# Butzlaff v. State Department of Health & Family Services

> Court of Appeals of Wisconsin · December 17, 1998 · 223 Wis. 2d 673

URL: https://www.frixlaw.com/law-library/cases/9741580

## Case

- **Full name:** Steven G. Butzlaff, Plaintiff-Respondent, v. State of Wisconsin Department of Health and Family Services, F/K/A Department of Health and Social Services, Defendant-Appellant
- **Court:** Court of Appeals of Wisconsin
- **Decided:** December 17, 1998
- **Citations:** 223 Wis. 2d 673; 590 N.W.2d 9; 1998 Wisc. App. LEXIS 1487
- **Precedential status:** Published
- **Opinion:** Dissent by Dykman
- **Judges:** Dykman, Vergeront, Deininger
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

DYKMAN, P.J.
(dissenting). Most appellate judges have come to view the recent phenomena of repetitive litigation as an abomination. But that view is not necessarily shared by others, and need not be the view shared by the legislature. A different view could be that employers have the ability and resources to discriminate against their employees, and to balance an unequal contest, victims of discrimination should be given a second chance to prove their cases before a different branch of government.
I start where the majority starts — the language of the statute. Section 103.10(13), Stats., reads:
CIVIL ACTION, (a) An employe or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation.
Our first inquiry is to determine whether this language is clear and unambiguous. If a statute is clear on its face, our inquiry ends, because we are prohibited from looking beyond the unambiguous language used by the legislature. State v. Shea, 221 Wis. 2d 418, 425 , 585 N.W.2d 662, 665 (Ct. App. 1998). Only if language of a statute is ambiguous may we look beyond the statute's language. Id. Statutory language is ambiguous if reasonably well-informed persons could differ as to its meaning. Id.
*692 In my view, § 103.10(13), Stats., is unambiguous. I see nothing in the language of the statute that requires a litigant to be successful in an administrative proceeding before he or she may bring a civil action. The statute specifically abrogates common law estbppel and preclusion doctrines by providing that the civil action may be brought "concerning the same violation." How then can the language of the statute be ambiguous?
Contrary to established precedent, the majority proceeds with its statutory analysis without first concluding that the statutory language is ambiguous. See Shea, 221 Wis. 2d at 425 , 585 N.W.2d at 665 . Instead, the majority looks beyond the statute and recognizes that a civil action does not provide all the relief a victim of discrimination might want. While this is true, the majority assumes that no reasonable legislature would give a remedy for discrimination if it does not provide all the forms of relief that a plaintiff would want. We have often said that the legislature may attack part of a problem without solving the whole thing. See Forest Home Dodge, Inc. v. Karnes, 29 Wis. 2d 78, 92 , 138 N.W.2d 214, 221 (1965). A logical explanation for the policy of giving a second chance to disappointed administrative plaintiffs would be that discrimination is such a noxious practice that even if one fails in the administrative arena, a victim of discrimination should be able to recover some of his or her losses, even if total recovery is infeasible.
The majority's conclusion is that the only reasonable purpose for a civil action is to obtain relief not available in a prior administrative proceeding. I challenge that conclusion. Why does the majority conclude that a reasonable legislature would give nothing but the maximum relief possible? It is ironic that this logic *693 prevents the unsuccessful administrative litigant from even having a chance at relief.
Just as important, the majority's method of finding ambiguity in § 103.10(13), Stats., has nothing to do with the language of the statute. Instead, the majority concludes that the result of following the plain meaning of the statute would only be partially beneficial to an unsuccessful administrative litigant. I do not believe that this is a valid method of determining ambiguity, and even if it is, it interjects the majority's policy determination that no one would want or give anything but the maximum relief possible. Though I do not agree with the policy set out in § 103.10(13), which provides for repetitive litigation, that is no reason to overturn a legislative policy favoring it. I therefore respectfully dissent from the majority opinion that concludes otherwise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9741580. Public record. Not legal advice.