Jay Stone v. Wisconsin Elections Commission

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.
October 14, 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. 2024AP1782 Cir. Ct. No. 2022CV528

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JAY STONE,

PLAINTIFF-APPELLANT,

V.

WISCONSIN ELECTIONS COMMISSION,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County:
DAVID P. WILK, Judge. Affirmed in part, reversed in part and cause remanded
with directions.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 STARK, P.J. Jay Stone, pro se, challenges three administrative
decisions of the Wisconsin Elections Commission, which dismissed complaints
that Stone filed against several respondents alleging that certain people and
No. 2024AP1782

entities violated various election laws. Pursuant to WIS. STAT.
§ 5.05(2m)(c)4. (2023-24),1 the Commission dismissed the complaints after
concluding that none of Stone’s allegations demonstrated reasonable suspicion
that any election laws had been violated. The Commission further exercised its
discretion under § 5.05(2m)(c)2.am. to impose a $500 forfeiture after finding one
of Stone’s complaints frivolous.

¶2 Stone petitioned for judicial review in the circuit court, and he now
appeals from the circuit court’s order dismissing his petition. Although Stone
presents several arguments in support of his belief that the Commission erred, the
issues in this case can be limited to two questions: (1) are the Commission’s
decisions under WIS. STAT. § 5.05(2m) subject to review under WIS. STAT.
ch. 227; and (2) is a complainant entitled to due process under
§ 5.05(2m)(c)2.am.?

¶3 In answer to the first question, we conclude that the Commission’s
decision not to investigate or otherwise pursue a complaint under WIS. STAT.
§ 5.05(2m) is solely vested in its discretion and is not amenable to judicial review
under WIS. STAT. ch. 227.

¶4 Turning to the second question, the parties do not dispute that Stone
is entitled to due process protections based on the Commission’s imposition of a
forfeiture under WIS. STAT. § 5.05(2m)(c)2.am. Nevertheless, the parties disagree
about the appropriate procedural protections. We determine that based on this

1
Stone’s complaints in this case were filed in 2021, but the parties do not allege that the
relevant statutes have changed since that time. Accordingly, for convenience, all references to
the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.

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record, any post-deprivation review of the Commission’s finding of frivolousness
and the resulting imposition of a forfeiture is insufficient alone to satisfy Stone’s
due process protections. Therefore, we conclude that before the Commission may
find a complaint frivolous and impose a forfeiture under § 5.05(2m)(c)2.am., the
Commission must provide the complainant with notice and an opportunity to be
heard on the issue of frivolousness. The Commission’s decision finding a
complaint frivolous must also clearly articulate the basis for its finding, the basis
for its imposition of a forfeiture and the amount imposed, and any findings of fact,
if applicable, on which it relies.

¶5 In light of these conclusions, we affirm in part and reverse in part the
circuit court’s order dismissing this case, and we remand to the Commission to
provide Stone with an opportunity to be heard on the frivolousness issue. If, after
Stone is heard on that issue, the Commission still finds one of Stone’s complaints
to be frivolous, the Commission must provide specific findings of fact and
conclusions of law underlying that decision and any resultant decision to impose a
forfeiture.

BACKGROUND

¶6 WISCONSIN STAT. § 5.05(2m) outlines the procedure for filing and
resolving complaints alleging election law violations with the Commission. Under
this subsection, “[a]ny person may file a complaint with the [C]ommission
alleging a violation of [WIS. STAT.] chs. 5 to 10 or 12.” Sec. 5.05(2m)(c)2.a.
Once a complaint is filed, the respondent has “an opportunity to demonstrate to the
[C]ommission, in writing and within 15 days after receiving the notice, that the
[C]ommission should take no action against the person on the basis of the
complaint.” Id. If the Commission finds no “reasonable suspicion that a

3
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violation” occurred, then “the [C]ommission shall dismiss the complaint.”
Sec. 5.05(2m)(c)4. (emphasis added). If the Commission does find reasonable
suspicion that a violation “has occurred or is occurring,” then the Commission
“may”—but is not required to—authorize an investigation by resolution, which it
retains authority to terminate at any time. Sec. 5.05(2m)(c)4.-5. The Commission
may also impose a forfeiture of “not more than the greater of $500 or the expenses
incurred by the [C]ommission in investigating the complaint” if it determines that
a complaint is frivolous. Sec. 5.05(2m)(c)2.am.

¶7 In this case, Stone filed three complaints. In the first—Stone v.
Obama, et al. (the Obama complaint)—he alleged that individuals associated with
When We All Vote (WWAV),2 Civic Nation, and the mayors of Milwaukee,
Madison, and West Allis violated WIS. STAT. §§ 7.15, 12.09, 12.11, and 12.13.
Specifically, Stone asserted that WWAV awarded several high schools $5,000 to
incentivize students to register to vote, which he claimed amounted to unlawful
payments connected to voting. Stone also objected to “Early Voting Celebrations”
and related events held near polling sites where attendees were offered food and
music, which he alleged violated prohibitions on providing items of value to
voters. The complaint acknowledged, however, that these events were open to
“voters and nonvoters alike.”

¶8 Further, Stone challenged food and registration drives at
Milwaukee’s Fiserv Forum as unlawful inducements. He also asserted that cards
distributed by WWAV asking “voters to commit to a pledge to vote” “deliberately

2
Michelle Obama was named as a respondent in Stone’s complaint because he alleged
that she “started the nonpartisan organization” WWAV and “handpicked eight [WWAV]
employees.”

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No. 2024AP1782

inflicted cognitive dissonance” and improperly pressured voters into casting
ballots. Finally, Stone argued that the mayors overstepped their authority by
partnering with WWAV through its “Civic Cities Mayors” program, thereby
assuming election duties reserved for municipal clerks. After obtaining written
responses to the Obama complaint, the Commission found no reasonable suspicion
of wrongdoing and dismissed the matter. The Commission further concluded that
the Obama complaint was frivolous, and it imposed a $500 forfeiture against
Stone.

¶9 In his second complaint—Stone v. Jarrett, et al.—Stone alleged that
Valerie Jarrett, Civic Nation, and the All In Campus Democracy Challenge
violated election statutes by using contests and pledges to improperly influence
students. According to Stone, awards given to schools with high voter registration
rates served as hidden payments to encourage voting. He also contended that
colleges required students to submit voting plans or pledges, which he described
as “psychological and emotional threats” that created “cognitive dissonance.”
According to Stone, these practices violated WIS. STAT. §§ 12.11(1), (1m)(a)1.,
12.09(2)-(3), and 12.13(1)(b). The Commission received responses and ultimately
dismissed Stone’s complaint on the ground that it did not raise reasonable
suspicion of a statutory violation.

¶10 In the third complaint—Stone v. Barrett, et al.—Stone alleged that
individuals affiliated with the Center for Tech and Civic Life and certain mayors
improperly influenced election administration by providing or accepting private
grants. He argued that “Safe Voting Plan” grants given to certain cities unlawfully
placed election administration in the hands of mayors rather than municipal clerks,
contrary to WIS. STAT. §§ 7.15 and 62.09(8). He further asserted that the plan
interfered with free elections under WIS. STAT. § 12.09(2) and violated WIS. STAT.

5
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§ 5.68 by shifting the costs of elections away from taxpayers. After receiving
written submissions, the Commission found no reasonable suspicion and
dismissed the complaint.

¶11 Following the Commission’s dismissals, Stone sought review in the
circuit court.3 Generally, Stone contended that the Commission had failed to
comply with the requirements of WIS. STAT. ch. 227. He also argued that the $500
forfeiture deprived him of due process.

¶12 The circuit court dismissed Stone’s petition by oral ruling, which
was later memorialized by written order. The court ruled that the decision whether
to investigate or proceed with a WIS. STAT. § 5.05(2m) complaint is a wholly
discretionary decision of the Commission that is not subject to judicial review by a
court. The court further stated that, even if judicial review were available, the
Commission acted reasonably by comparing Stone’s allegations with the statutes
he cited and concluding that he failed to establish a violation of the election law.
As for the $500 forfeiture, the court found that the Commission acted within its
authority by deeming the Obama complaint frivolous. On the due process issue,
the court concluded that Stone’s “cursory exploration of a constitutional
challenge” was “underdeveloped.” Stone appeals.

3
Stone filed a summons and complaint in the circuit court. The Commission filed a
motion to dismiss the complaint, seeking to convert the civil action to a WIS. STAT. ch. 227
judicial review. The court granted the Commission’s motion and reclassified the matter as a
judicial review under ch. 227.

Stone then filed an amended complaint, which the circuit court treated as an amended
petition. Stone also filed motions for discovery, to strike materials from the Commission’s brief
that were not part of the administrative record, and to supplement the record with additional
evidence.

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DISCUSSION

I. Judicial review under WIS. STAT. ch. 227

¶13 The threshold issue before us is whether the Commission’s decisions
under WIS. STAT. § 5.05(2m) to dismiss Stone’s complaints based on a lack of
reasonable suspicion are subject to judicial review under WIS. STAT. ch. 227. For
the reasons that follow, we conclude that the Commission’s decisions whether to
dismiss a complaint, to further investigate, to file a civil complaint, or to refer the
complaint to a district attorney are not subject to judicial review.4

¶14 The question of the applicability of WIS. STAT. ch. 227 judicial
review requires us to interpret several Wisconsin statutes. Statutory interpretation
presents a question of law that we review independently. Priorities USA v. WEC,
2024 WI 32, ¶12, 412 Wis. 2d 594, 8 N.W.3d 429. The purpose of statutory
interpretation “is to determine what the statute means so that it may be given its
full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. That analysis starts
with the language of the statute. Id., ¶45. “If the meaning of the statute is plain,
we ordinarily stop the inquiry.” Id. “Statutory language is given its common,

4
Our answer to this question eliminates the necessity of further analysis on the bulk of
Stone’s arguments on appeal, which assert that the Commission’s decisions failed to comply with
numerous requirements of WIS. STAT. ch. 227. We do not address these remaining arguments
further.

Additionally, although Stone mentions his motion to strike and motions to present
additional evidence in his brief-in-chief, he does not develop an argument regarding those
motions beyond asserting that the circuit court failed to comply with WIS. STAT. § 227.57(3)
when it reached its decision. See A.O. Smith Corp. v. Allstate Ins., Cos., 222 Wis. 2d 475, 491,
588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised on
appeal, is deemed abandoned.”).

7
No. 2024AP1782

ordinary, and accepted meaning, except that technical or specially-defined words
or phrases are given their technical or special definitional meaning.” Id. The
statutory language is also “interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
Id., ¶46. If this analysis results in a plain and clear statutory meaning, “then there
is no ambiguity, and the statute is applied according to this ascertainment of its
meaning.” Id. (citation omitted).

¶15 As we addressed briefly above, WIS STAT. § 5.05(2m) grants the
Commission authority to take action on a complaint and decide whether a
complaint gives rise to reasonable suspicion of an election law violation.
Sec. 5.05(2m)(c)2.-4. If the Commission concludes there is no reasonable
suspicion, it must dismiss the complaint. Sec. 5.05(2m)(c)4. (“If the
[C]ommission reviews a complaint and fails to find that there is a reasonable
suspicion that a violation … has occurred or is occurring, the [C]ommission shall
dismiss the complaint.”); State v. Cox, 2018 WI 67, ¶11, 382 Wis. 2d 338, 913
N.W.2d 780 (“The general rule is that the word ‘shall’ is presumed mandatory
when it appears in a statute.” (citation omitted)). Even if the Commission finds
reasonable suspicion, it still has discretion whether to commence an investigation.
Sec. 5.05(2m)(c)4. (“If the [C]ommission believes that there is reasonable
suspicion that a violation … has occurred or is occurring, the [C]ommission may
by resolution authorize the commencement of an investigation.”); Liberty Grove
Town Bd. v. Door Cnty. Bd. of Supervisors, 2005 WI App 166, ¶10, 284 Wis. 2d
814, 702 N.W.2d 33 (“The use of the word ‘may’ in a statute implies discretionary
authority.”).

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¶16 Once the Commission elects to commence an investigation, it may
retain a special investigator, but it still “may vote to terminate an investigation at
any time,” and the complaint is “deemed to be dismissed.” WIS. STAT.
§ 5.05(2m)(c)4.-5. Following an investigation, the Commission may find that
there is “probable cause to believe that a violation … has occurred or is
occurring,” which then allows the Commission to file a civil complaint or refer the
complaint to a district attorney. Sec. 5.05(2m)(c)6.a., 11. The Commission’s
deliberations on these issues occur in closed session. See WIS. STAT. § 19.851(2),
(3). Nevertheless, certain “records of the [C]ommission are open to public
inspection and copying.” Sec. 5.05(5s)(e)1.-4.

¶17 Based on the language of WIS. STAT. § 5.05(2m), we agree with the
Commission that its decision whether to act on Stone’s complaints is not subject to
judicial review. The plain language of the statute gives the Commission broad
prosecutorial authority to decide whether to dismiss the complaint, investigate, file
a civil complaint, or refer a matter to a district attorney. See State v. Jensen, 2010
WI 38, ¶34, 324 Wis. 2d 586, 782 N.W.2d 415 (“[T]he Government
Accountability Board[, the Commission’s predecessor agency,] is not required to
investigate alleged violations; it is merely permitted to investigate such
violations.”). For example, § 5.05(2m)(a) grants the Commission authority to
“investigate violations of laws administered by the [C]ommission” and to
“prosecute alleged … violations of those laws.” (Emphasis added.) The statute is
clear, however, that the exercise of that prosecutorial authority is discretionary: the
Commission “may prosecute” and “may … authorize the commencement of an
investigation.” Sec. 5.05(2m)(a), (c)4. (emphasis added).

¶18 WISCONSIN STAT. § 5.05(2m) then continues to describe the
Commission’s authority in terms of it retaining the option or permission to act,

9
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rather than an obligation to do so. For example, if the Commission finds
reasonable suspicion after reviewing a complaint, it “may” commence an
investigation, it “may elect” to retain a special investigator, and it “may vote to
terminate an investigation at any time.” Sec. 5.05(2m)(c)4.-5. If the Commission
ultimately finds that there is “probable cause” to believe a violation has occurred,
it “may” file a civil complaint or it “may” refer the matter to a district attorney.
Sec. 5.05(2m)(c)6.a., 11. Thus, the Commission operates in a prosecutorial
capacity, and the Commission’s prosecutorial authority remains entirely
discretionary.5

¶19 For that reason, we are persuaded by the Commission’s comparison
of its discretion to that of a district attorney. A district attorney “has great
discretion in determining whether to commence a prosecution,” and he or she “is
not required to prosecute all cases in which it appears that the law has been
violated.” State v. Karpinski, 92 Wis. 2d 599, 607 & n.12, 285 N.W.2d 729
(1979); State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160 (1978) (“The
discretion resting with the district attorney in determining whether to commence a
prosecution is almost limitless ….”); see also Youhoing v. United States, 971 F.
Supp. 2d 128, 129 (D.D.C. 2013) (“[T]he United States Attorney General has
absolute discretion in deciding whether to investigate claims for possible criminal
or civil prosecution. As a general rule … such decisions are not subject to judicial

5
As the Commission notes, WIS. STAT. § 5.05(2m)(a) begins with the command that
“[t]he [C]ommission shall investigate violations of laws administered by the [C]ommission,” but
the subsequent provisions governing enforcement are mostly stated in discretionary terms, using
the word “may.” See § 5.05(2m)(a), (c)2.am., (c)4., (c)6.a., (c)11. (emphasis added). Thus,
according to the Commission, “the introductory ‘shall’ is best understood as identifying the entity
that investigates—the Commission—rather than requiring it to investigate,” which it observes is
how our supreme court has interpreted the language. See State v. Jensen, 2010 WI 38, ¶34 &
n.12, 324 Wis. 2d 586, 782 N.W.2d 415.

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review.”). “By virtue of our separation-of-powers principle, no one branch of
government may substantially encroach upon a function that has been delegated to
another. As part of the executive branch of the government, district attorneys
‘have primary responsibility and wide discretion’ in charging criminal offenses
without judicial interference.” State v. Matthews, 2019 WI App 44, ¶13, 388
Wis. 2d 335, 933 N.W.2d 152 (citations omitted); see also State ex rel. Zignego v.
WEC, 2021 WI 32, ¶3, 396 Wis. 2d 391, 957 N.W.2d 208 (“With limited
exceptions, the judicial branch ordinarily does not order the executive branch to do
its job.”).

¶20 Like district attorneys, the Commission is part of the executive
branch. See State ex rel. Zignego v. WEC, 2020 WI App 17, ¶¶3, 6, 391 Wis. 2d
441, 941 N.W.2d 284, aff’d as modified, 396 Wis. 2d 391 (“The Commission is an
independent agency of this state’s executive branch responsible for the
administration of the election laws in this state.”); WIS. STAT. § 15.61 (creating the
Commission within WIS. STAT. ch. 15, which is titled “Structure of the Executive
Branch”). And also like district attorneys, who have concurrent jurisdiction over
election laws, the Commission exercises quasi-prosecutorial discretion when it
reviews a complaint under WIS. STAT. § 5.05(2m). See Jensen, 324 Wis. 2d 586,
¶34 & n.12 (explaining that “the appropriate district attorney’s office ha[s]
concurrent jurisdiction to investigate” election law violations); WIS. STAT.
§ 978.05(1) (authorizing district attorneys to prosecute criminal actions arising
from violations of WIS. STAT. ch. 5 and other election law chapters).

¶21 In further support of our position, we look to Wisconsin’s
Environmental Decade, Inc. v. PSC, 93 Wis. 2d 650, 654-55, 287 N.W.2d 737
(1980), where our supreme court addressed whether the Public Service
Commission’s (PSC) decision not to investigate allegedly discriminatory utility

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rates was a reviewable action under WIS. STAT. ch. 227.6 The statute at issue
provided that the PSC “may … investigate” potentially discriminatory public
utility rates. Wisconsin’s Env’t Decade, 93 Wis. 2d at 655 (citing WIS. STAT.
§ 196.28 (1977-78)). Our supreme court concluded that the PSC’s decision “not
to investigate this complaint against these utilities … is a nonreviewable,
discretionary determination.” Id.

¶22 Our consideration of Wisconsin’s Environmental Decade should
not suggest, however, that agency decisions are not reviewable under WIS. STAT.
ch. 227 simply by virtue of the decision being a discretionary determination. See,
e.g., Aldrich v. LIRC, 2012 WI 53, ¶93, 341 Wis. 2d 36, 814 N.W.2d 433
(recognizing judicial review of discretionary agency decisions and noting that
WIS. STAT. § 227.57(8) (2009-10) “states that ‘the court shall not substitute its
judgment for that of the agency on an issue of discretion’”). Far from it. Instead,
it is the nature of the Commission’s decisions under WIS. STAT. § 5.05(2m)—
which lack any statutory constraints on the Commission’s discretion and are
comparable to a district attorney’s prosecution decisions—that render the
decisions to dismiss the complaints in this case unreviewable under ch. 227.

6
In Stone’s reply brief, he argues that the Commission “stated a false analogy between
this case and” Wisconsin’s Environmental Decade, Inc. v. PSC, 93 Wis. 2d 650, 287 N.W.2d
737 (1980). According to Stone, Wisconsin’s Environmental Decade is “a District Court
decision, not a Supreme Court decision as the [Commission] stated in its brief,” and “[t]he
District Court’s decision does not contain the phrase ‘a nonreviewable, discretionary
determination’ as the [Commission] implied with its use of quotes.”

Stone is incorrect. The Commission’s citation to the case in its response brief is correct;
the case is a Wisconsin Supreme Court decision; and the court did use the phrase “nonreviewable,
discretionary determination.” Id. at 655. Based on the quotation that Stone included in his reply
brief, it appears that Stone may have been mistakenly reviewing a decision of this court rather
than the Wisconsin’s Environmental Decade decision. Regardless, aside from Stone’s claim that
the Commission was misstating the holding of the case, he does not otherwise distinguish
Wisconsin’s Environmental Decade or argue that its holding is inapplicable here.

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¶23 Stone contends, however, that the Commission’s decisions under
WIS. STAT. § 5.05(2m) are, in fact, subject to WIS. STAT. ch. 227 administrative
procedures. For support, he cites WIS. STAT. § 227.02, which states that
“[c]ompliance with this chapter does not eliminate the necessity of complying
with a procedure required by another statute.” Thus, he argues that the
Commission must comply with both § 5.05 and ch. 227.7 According to Stone,
“[b]y … not complying with the administrative procedures in ch. 227, the
[Commission] eliminated ch. 227’s procedural safeguards,” which are needed to
make our elections fairer and more transparent to the public.

¶24 Stone’s arguments on this point are misguided. As the Commission
explains, Stone’s assertions on appeal “just assume[] [WIS. STAT. ch.] 227
applies,” but beyond analogizing that the Commission is an “agency” under the

7
Stone asserts that the Commission failed to comply with WIS. STAT. ch. 227 in
numerous ways. First, he alleges that the Commission failed to record or transcribe his three
complaint hearings in violation of WIS. STAT. § 227.44(8). He asserts that the Commission failed
to issue findings of fact and conclusions of law in violation of WIS. STAT. § 227.47(1). Stone
argues that he was not given an opportunity for a hearing or reasonable notice under
§ 227.44(2)(a), (b), (c). He also contends he was not provided with the opportunity to present,
rebut, or offer countervailing evidence under WIS. STAT. §§ 227.44(3) and 227.45(2). Further, he
was not provided “Service of Decision” pursuant to WIS. STAT. § 227.48. Finally, Stone alleges
that the Commission “failed to cite reasons or rationale for its determination that Stone’s
complaints were frivolous” pursuant to WIS. STAT. § 227.483(3).

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WIS. STAT. § 227.01(1) definition, he provides no support for that assertion.8
See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)
(“Arguments unsupported by references to legal authority will not be
considered.”). WISCONSIN STAT. § 227.02 does not, as Stone insists, “mandate[]”
or “require[]” compliance with ch. 227. By its plain language, § 227.02 does not
expand ch. 227 into places that it otherwise could not reach; it merely clarifies that
ch. 227 is the general procedural framework unless displaced.

¶25 Further, the statutes that Stone references within WIS. STAT. ch. 227
are overwhelmingly procedural ones for “contested cases,” see WIS. STAT.
§§ 227.44, 227.45, 227.47, which have no application to WIS. STAT. § 5.05(2m)
decisions because the complaints are not contested cases under ch. 227.
WISCONSIN STAT. § 227.01(3) defines a “[c]ontested case” as “an agency

8
In his reply brief, Stone argues that the Commission is precluded from arguing before
us that WIS. STAT. ch. 227 does not apply because the Commission moved to dismiss his
complaint and convert it to a petition under ch. 227, and the circuit court granted the motion.
Although Stone’s argument on this issue is underdeveloped, he cites generally to Northern States
Power Co. v. Bugher, 189 Wis. 2d 541, 525 N.W.2d 723 (1995), suggesting that his argument is
based on issue preclusion grounds. “The rule of issue preclusion bars relitigation of issues of law
or fact that have been litigated in a previous action.” Reuter v. Murphy, 2000 WI App 276, ¶7,
240 Wis. 2d 110, 622 N.W.2d 464. Here, the question of whether the Commission’s decisions
under WIS. STAT. § 5.05(2m) are subject to judicial review under ch. 227 was not the question
before the court when it granted the Commission’s motion to dismiss and convert the case;
therefore, the issue was never “actually litigated and determined in the prior proceeding by a valid
judgment in a previous action.” See Estate of Rille v. Physicians Ins. Co., 2007 WI 36, ¶37, 300
Wis. 2d 1, 728 N.W.2d 693. We also question whether there was a “prior proceeding” or a
“previous action.” See id. However, the parties do not develop an argument on this issue, and,
accordingly, we will not further consider the matter.

To the extent that Stone is suggesting that the Commission is raising the issue of whether
WIS. STAT. ch. 227 applies for the first time on appeal and should be precluded from doing so on
the basis of the forfeiture doctrine, as a matter of judicial efficiency, a respondent may advance
for the first time on appeal any argument that would sustain the circuit court’s ruling. See State v.
Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985), superseded by statute on other
grounds, WIS. STAT. § 940.225(7).

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proceeding in which the assertion by one party of any substantial interest is denied
or controverted by another party and in which, after a hearing required by law, a
substantial interest of a party is determined or adversely affected by a decision or
order.” See also Collins v. Policano, 231 Wis. 2d 420, 427-28, 605 N.W.2d 260
(Ct. App. 1999) (“A contested case proceeding thus generally involves two or
more clearly identified adverse parties, as well as some type of fact-finding by an
agency decision maker,” which includes “the right to a hearing, the admission of
evidence, the right to cross-examination, and the issuance of written decisions.”).
The procedures in § 5.05(2m) do not meet these criteria. At the very least, there is
no evidentiary hearing required by law, responses to a complaint are “in writing”
only, and the meetings of the Commission are held in closed session. WIS. STAT.
§§ 5.05(2m)(c)2.a., 19.851(2), (3)(a).9

¶26 Therefore, we conclude that Stone cannot demonstrate that his WIS.
STAT. § 5.05(2m) complaints were contested cases subject to the provisions of
WIS. STAT. ch. 227. In his reply brief, Stone asserts, without any legal authority,
that “[b]y its very nature, each [Commission] complaint is a contested case
because each complaint has a complainant and respondent.” See Pettit, 171
Wis. 2d at 646. Stone further draws his own distinction, unsupported by legal
authority, see Pettit, 171 Wis. 2d at 646, that deliberation in closed session under
WIS. STAT. § 19.851(2) “is different from the presentation of a complaint,” and

9
Given our supreme court’s recent decision in Brown v. WEC, 2025 WI 5, ¶¶3-4, 414
Wis. 2d 601, 16 N.W.3d 619, where the court determined that the plaintiff was not “aggrieved by
an order” under WIS. STAT. § 5.06(6) because he did not suffer an injury to a legally recognized
interest, we also question whether the Commission’s decision on a WIS. STAT. § 5.05(2m)
complaint could be said to determine or adversely affect a substantial interest of the complainant.
The parties, however, did not raise that issue; therefore, it is not before us on appeal, and we will
not further address it.

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“the presentation, not deliberation, of [Commission] complaints should be open,
especially to the complainants and respondents.” That may very well be Stone’s
desire for how the Commission’s complaint process under § 5.05(2m) operates,
but Stone’s desire finds no support in the actual statutes.

¶27 Moreover, Stone’s arguments fail to account for the canon of
statutory construction providing that where a general statute and a specific statute
apply to the same subject, the specific statute controls. See State ex rel. Hensley
v. Endicott, 2001 WI 105, ¶19, 245 Wis. 2d 607, 629 N.W.2d 686; Westra v. State
Farm Mut. Auto. Ins. Co., 2013 WI App 93, ¶10, 349 Wis. 2d 409, 835 N.W.2d
280 (“If conflicting statutes on the same subject matter cannot be reconciled, the
more specific statute controls.”). Here, it is easy to determine which is the general
statute and which is the specific statute. WISCONSIN STAT. § 5.05(2m) decisions
must comply with specific procedures that govern the Commission’s process,
while WIS. STAT. ch. 227’s general procedures are applicable to a wide range of
agency decisions.10 Section 5.05(2m) controls.

¶28 In support of his position, Stone also observes that WIS. STAT.
§ 227.03(6) specifically excludes Commission orders under WIS. STAT. § 5.06(6)
from WIS. STAT. ch. 227, but WIS. STAT. § 5.05(2m) is not likewise excluded.
According to Stone, “[w]ithout an exclusion like there is for [§] 5.06(6) orders,
§ 5.05 complaints are subject to Chapter 227’s administrative procedure.”

10
In his reply brief, Stone does not appear to dispute the Commission’s assertion that
WIS. STAT. § 5.05 is the specific statute, whereas WIS. STAT. ch. 227 are the general statutes. See
State v. Chu, 2002 WI App 98, ¶41, 253 Wis. 2d 666, 643 N.W.2d 878 (explaining that
arguments raised in State’s response brief and not disputed in defendant’s reply may be deemed
admitted). Instead, Stone continues to declare that the § 5.05 procedures are inferior to the
ch. 227 safeguards. Stone’s quarrel, however, is with the legislature’s drafting of § 5.05(2m).

16
No. 2024AP1782

¶29 Equating WIS. STAT. § 5.05 with WIS. STAT. § 5.06 rests on a false
equivalence; the former governs the Commission’s enforcement powers, while the
latter provides a separate remedial process against local officials. As our supreme
court explained in Brown v. WEC, 2025 WI 5, ¶7, 414 Wis. 2d 601, 16 N.W.3d
619, “[§] 5.06(1) provides a means by which [an individual] … may challenge the
decisions of local election officials … if she or he believes that a local election
official’s decision-making violates the law.”11 The statute provides that the
Commission may conduct an investigation and hold a hearing “on the matter in the
manner prescribed for treatment of contested cases under [WIS. STAT.] ch. 227,”
§ 5.06(1), (4), (5); that it “may … summarily decide the matter before it and, by
order, require any election official to conform his or her conduct to the law,
restrain an official from taking any action inconsistent with the law or require an
official to correct any action or decision inconsistent with the law,” § 5.06(6); that
the Commission’s decision may be appealed to the circuit court by “[a]ny election
official or complainant who is aggrieved by an order,” § 5.06(8); and that the
court’s review is “pursuant to the applicable standards for review of agency
decisions under [WIS. STAT. §] 227.57,” § 5.06(9).

¶30 As demonstrated above, unlike WIS. STAT. § 5.05, the provisions of
WIS. STAT. § 5.06 create a contested case proceeding and supply a process for

11
In Brown, our supreme court considered whether Kenneth Brown had standing to seek
judicial review of a Commission decision “regarding the in-person absentee voting procedures
implemented by the Racine City Clerk during the August 2022 primary election” pursuant to a
complaint he filed under WIS. STAT. § 5.06(1) (2021-22). Brown, 414 Wis. 2d 601, ¶¶1-2.
Section 5.06(8) provides that in order to appeal the Commission’s decision, a complainant “must
have been ‘aggrieved by an order’ issued under § 5.06(6).” Brown, 414 Wis. 2d 601, ¶3. The
court determined that “Brown was not ‘aggrieved by an order’” because he “must [have]
suffer[ed] an injury to a legally recognized interest as a result of the decision,” and he “failed to
demonstrate that [the Commission’s] decision caused him any such injury.” Id., ¶4.

17
No. 2024AP1782

judicial review. Accordingly, as the Commission argues, it is evident that the
legislature “knew how to provide for a contested case proceeding and judicial
review in [WIS. STAT. ch.] 5, when applicable.” The fact that § 5.05(2m) has no
hearing mechanism or judicial review procedure demonstrates that the legislature
intended the statutes to operate differently. Cf. James v. Heinrich, 2021 WI 58,
¶¶19-20, 397 Wis. 2d 517, 960 N.W.2d 350 (explaining the presence of “specific
text” in one statute “in the face of its conspicuous absence from” another similar
statute “shows that the legislature withheld that authority” and “supports our
textual analysis”).

¶31 In summary, the Commission’s decisions under WIS. STAT.
§ 5.05(2m) to investigate a complaint, dismiss a complaint, terminate an
investigation, file a civil complaint, or refer a matter to a district attorney are not
subject to judicial review under WIS. STAT. ch. 227. Accordingly, Stone has no
right to a particular procedure governing that decision—including making findings
of fact and conclusions of law—beyond the process provided for in § 5.05(2m)
and no right to judicial review of the Commission’s decisions on his complaints.

II. Due process

¶32 We next consider Stone’s challenge to the Commission’s
determination that the Obama complaint was frivolous and its imposition of a
$500 forfeiture.12 Stone argues that the Commission erred by failing to provide
him due process prior to imposing that forfeiture, including by failing to provide
“prior notice of [the Commission’s] intent to impose a fine, fail[ing] to allow him

12
We requested supplemental briefing on this issue.

18
No. 2024AP1782

an opportunity to defend his complaint, and neglect[ing] to include the judicial
review notice required by WIS. STAT. § 227.48(2).”

¶33 For its part, the Commission agrees that “imposing forfeitures under
WIS. STAT. § 5.05(2m)(c)2.am. … entitle[s] Stone to due process,” but it asserts
that “pre-deprivation notice and opportunity to be heard” are not required.
Instead, according to the Commission, “[t]his post-deprivation judicial review
proceeding[, before this court and before the circuit court,] provides Stone with all
the process he is due.” According to the Commission, its “finding of frivolousness
enables judicial review even without express factual findings or a factual record”
because “[r]eviewing courts can assess whether Stone’s complaint was frivolous
as a matter of law by performing what amounts to a motion to dismiss
analysis: accepting his factual allegations as true, could they conceivably state a
legal claim?”

¶34 Here, too, we begin with the language of the statute. Within WIS.
STAT. § 5.05(2m), the Commission has discretion when dismissing a complaint to
find a complaint frivolous and to impose a forfeiture: “If the [C]ommission finds,
by a preponderance of the evidence, that a complaint is frivolous, the
[C]ommission may order the complainant to forfeit not more than the greater of
$500 or the expenses incurred by the [C]ommission in investigating the
complaint.” Sec. 5.05(2m)(c)2.am. The statute does not otherwise provide a
procedure or a standard by which the Commission is to review a complaint for
frivolousness. The parties do not cite any case law discussing frivolousness under
§ 5.05(2m)(c)2.am., and our independent research has not revealed a reported
decision construing § 5.05(2m)(c)2.am. or any evidence within the legislature’s
drafting file to shed light on the inclusion of this provision within the statute.

19
No. 2024AP1782

¶35 However, the frivolousness standard is found elsewhere in our
statutes. E.g., WIS. STAT. RULE 809.25(3)(c), WIS. STAT. §§ 227.483(3),
802.05(2), 809.103(2), 230.87(2), 814.245(11), 895.044(1). Therefore, we
conclude that the test of whether a complaint under WIS. STAT. § 5.05(2m) is
frivolous under subparagraph (2m)(c)2.am. is the same as the test set forth in these
statutes. Accordingly, a complaint under § 5.05(2m) is frivolous if the
Commission finds, by a preponderance of the evidence, that either of these two
standards is satisfied: (1) the complaint was submitted in bad faith, solely for
purposes of harassing or maliciously injuring another or the Commission; or
(2) the complainant, or his or her attorney, knew, or should have known, that the
complaint was without any reasonable basis in law or equity and could not be
supported by a good faith argument for an extension, modification or reversal of
existing law. See, e.g., RULE 809.25(3)(c); § 227.483(3).

¶36 We apply a mixed standard of review to the frivolousness
determination. Whether the complaint was submitted in bad faith, solely for
purposes of harassing or maliciously injuring another or the Commission is
analyzed under a subjective standard. See Stern v. Thompson & Coates, 185
Wis. 2d 220, 235-36, 517 N.W.2d 658 (1994).13 The Commission “must
determine what was in the person’s mind and were his or her actions deliberate or
impliedly intentional with regard to harassment or malicious injury.” See id. at

13
Stern v. Thompson & Coates, 185 Wis. 2d 220, 235-36, 517 N.W.2d 658 (1994),
involved a determination of frivolousness under WIS. STAT. § 814.025 (1991-92). After our
supreme court decided Stern, it repealed § 814.025 and recreated WIS. STAT. § 802.05. See S.
CT. ORDER 03-06, 2005 WI 38, 278 Wis. 2d xiii, xiv (eff. Mar. 31, 2005). Nevertheless, the
standards outlined in Stern have not been overruled, and courts continue to cite the case in
determining frivolousness.

20
No. 2024AP1782

236. A person’s state of mind is “inferred from the acts and statements of the
person, in view of the surrounding circumstances.” Id. at 236-37.

¶37 In contrast, courts use an objective inquiry to determine whether an
action was without any reasonable basis in law or equity and could not be
supported by a good faith argument for an extension, modification or reversal of
existing law. See Juneau County v. Courthouse Emps., Local 1312, 221 Wis. 2d
630, 638-39, 585 N.W.2d 587 (1998). “The standard is ‘whether the attorney
knew or should have known that the position was frivolous as determined by what
a reasonable attorney would have known or should have known under the same or
similar circumstances.’” Id. at 639 (quoting Stern, 185 Wis. 2d at 241).

¶38 Both the determination of what a party knew or should have known
and whether the complaint was submitted in bad faith are factual questions.
See Stern, 185 Wis. 2d at 236, 241; see also Wisconsin Chiropractic Ass’n v.
Chiropractic Examining Bd., 2004 WI App 30, ¶16, 269 Wis. 2d 837, 676
N.W.2d 580 (“The first warranty [under WIS. STAT. § 802.05(1)]—that the
pleading is not used for an improper purpose—requires factual findings ….”). The
Commission’s factual “findings will not be upset unless they are against the great
weight and clear preponderance of the evidence,” and courts “must accept a
reasonable inference drawn by the [Commission] from established facts if more
than one reasonable inference may be drawn.” See Stern, 185 Wis. 2d at 236-37;
see also Wisconsin Chiropractic Ass’n, 269 Wis. 2d 837, ¶16 (applying the
clearly erroneous standard). Further, as our supreme court has expressed in other
contexts involving a frivolousness finding, “[t]he findings must be specific,”
Stern, 185 Wis. 2d at 236-37, and the finder of fact cannot “conclude
frivolousness or lack of it without findings stating which … criteria were present,
harassment or knowledge or imputed knowledge that there was not ‘any

21
No. 2024AP1782

reasonable basis in law or equity’ for the position taken,” Sommer v. Carr, 99
Wis. 2d 789, 792, 299 N.W.2d 856 (1981) (citation omitted).

¶39 In contrast, whether certain facts “fulfill the legal standard” for
either ground for a frivolous finding is a question of law. See Stern, 185 Wis. 2d
at 236. The question of “whether a legal theory is justified by existing law or a
good faith argument for a change in the law” also presents a question of law.
Wisconsin Chiropractic Ass’n, 269 Wis. 2d 837, ¶16. “All doubts on this issue
are resolved in favor of the party or attorney” alleged to have filed a frivolous
complaint with the Commission. See Rabideau v. City of Racine, 2001 WI 57,
¶46, 243 Wis. 2d 486, 627 N.W.2d 795.

¶40 As we explained above, Stone challenges, on due process grounds,
the Commission’s finding that the Obama complaint was frivolous and warranting
of a forfeiture. “The Fourteenth Amendment to the United States Constitution and
art. I, § 1 of the Wisconsin Constitution prohibit government actions that deprive
any person of life, liberty, or property without due process of law.” State v.
Ozuna, 2017 WI 64, ¶22, 376 Wis. 2d 1, 898 N.W.2d 20 (citation omitted).
“[T]here can be no doubt that at a minimum” the due process clause “require[s]
that deprivation of life, liberty or property by adjudication be preceded by notice
and opportunity for hearing appropriate to the nature of the case.” State v.
Lagrone, 2016 WI 26, ¶48, 368 Wis. 2d 1, 878 N.W.2d 636 (quoting Mullane v.
Central Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)); see also Goldberg
v. Kelly, 397 U.S. 254, 267 (1970) (“The fundamental requisite of due process of
law is the opportunity to be heard … at a meaningful time and in a meaningful
manner.” (citations omitted)); Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
(“Due process is flexible and calls for such procedural protections as the particular
situation demands.” (citation omitted)).

22
No. 2024AP1782

¶41 As is also noted above, the parties do not dispute that Stone is
entitled to procedural due process in connection with the Commission’s imposition
of the $500 forfeiture. See Milwaukee Dist. Council 48 v. Milwaukee County,
2001 WI 65, ¶50, 244 Wis. 2d 333, 627 N.W.2d 866 (explaining that protected
property interests naturally include “actual ownership of real estate, chattels, or
money” (citation omitted)); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50
(1991) (cautioning that courts “must comply with the mandates of due process”
when imposing a sanction). We agree with the parties that the prospect of the
Commission imposing a forfeiture of up to $500, and the fact that Stone was
assessed a $500 forfeiture, bring Stone’s interest here within the ambit of the due
process clause. According to the Commission, “the question then becomes
‘whether the procedures used to deprive [Stone] of that interest were
constitutionally sufficient.’” See Andrade v. City of Milwaukee Bd. of Fire &
Police Comm’rs, 2024 WI 17, ¶28, 411 Wis. 2d 340, 5 N.W.3d 261. For the
reasons that follow, we conclude that whatever procedure the Commission used to
find that the Obama complaint was frivolous and to impose a forfeiture was
constitutionally insufficient because it failed to provide Stone with notice and an
opportunity to be heard.

¶42 In the present context, we conclude that due process principles
require that a complainant be provided timely and adequate notice of the
Commission’s consideration that the complaint may be frivolous and a forfeiture
is appropriate under WIS. STAT. § 5.05(2m)(c)2.am. and that he or she be provided

23
No. 2024AP1782

an opportunity to defend his or her position before the Commission.14 See Howell
v. Denomie, 2005 WI 81, ¶¶17, 19, 282 Wis. 2d 130, 698 N.W.2d 621
(“We … conclude that in order to determine that an appeal is frivolous [pursuant
to WIS. STAT. RULE 809.25(3)(c)], the court of appeals is required to give notice
that it is considering the issue. It must also give an opportunity to respond to the
issue before a determination is made.”); State v. Nielsen, 2011 WI 94, ¶33, 337
Wis. 2d 302, 805 N.W.2d 353 (suggesting that the court of appeals require a show
cause order before imposing sanctions for a failure to comply with the Rules of
Appellate Procedure); see also Larsen v. City of Beloit, 130 F.3d 1278, 1286-87
(7th Cir. 1997) (observing that whether sanctions are imposed under Federal Rule
of Civil Procedure 11, 28 U.S.C. § 1927, or pursuant to a court’s inherent powers,
“the imposition of sanctions requires that the party to be sanctioned receive notice
of the possible sanction and an opportunity to be heard”).

¶43 We find particularly persuasive our supreme court’s decision in
Nielsen. There, this court “imposed a sanction of $150 on the Office of the State
Public Defender [(the SPD)] after finding that the appendix to the [SPD’s] brief
was deficient and the attorney’s certification of the appendix was ‘false.’”
Nielsen, 337 Wis. 2d 302, ¶2. The SPD sought review of that decision before our
supreme court, objecting on the basis that we “impos[ed] a monetary penalty,
without giving notice to counsel and without giving counsel an opportunity to be

14
We do not, however, conclude that a complainant is entitled to an evidentiary hearing
before the Commission finds his or her complaint frivolous. See, e.g., In re Kunstler, 914 F.2d
505, 521 (4th Cir. 1990) (“Due process does not require an evidentiary hearing before sanctions
are imposed ….”); DiPonio Constr. Co. v. International Union of Bricklayers & Allied
Craftworkers, Local 9, 687 F.3d 744, 752 (6th Cir. 2012) (“‘In this circuit, there is no
requirement that a full evidentiary hearing be held before imposing sanctions.’ All that is
required is that the party ‘be given notice and an opportunity to be heard.’” (citations omitted)).

24
No. 2024AP1782

heard in writing.” Id., ¶¶1-2, 18. As the Commission argues here, we asserted in
Nielsen that our “practice of imposing a sanction allow[ed] counsel to seek
[post-deprivation] review of the sanction,” including a motion for reconsideration
before this court or a petition for review before our supreme court. See id., ¶24.

¶44 The court recognized that “[a] motion for reconsideration and a
petition for review” would be problematic in this context because the sanctions
issue and the merits of the case were “altogether different dispute[s]” that “should
be untethered from one another to avoid any risk of confusion or conflict.” Id.,
¶26. Further, the court recognized the “significance of counsel’s … reputational
interests” as a reason for providing attorneys “a forum in which to explain their
decisions about the contents of an appendix before the label ‘false certification’ is
attached.” Id., ¶32.

¶45 Ultimately, our supreme court “suggest[ed] that hereafter when the
court of appeals is considering imposing a sanction on an attorney for filing a brief
with a deficient appendix,” that “an order to show cause should be issued directing
counsel to explain why a violation … should not be found and why the attorney
should not pay … a sanction.” Id., ¶33 (emphasis added). The court reasoned that
“[a]n understanding of the attorney’s position will better enable the court of
appeals to gauge whether a violation has occurred and whether a sanction should
be imposed”; that “[a]n order to show cause separate from the opinion on the
merits of the underlying case allows attorneys to pursue and argue the dispute
about the appendix without distracting from, delaying, or undermining the client’s
cause” and “prevents the complication and confusion that could arise if two
independent disputes that may be moving in opposite directions in the court
system are connected to one another”; and that an order to show cause gives

25
No. 2024AP1782

“[a]ttorneys … a meaningful opportunity to protect their professional reputation
and avoid monetary sanctions.” Id., ¶¶34-35, 39-40, 44.

¶46 The Nielsen court’s reasoning for suggesting the use of a show cause
order is sound and is equally persuasive in the context of the Commission finding
a complaint frivolous. Here, as in Nielsen, providing a complainant notice of the
possible frivolous finding and an opportunity to present his or her position before
the Commission would better allow the Commission to properly assess each
element under the grounds for a frivolousness finding, some of which require
findings of fact; would allow the Commission to separate the question of whether
the complaint had established reasonable suspicion, which is unreviewable on
judicial review, from the question of whether the complaint was frivolous, which
is reviewable; and would provide claimants a meaningful opportunity to protect
their reputation.15 Further, the Nielsen court noted that although the $150
monetary sanction at issue in that case was “modest,” it was “not trivial,” id., ¶19,
which supports our conclusion that the prospect of a $500 forfeiture is not

15
Stone reasonably submits that his reputation has been damaged by the Commission’s
finding that one of his complaints was frivolous and by the subsequent media attention.
According to Stone, the Commission “deliberately published only its own findings while labeling
Stone’s complaint as ‘frivolous’ on its public website”; the Commission’s refusal “to include
Stone’s filings and supporting documents resulted in substantial reputational harm to Stone”; and
“[t]he harm [the Commission] caused was exacerbated when media outlets relied solely on [the
Commission’s] characterization of Stone having submitted a ‘frivolous’ election complaint.” See
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (“Where a person’s good name,
reputation, honor, or integrity is at stake because of what the government is doing to him [or her],
notice and an opportunity to be heard are essential.”). The Commission argues in response that
“Stone is not an attorney—he is a pro se litigant—and so his professional reputation as an
attorney is not at stake.” While we agree that the reputational damage is not perhaps as
significant for a pro se litigant, Stone still has an interest in avoiding the “frivolous” label, and he
should be provided an opportunity to “explain [his] decisions … before the label [‘frivolous’] is
attached.” See State v. Nielsen, 2011 WI 94, ¶32, 337 Wis. 2d 302, 805 N.W.2d 353.

26
No. 2024AP1782

insignificant, especially for pro se litigants, and represents a serious interest at
stake.

¶47 The Commission responds to the above assertions by arguing that
Stone’s procedural due process rights have been satisfied through this judicial
review proceeding. Essentially, the Commission asserts that although WIS. STAT.
ch. 227 “review is not available regarding its decisions to reject Stone’s
complaints for lack of reasonable suspicion,” ch. 227 review is available to review
the Commission’s frivolousness finding under WIS. STAT. § 5.05(2m)(c)2.am.
The Commission likens a frivolousness finding to a circuit court’s grant of a
motion to dismiss, explaining that the court creates no factual record and the
analysis is limited to the four corners of the complaint. Citing Neitzke v.
Williams, 490 U.S. 319, 326 (1989), superseded by statute on other grounds, 28
U.S.C. § 1915A(b),16 the Commission argues that it “performed essentially that
same analysis here” because “[i]t examined Stone’s complaint and, without
performing any further factual investigation, deemed the complaint to be frivolous
as a matter of law.” Therefore, argues the Commission, this “post-deprivation
process provides a complete and adequate remedy” and “pre-deprivation notice

16
The Commission cites Neitzke v. Williams, 490 U.S. 319, 326 (1989), superseded by
statute on other grounds, 28 U.S.C. § 1915A(b), for its alleged statement that there is
“‘considerable’ overlap between failure-to-state-a-claim and frivolousness standards.” In
Neitzke, the question before the United States Supreme Court was “whether a complaint filed in
forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is
automatically frivolous within the meaning of [the former] 28 U.S.C. § 1915(d),” and the court
concluded that “[t]he answer … is no.” Neitzke, 490 U.S. at 320. In the decision, what the Court
actually said was that “it is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and
the frivolousness standard of § 1915(d) were devised to serve distinctive goals, and that while the
overlap between these two standards is considerable, it does not follow that a complaint which
falls afoul of the former standard will invariably fall afoul of the latter.” Neitzke, 490 U.S. at
326. Under these circumstances, we disagree that Neitzke provides support for the Commission’s
position in this case.

27
No. 2024AP1782

and an opportunity to be heard [are] not constitutionally required.” See Thorp v.
Town of Lebanon, 2000 WI 60, ¶53, 235 Wis. 2d 610, 612 N.W.2d 59 (“The
requirement of procedural due process is met if a state provides adequate
post-deprivation remedies.”).

¶48 Initially, we disagree with the extent of the Commission’s
comparison between the standards for a motion to dismiss and a frivolousness
finding. The Commission’s review of and decision to dismiss a complaint are, as
the Commission suggests, analogous to the review conducted for a motion to
dismiss. However, as we have outlined above, see supra ¶35, the standard for
frivolousness exceeds the standard for a failure to state a claim. Once the
Commission determines that there is no basis for it to further investigate a WIS.
STAT. § 5.05(2m) claim, to file a civil complaint, or to refer the complaint to a
district attorney, the Commission must still decide (1) by a preponderance of the
evidence, whether the complaint was submitted in bad faith or whether the
complainant knew, or should have known, that the complaint was without any
reasonable basis in law or equity and could not be supported by a good faith
argument for a change of existing law; (2) whether to impose a forfeiture for the
frivolous complaint; and (3) how much of a forfeiture—“not more than the greater
of $500 or the expenses incurred by the commission in investigating the
complaint”—to impose. See § 5.05(2m)(c)2.am. These determinations are not
comparable to the determinations required for a motion to dismiss.

¶49 We further disagree with the Commission’s assertion that judicial
review under WIS. STAT. ch. 227 provides an adequate post-deprivation remedy in
this case where there is no record related to the Commission’s frivolousness
decision. In response to the Obama complaint, the Commission issued a letter
informing Stone that “[the Obama complaint] is dismissed due to lack of

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No. 2024AP1782

reasonable suspicion, and the Commission further finds that the claims against the
mayors of Milwaukee, West Allis, and Madison and Michelle Obama are frivolous
and orders Mr. Stone to forfeit $500.”

¶50 According to the Commission, “[t]hough terse, that conclusion of
law provided ‘enough information’ for the circuit court to ‘discern the basis of the
[Commission’s] decision’ and therefore review it,” see Oneida Seven Generations
Corp. v. City of Green Bay, 2015 WI 50, ¶49, 362 Wis. 2d 290, 865 N.W.2d 162,
because its “general finding” of frivolousness necessarily “implie[d] all facts
necessary to support it, … specifically, that Stone knew or should have known that
his complaint rested on groundless legal theories,” see Valadzic v. Briggs &
Stratton Corp., 92 Wis. 2d 583, 591, 286 N.W.2d 540 (1979) (observing that “[a]
general finding by [an agency] implies all facts necessary to support it” and that
findings “may be inferred from other properly made findings” or other evidence).

¶51 We conclude that the information contained in the Commission’s
letter does not provide enough information to discern the basis for its decision to
facilitate a review under WIS. STAT. ch. 227. The Commission stated only that the
Obama complaint was frivolous. While it is true, as the Commission suggests,
that the circuit court and this court could perhaps extrapolate the reasons for the
Commission’s finding of frivolousness—i.e., that it believed that Stone’s claims
were without any reasonable basis in law or equity or lacked evidentiary support—
frivolousness is not strictly synonymous with lack of evidentiary support or
baseless legal theories. Frivolousness is established based on more, and the
Commission asks us to infer too much. Moreover, given that the Commission’s
letter specifically identified Stone’s claims against individuals—i.e., the mayors of
Milwaukee, West Allis, and Madison as well as Michelle Obama—it would also
be fair for us to infer that the Commission believed that Stone’s complaint was

29
No. 2024AP1782

filed in bad faith with an intent to harass. The possibility that both beliefs could
be true adds to our inability to discern the basis for the Commission’s decision.

¶52 In addition, the frivolousness standard does not ask only whether the
complaint is “without any reasonable basis in law or equity and could not be
supported by a good faith argument for an extension, modification, or reversal of
existing law”; it also asks whether “[t]he party or the party’s attorney knew, or
should have known,” that fact. That question, as noted above, is determined based
on an objective standard and, in this case, requires an inquiry into what a
reasonable pro se complainant would have known or should have known under the
same or similar circumstances. See Courthouse Emps., 221 Wis. 2d at 638-39;
Sommer, 99 Wis. 2d at 797 (“The question is not whether a party can or will
prevail, but rather is that party’s position so indefensible that it is frivolous and
should that party or its attorney have known it.”). “Determining what was known
or should have been known involves questions of fact.” Stern, 185 Wis. 2d at
241; see also Jandrt ex rel. Brueggeman v. Jerome Foods, Inc., 227 Wis. 2d 531,
550, 597 N.W.2d 744 (1999) (noting multiple factors the circuit court should
consider to determine what was known or should have been known). The
Commission made no such findings, and we are unable to deduce or infer these
findings from the Commission’s letter. Accordingly, we disagree with the
Commission that this court and the circuit court “required no further evidentiary
record or explicit findings of fact to evaluate the Commission’s argument.”

CONCLUSION

¶53 In summary, we conclude that the Commission’s decisions under
WIS. STAT. § 5.05(2m) to dismiss Stone’s complaints on the basis of a failure to
establish reasonable suspicion are solely vested in the discretion of the

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No. 2024AP1782

Commission and are not subject to judicial review under WIS. STAT. ch. 227.
Therefore, we affirm the circuit court’s decision in part on that basis.

¶54 We also conclude that the Commission’s decision to find the Obama
complaint frivolous and impose a $500 forfeiture is subject to judicial review
under WIS. STAT. ch. 227. We further conclude that prior to any judicial review,
Stone was entitled under the tenets of procedural due process to notice and an
opportunity to be heard before the Commission found the Obama complaint
frivolous and imposed a forfeiture. Under the circumstances here, where there is
no record to review related to the Commission’s finding that Stone’s complaint is
frivolous or the rationale behind the $500 forfeiture, any judicial review under
ch. 227 would be speculative and illusory or, at best, perfunctory and would not
provide adequate safeguards against an erroneous deprivation.

¶55 We therefore reverse the circuit court’s decision in part and remand
for the Commission to provide Stone with an opportunity to be heard on the
frivolousness issue. If, after Stone is heard on that issue, the Commission still
finds one of Stone’s complaints to be frivolous, the Commission must provide
specific findings of fact and conclusions of law underlying that decision and any
resultant decision to impose a forfeiture.

¶56 No costs to either party.

By the Court.—Order affirmed in part, reversed in part and cause
remanded with directions.

Recommended for publication in the official reports.

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