not sufficient to demonstrate
that MBAW has standing to challenge the constitutionality of § 93.15. We agree.

¶18 Regarding the first set of record facts—involving the prior search of
Divine Landscaping—Rosas’ affidavit averred that “someone from the Wisconsin
state government knocked on the front door … of my personal residence” and
“claimed they were auditing Divine Landscaping … to ensure we were making
proper payments for the state’s unemployment insurance program.” DATCP

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points out that Rosas’ affidavit contains no indication that these government
officials were from DATCP or that they were exercising authority under WIS.
STAT. § 93.15. Instead, the reference to unemployment compensation indicates
that the government agents were from the Department of Workforce Development,
exercising authority under WIS. STAT. § 108.14(1).

¶19 Regarding the second set of record facts—involving the number of
CIDs issued between 2020 and 2023—DATCP argues that the total “is a relatively
miniscule amount” in view of data showing “that Wisconsin houses over 144,000
businesses.” These numbers mean that, in any given year, “99.9% of Wisconsin
businesses do not receive a CID.” Given the remote likelihood that any particular
business will receive a CID, DATCP contends that MBAW’s “supposed fear of
receiving a CID [is] a feigned one.”

¶20 Regarding the third set of record facts, Pehowski’s affidavit states
that his business “has received communications from DATCP regarding its
business practices and consumer complaints, often requiring [the business] to
respond.” DATCP points out that Pehowski did not provide any details about
when these communications occurred or whether these communications had
anything to do with CIDs. Accordingly, DATCP argues that this affidavit does
not help MBAW establish that it has standing to challenge the statute authorizing
DATCP to issue CIDs.

¶21 Because none of these facts establish that MBAW faces a real risk of
receiving a CID, DATCP argues that MBAW “face[s] only the kind of
‘hypothetical, abstract, or remote’ risk that cannot create a justiciable
controversy.” See Putnam v. Time Warner Cable, Ltd. P’ship, 2002 WI 108, ¶47,

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255 Wis. 2d 447, 649 N.W.2d 626 (explaining that a claim is justiciable when “[i]t
is real, precise, and immediate” and not “hypothetical, abstract, or remote”).

¶22 In its reply brief, MBAW does not point to any additional record
facts that would support its contention that this case is justiciable. Instead,
MBAW argues that “[a] legally protectable interest is simply an interest ‘protected
by a statute or constitutional provision at issue.’” See Foley-Ciccantelli, 333
Wis. 2d 402, ¶43. Here, MBAW argues that it has a constitutionally protected
“interest in remaining free of unreasonable, warrantless searches.”

¶23 The problem with this line of argument is that every person and
business in Wisconsin can claim this same right to remain free of unreasonable,
warrantless searches. Courts typically “reject[] claims of standing predicated on
‘the right, possessed by every citizen, to require that the [g]overnment be
administered according to law.’” Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 482-83 (1982)
(citation omitted). Instead, to create a justiciable controversy, MBAW needs to
establish a “real, precise, and immediate” risk of facing DATCP’s use of the
investigative tools in WIS. STAT. § 93.15. See Putnam, 255 Wis. 2d 447, ¶47.
The nebulous facts set forth in MBAW’s affidavits do not satisfy this standard.

¶24 MBAW further contends that DATCP’s justiciability argument uses
the wrong legal terminology and that DATCP is actually challenging ripeness

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rather than standing.4 MBAW argues that facial challenges to statutes “are
generally ripe the moment the challenged [statute] is passed,” Olson, 309 Wis. 2d
365, ¶44 n.9, which means that its facial challenge is therefore justiciable.

¶25 We disagree that Olson stands for such a broad proposition. Olson
involved a property owner’s challenge to a newly enacted town ordinance that
directly affected his ability to subdivide and develop his property, which he argued
amounted to an unconstitutional taking. Id., ¶¶6-18. In rejecting the Town’s
argument that Olson’s constitutional challenge was not ripe, our supreme court
explained in a footnote:

The Town conditioned Olson’s final plat approval upon
compliance with the ordinance, and Olson was left with no
administrative option to challenge this decision. As a facial
challenge, Olson’s suit is ripe because it challenges the
very enactment of the ordinance and its application to all
Town landowners. Such challenges to ordinances are
generally ripe the moment the challenged ordinance is
passed. See Suitum v. Tahoe Reg’l Plan. Agency, [520
U.S. 725, 736 n.10 (1997)]

Olson, 309 Wis. 2d 365, ¶44 n.9 (emphasis added). Our supreme court’s
statement in Olson is specific to the type of land use controversy raised by the
plaintiff in that particular case, and the cited footnote from Suitum is similarly

4
We can set aside the parties’ disagreement over how best to frame their respective
arguments because the differing terminology still leads us to the same essential question of
whether the case is justiciable. Specifically, our supreme court has explained that “the concepts
of standing and justiciability (a legally protectable interest) have been viewed as overlapping
concepts in declaratory judgment cases.” Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n,
2011 WI 36, ¶47, 333 Wis. 2d 402, 797 N.W.2d 789. In turn, one of the factors in determining
justiciability is whether “[t]he issue involved in the controversy [is] ripe for judicial
determination.” Putnam v. Time Warner Cable, Ltd. P’ship, 2002 WI 108, ¶41, 255 Wis. 2d
447, 649 N.W.2d 626.

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limited to challenges to zoning ordinances. See Suitum, 520 U.S. at 735-36. We
decline to read either footnote beyond its narrow context.

¶26 Instead, we look to the general rule from Olson that the purpose of a
declaratory judgment action “is to allow courts to anticipate and resolve
identifiable, certain disputes between adverse parties.” Olson, 309 Wis. 2d 365,
¶28 (emphasis added; citations omitted). Here, in the absence of any evidence that
MBAW faces a real risk of receiving a CID, much less an immediately enforced
CID, MBAW has not established that there is an identifiable, certain dispute
between the parties.

¶27 MBAW further argues that a plaintiff seeking a declaratory
judgment “need not actually suffer an injury before seeking relief,” see Putnam,
255 Wis. 2d 447, ¶44, “or show that an injury is ‘imminent,’” see Milwaukee Dist.
Council 48 v. Milwaukee County, 2001 WI 65, ¶46, 244 Wis. 2d 333, 627
N.W.2d 866. Instead, according to MBAW, “so long as the facts are ‘sufficiently
developed to allow a conclusive adjudication, declaratory relief may be rewarded
‘when the harm is only anticipatory.’” See Putnam, 255 Wis. 2d 447, ¶45.

¶28 Putnam involved customers’ claims for declaratory judgment and
injunctive relief against a cable company that allegedly imposed late fees in excess
of its costs. Id., ¶4. The defendant argued that the controversy was not ripe for
adjudication because the three customers named as plaintiffs might never have to
pay the late fees. Id., ¶45. Our supreme court disagreed with this ripeness
argument, explaining that the key question for justiciability was “[t]he imminence
and practical certainty of the act or event in issue, or the intent, capacity, and
power to perform” that act or event. Id., ¶46. Because the plaintiffs presented
evidence that 10 to 15 percent of the defendant’s customers paid late fees each

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month, and because the defendant “offered no evidence that this trend [would] not
continue,” the court concluded that the imposition of late fees was “a practical
certainty.” Id. Accordingly, our supreme court rejected the defendant’s argument
that the controversy was not justiciable. Id., ¶45. MBAW argues that DATCP’s
argument similarly fails because it relies on the “same lack of certainty” faced by
the successful plaintiffs in Putnam.

¶29 We can distinguish Putnam for two reasons. First, the plaintiffs in
Putnam were challenging a late fee that was actually being imposed on a
significant percentage of the defendant’s customers each month. Id., ¶46. In
contrast, it is undisputed that only around 0.1% of businesses in Wisconsin are
likely to receive a CID in any given year. Given the remote likelihood that any
business will be subject to the investigative tools in WIS. STAT. § 93.15, MBAW—
which represents only a fraction of Wisconsin businesses—cannot establish that its
challenge to the use of these statutory tools is “real, precise, and immediate.” See
Putnam, 255 Wis. 2d 447, ¶47.

¶30 Second, in contrast to Putnam, where the defendant was routinely
performing the challenged act of imposing a late fee, there are no record facts
indicating that DATCP has any intent to perform the hypothetical act that MBAW
challenges—namely, to demand immediate compliance with a CID under threat of
criminal penalty. Instead, MBAW’s own evidence shows that DATCP typically
gives businesses a minimum of two weeks to respond to a CID. This practice
gives businesses an opportunity for precompliance review, which is sufficient
under Patel. See Patel, 576 U.S. at 421 (“[W]e hold only that a hotel owner be
afforded an opportunity to have a neutral decisionmaker review an officer’s
demand to search the registry before he or she faces penalties for failing to
comply.”).

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¶31 Given this record, MBAW cannot establish either prong of
Putnam’s test for justiciability. See Putnam, 255 Wis. 2d 447, ¶46 (observing
that justiciability depends on “[t]he imminence and practical certainty of the act or
event in issue, or the intent, capacity, and power to perform” that act or event).
Specifically, MBAW has not demonstrated the “imminence and practical
certainty” that it will face a CID, nor has MBAW established that DATCP has the
intent to issue a CID that does not afford the opportunity for precompliance
review.

¶32 Finally, MBAW argues that this case “is far from ‘a hypothetical
matter; it is a real contest over legal authority being claimed and exercised right
now.”’ See Fabick v. Evers, 2021 WI 28, ¶10, 396 Wis. 2d 231, 956 N.W.2d 856
(citation omitted). We disagree with this characterization because the record
contains no facts whatsoever to indicate that DATCP is claiming and exercising
legal authority to issue immediately enforced CIDs. On the contrary, the record
created by MBAW establishes that DATCP’s standard practice is to issue CIDs
that provide “at least 2 weeks” for response. Likewise, the two criminal
complaints introduced into the record by MBAW involve defendants who were
both afforded ample time to comply with a CID before facing criminal penalties
for noncompliance.5

5
One of the criminal complaints that MBAW included in the record involves a
defendant who initially had more than two weeks after receiving the CID to comply, with
DATCP subsequently extending the deadline twice, for a total of ten months. The complaint was
not filed until around 15 months after the issuance of the CID. The other complaint involves a
defendant who had more than three weeks to comply with the CID. After the defendant also
failed to comply with two subpoenas, the DATCP pursued criminal charges more than three years
after the initial deadline to comply with the CID.

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¶33 Thus, MBAW has failed to demonstrate that this case involves “a
real contest over legal authority being claimed and exercised right now.” See id.
Instead, the record demonstrates that DATCP is exercising its statutory authority
by issuing CIDs that give recipients the opportunity for precompliance review. In
its brief to this court, DATCP has identified several different avenues for a
recipient of a CID to obtain this precompliance review.

¶34 MBAW argues that this “dizzying array of seemingly alternative
paths to precompliance review” is not sufficient and that a business facing a CID
would be unlikely to obtain judicial review “before … fac[ing] penalties for failing
to comply,” just like the hotel operators in Patel. We disagree that the factual
record in this case is at all comparable to Patel, where the challenged ordinance
targeted a specific industry and provided that “[a] hotel owner who refuses to give
an officer access to his or her registry can be arrested on the spot.” Patel, 576
U.S. at 421.

¶35 Furthermore, MBAW’s arguments about the adequacy of the
opportunities for precompliance review highlight why this case is not justiciable.
MBAW argues that it could “think up a dozen or more commonplace scenarios” in
which a business owner targeted with a CID might miss out on the opportunity for
precompliance review. The problem for MBAW, however, is that a declaratory
judgment action requires “that the facts be sufficiently developed to allow a
conclusive adjudication.” See Putnam, 255 Wis. 2d 447, ¶44. In the absence of a
developed factual record, MBAW is merely asking us to opine as to whether it
would be constitutional for DATCP to use the statute in a hypothetical manner.
This court cannot render advisory opinions about hypothetical scenarios. We
therefore conclude that this case is not justiciable.

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CONCLUSION

¶36 Because MBAW has not established the justiciability of its claims
for declaratory and injunctive relief, we affirm the circuit court’s order granting
summary judgment to DATCP.

By the Court.—Order affirmed.

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

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