v. Daniel P. McGinnis

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.
January 13, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP2235 Cir. Ct. No. 2019CV279
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
PETITIONER,
PETITIONER-RESPONDENT,
V.
DANIEL P. MCGINNIS,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Ozaukee County:
PAUL V. MALLOY, Judge. Affirmed.
Before Neubauer, C.J., Gundrum and Davis, 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. 2019AP2235
¶1 PER CURIAM. Daniel P. McGinnis appeals from the circuit
court’s harassment restraining order that prevents him from filing any lawsuit
against the Petitioner without first seeking permission to do so from the presiding
court.1 Because reasonable grounds exist to support the circuit court’s order, the
court did not erroneously exercise its discretion when it issued the injunction. We
affirm.
¶2 The following facts are a summary of the evidence presented at the
injunction hearing underlying this appeal.
¶3 McGinnis sued the Petitioner for the first time in Broward County,
Florida, seeking $2000 in forfeited bond that he had posted on her behalf.2 Both
parties lived in Ozaukee County, Wisconsin, when the suit was filed. When asked
why he sued the Petitioner in Florida, McGinnis answered that he “couldn’t
possibly see how a Wisconsin court was going to interpret a bail bondsman
contract” if Wisconsin does not use bail bondsmen.
¶4 The following year McGinnis sued the Petitioner six more times in
the span of four months. Both parties still lived in Ozaukee County. The second
lawsuit sought $5000 in Ozaukee County for “false arrest,” the third case sought
$5000 in Waukesha County for false accusations the Petitioner had made against
We decline to print the Petitioner’s name because this case arises from a petition for a
1
harassment injunction. See WIS. STAT. § 813.125 (2017-18). We note, however, that she is
McGinnis’s former girlfriend and the mother of his child.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
The case settled for $2100, and the Petitioner has “consistently” made settlement
2
payments to McGinnis.
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No. 2019AP2235
him, and the fourth lawsuit sought $712 in Jefferson County for a plane ticket
from Milwaukee to Florida. The court ordered McGinnis to transfer the plane-
ticket case from Jefferson to Ozaukee County—the county both parties share.
McGinnis ignored this order. Instead, he refiled the entire plane-ticket case in
Dade County, Florida, while leaving the Wisconsin case open.3 As refiled in
Florida, the fifth lawsuit alleged the identical facts and sought the same $712
damages from the Petitioner as its Wisconsin counterpart but was nonetheless a
separate case. McGinnis then proceeded to sue the Petitioner a sixth time in
Hennepin County, Minnesota, for $3640 of credit card charges that the Petitioner
had “agreed to repay” years earlier, and he sued her for the seventh time in
Muskegon, Michigan, seeking repayment of $500 in travel expenses. The
Petitioner had never been to Michigan.
¶5 The Petitioner applied for a restraining order. She alleged that
McGinnis was “engaging in a non-legitimate course of conduct” by “repeatedly
committing acts which harass and threaten the petitioner.”4 In a subsequent
hearing, McGinnis appeared as the sole witness to testify to the basis for each
3
McGinnis testified that he was not present when the Jefferson County circuit court
ordered the case transferred to Ozaukee County. Instead, according to McGinnis, his attorney
incorrectly told him that the Jefferson County case was closed. McGinnis testified, “Had I been
there in court and known, the case never would have been refiled in Florida.” The circuit court
took judicial notice of the Jefferson County court’s order to transfer the case without objection.
We therefore impute McGinnis with the knowledge that his Wisconsin case remained open. See
WIS. STAT. § 902.01(2)(b).
4
We note that there was an attachment to the petition signed by the Petitioner’s attorney
alleging, among other things, that McGinnis “filed civil suits with the same or similar intents,
results and victims as [his] suits against [the Petitioner], against seven other” women and that he
paid the filing fee for a Waukesha County suit against the Petitioner “with a check drawn on a
closed account.” Unfortunately, the details supporting these and several other allegations were
not provided at the injunction hearing and the circuit court made no findings regarding these
allegations; therefore, we do not consider them on appeal.
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No. 2019AP2235
lawsuit.5 McGinnis never explained why he filed the seven lawsuits across
Florida, Minnesota, or Michigan when both parties lived in Ozaukee County,
Wisconsin, apart from his single statement about bail bondsmen.
¶6 McGinnis testified at the injunction hearing that there were no other
lawsuits pending against the Petitioner. This was false.6 The day after the court
ordered the injunction, the Petitioner was served with two more summons and
complaints for an eighth lawsuit McGinnis filed in Muskegon, Michigan, and a
ninth lawsuit in Ludington, Michigan. Like the Dade County case, these two new
Michigan cases were repeats; they alleged identical facts and sought similar
damages as the previous lawsuit that McGinnis had filed in Michigan even though
they were two separate, additional cases.
¶7 The circuit court granted the Petitioner’s restraining order. The
court ordered that McGinnis “may not file any lawsuit against [the Petitioner] until
he has received approval for the filing from the judge assigned to preside over the
litigation.” As the court made clear, “[t]hat way you can file lawsuits, but you
have to get approval first.” McGinnis appeals.
5
As to the merits of these nine lawsuits, McGinnis’s testimony indicated that “at no
time, did a court find his lawsuits as being frivolous or lacking legal merit.” The Petitioner did
not respond to this claim in her brief. Thus, we assume, without deciding, that these lawsuits are
not frivolous on the merits. See State ex rel. Zignego v. Wisconsin Elections Comm’n, 2020 WI
App 17, ¶27, 391 Wis. 2d 441, 941 N.W.2d 284. However, we note that filing multiple lawsuits
on the same facts and seeking the same damages is frivolous. So, too, is presenting a claim for an
improper purpose, such as to harass the opposing party. See WIS. STAT. § 802.05(2)(a), (4)(b)1.
(codifying that a filing is frivolous if it violates the party’s representation to the court that “[t]he
paper is not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation”).
6
There was no confusion about this point. The circuit court went over McGinnis’s
various court filings against the Petitioner several times, and McGinnis testified, unequivocally,
that he had discussed with the court every case he had filed against the Petitioner and that there
were no additional cases pending.
4
No. 2019AP2235
¶8 Although the decision to grant an injunction is within the circuit
court’s discretion, in order to do so the court must find “reasonable grounds to
believe that the respondent has engaged in harassment with intent to harass or
intimidate the petitioner.” Board of Regents-UW Sys. v. Decker, 2014 WI 68,
¶35, 355 Wis. 2d 800, 850 N.W.2d 112 (quoting WIS. STAT. § 813.125(4)(a)3.).
“We independently review the circuit court’s conclusion, based on the established
facts, whether such reasonable grounds exist.” Welytok v. Ziolkowski, 2008 WI
App 67, ¶23, 312 Wis. 2d 435, 752 N.W.2d 359 (citing M.Q. v. Z.Q., 152 Wis. 2d
701, 708, 449 N.W.2d 75 (Ct. App. 1989)). This presents a mixed question of fact
and law. M.Q., 152 Wis. 2d at 708. We affirm the lower court’s factual findings
unless they are clearly erroneous. WIS. STAT. § 805.17(2). But “the application of
a statute to specific facts are questions of law that we review de novo.” Garcia v.
Mazda Motor of Am., Inc., 2004 WI 93, ¶7, 273 Wis. 2d 612, 682 N.W.2d 365.
¶9 McGinnis argues that the circuit court did not have authority to enter
this order because “a violation of WIS. STAT. § 813.125 may not rest on conduct
that serves a legitimate purpose.” McGinnis contends that his nine underlying
lawsuits were meritorious and thus could not constitute harassment.
¶10 “Harassment” is “[e]ngaging in a course of conduct or repeatedly
committing acts which harass or intimidate another person and which serve no
legitimate purpose.” WIS. STAT. § 813.125(1)(am)2. Conduct with a harassing or
illegitimate purpose remains harassment even if it is accompanied by an
additional, legitimate purpose. Decker, 355 Wis. 2d 800, ¶38. This is so because
“intentionally harassing conduct can never serve a legitimate purpose.” Id. (citing
Bachowski v. Salamone, 139 Wis. 2d 397, 408, 407 N.W.2d 533 (1987)).
“[I]ntent to harass” is a question of fact “inferred from the acts and statements of
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No. 2019AP2235
the person, in view of the surrounding circumstances.” Welytok, 312 Wis. 2d 435,
¶¶25-26 (citation omitted).
¶11 Reviewing the circumstances presented here, we conclude that the
court did not erroneously exercise its discretion in ordering this injunction because
it properly weighed McGinnis’s conduct and drew appropriate inferences about
McGinnis’s intent. McGinnis could have chosen to file all of the lawsuits in one
place, such as the county that both parties shared, but he instead chose to file them
across four different states. These various venues include a state where the
Petitioner had never been. Similarly, McGinnis chose not to consolidate the
lawsuits and instead filed each individually one after the other. Nor could
McGinnis provide any reason why he chose to sue the Petitioner in states where
neither of them lived and where the Petitioner had never set foot, or his decision
not to consolidate his cases.7 Moreover, three of the lawsuits were repetitive,
setting forth identical facts as their bases. The trial court could reasonably
conclude that requiring responses to multiple lawsuits filed one after another in
inappropriate venues was intended to harass, intimidate, and impose an undue
burden on the Petitioner.
¶12 Decker is instructive here. In that case, a student caused persistent
disruptions at university meetings after being prohibited from entering university
property while he was suspended. Decker, 355 Wis. 2d 800, ¶40. The record
established that the student also swore at and threatened a university chancellor in
7
McGinnis’s excuse that Wisconsin courts cannot interpret another state’s contract is
without merit, as this practice dates back to the nineteenth century. Osborn v. Blackburn, 78
Wis. 209, 210, 47 N.W. 175 (1890) (“There are many cases where the courts are bound to decide
upon contracts according to the laws of other states ….”).
6
No. 2019AP2235
a meeting, stabbed the chancellor’s documents with a pen during a heated
argument, and attempted to purchase a handgun immediately after police tried to
serve him with a restraining order. Id. Decker maintained that his conduct had
the legitimate purpose of protesting student fees and that WIS. STAT. § 813.125
provides that conduct rises to the level of “harassment” only if it “serves ‘no
legitimate purpose.’” Decker, 355 Wis. 2d 800, ¶37 (emphasis added). Decker
argued that his conduct was motivated by his desire to protest fees, and a
harassment injunction could not impinge on his First Amendment free speech
rights. Id., ¶¶37, 43. The circuit court rejected Decker’s position and the supreme
court upheld the circuit court’s decision, explaining that Decker’s free speech
rights were not absolute, and as such, his right to protest on UW property could be
restricted, if the “purpose was even in part to harass,” thereby making an
injunction appropriate. Id., ¶¶38, 45.
¶13 Applying Decker to the situation here, we conclude that the circuit
court properly enjoined McGinnis from engaging in future litigation that is used,
even in part, to harass the Petitioner. In addition to the evidence presented at the
injunction hearing, the circuit court relied upon its own dealings with McGinnis in
previous cases and his prior reprimands.8 These facts taken together support the
court’s finding that McGinnis intended the myriad lawsuits against the Petitioner
to harass or intimidate her, at least on some level. McGinnis “cannot shield his
harassing conduct from regulation by labeling it” as serving a legitimate purpose.
8
In 2016, McGinnis defended a paternity suit brought by the Petitioner for custody and
child support. He filed so many motions pro se, despite being represented by counsel throughout,
that the court ordered McGinnis to file an affidavit swearing, “I am aware of the prohibition for
me to have any direct or indirect communications with any court official, or any court staff
pertaining to my case as long as I am represented by counsel. This includes filing any motions or
pleadings on my own, which I am aware I am not allowed to do.”
7
No. 2019AP2235
See id., ¶38. Under Decker, any additional, legitimate purpose underlying the nine
lawsuits cannot rectify harassing conduct. See id. (if conduct was used even in
part to harass, it can be enjoined despite having a coinciding legitimate purpose).
¶14 McGinnis also asserts that this order is unduly broad in violation of
his constitutional rights. He argues that this order violates his right to access
courts because he can no longer file “any lawsuit against Petitioner-Respondent no
matter how legitimate his claim may be.” Finally, McGinnis contends that this
order’s prior approval requirement unconstitutionally denies him procedural due
process by unduly restricting his notice and opportunity to be heard. We disagree.
¶15 Like issuing an injunction at all, the scope of an injunction is also
“within the sound discretion of the trial court.” Welytok, 312 Wis. 2d 435, ¶¶23-
24. “We may not overturn a discretionary determination that is demonstrably
made and based upon the facts of record and the appropriate and applicable law.”
Id., ¶24. However, “[i]njunctions … must be specific as to the prohibited acts and
conduct in order for the person being enjoined to know what conduct must be
avoided.” Id. A court order limiting the right to sue is constitutional if it is
narrowly constructed to properly balance the drain on taxpayer resources against
the individual’s right to sue. Minniecheske v. Griesbach, 161 Wis. 2d 743, 749,
468 N.W.2d 760 (Ct. App. 1991).
¶16 We conclude that the injunction requiring McGinnis to seek leave to
sue the Petitioner is sufficiently narrow to withstand constitutional scrutiny. The
right to access the courts “is neither absolute or unconditional.” Village of
Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App.
1997). “We think this is particularly true where a litigant has been found to
commence litigation for the purpose of harassment.” Puchner v. Hepperla, 2001
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No. 2019AP2235
WI App 50, ¶8, 241 Wis. 2d 545, 625 N.W.2d 609; see also State v. Casteel, 2001
WI App 188, ¶26, 247 Wis. 2d 451, 634 N.W.2d 338 (A “threshold review of the
merits is a sensible and constitutional means of dealing with a litigant intent on
pressing frivolous litigation.”) (citing In re Davis, 878 F.2d 211, 212-13 (7th Cir.
1989)).
¶17 Requiring McGinnis to seek permission before suing the Petitioner is
precisely the type of “threshold review” this court permits. See Casteel, 247
Wis. 2d 451, ¶¶25-26 (upholding a filing restriction that required, among other
things, a pre-appeal statement enumerating specific grounds for relief in order to
curb “repetitively litigating the same matters”). The restriction here is narrowly
tailored to the abuse because it does not prevent McGinnis from filing any and all
claims; instead, the limited threshold review shifts the burden onto him to first
show that any prospective litigation is properly filed in an appropriate venue, is
not repetitive, and is not begun for the purpose of harassment. The circuit court
specifically noted that McGinnis can still file his lawsuits so long as they are part
of a legitimate course of conduct. This injunction properly achieves that goal.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
9