Thomas Krupenkin v. Jennifer Mnookin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 21, 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. 2024AP2125 Cir. Ct. No. 2023CV676

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

THOMAS KRUPENKIN,

PETITIONER-APPELLANT,

V.

JENNIFER MNOOKIN,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Affirmed.

Before Graham, P.J., Kloppenburg, and Taylor, 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. 2024AP2125

¶1 PER CURIAM. Thomas Krupenkin appeals a circuit court order
that affirmed a disciplinary decision by Jennifer Mnookin, who is the chancellor of
the University of Wisconsin-Madison. In that decision, the university suspended
Krupenkin’s employment for two years without pay for violating a policy that
required him to disclose certain inventions to the university. Krupenkin argues
that his constitutional right to due process was violated during the course of the
disciplinary proceedings, and that the invention-disclosure policy is
unconstitutionally vague. We reject Krupenkin’s arguments and affirm.

BACKGROUND

¶2 The events that gave rise to this appeal began when Krupenkin, a
tenured professor of engineering at UW-Madison, did not disclose two inventions
that he patented at a time that he was employed by the university. The subject of
the disciplinary proceedings was whether Krupenkin’s failure to disclose these
inventions violated a UW System policy.

¶3 The invention-disclosure policy at issue provides: “All inventions
discovered by faculty … on appointment while pursuing their university duties, or
on university premises, or with university supplies or equipment must be reported”
to UW-Madison using an invention-disclosure report form created by the
Wisconsin Alumni Research Foundation (WARF). UW SYS. ADMIN. POL’Y
§ 1315 (through June 17, 2025), https://www.wisconsin.edu/uw-policies/uw-
system-administrative-policies/inventions-and-patents/. The policy further
provides that upon disclosure, inventions will be subject to an “equity review” to
determine the faculty member’s rights in the invention. § 1315. A related policy
provides: “Except as required by funding agreements, other contractual
agreements with third parties such as material transfer agreements, or other

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University policies, the University does not claim ownership rights in the
intellectual property generated during research by its faculty, staff, or students.”
UW-MADISON ADMIN. POL’Y § 4008 (through July 12, 2022),
https://policy.wisc.edu/library/UW-4008.1

¶4 The facts giving rise to the disciplinary proceedings came to light
during a post-tenure review that occurred in 2019. During that review, Krupenkin
identified a number of inventions that he had patented as evidence of his scholarly
productivity. However, Krupenkin had not disclosed some of these inventions to
UW-Madison, which led the university to commence disciplinary proceedings
against him.

¶5 Disciplinary proceedings of this type are governed by the “Faculty
Policies and Procedures” for UW-Madison. Pursuant to those procedures, the
disciplinary proceeding begins with the filing of a formal written complaint. See
UW-MADISON ADMIN. POL’Y (FPP) § 9.04, https://secfac.wisc.edu/policies/.2 If
the provost determines that the allegations in the complaint may have merit and
warrant discipline, FPP § 9.05, there are multiple levels of proceedings and
appeals that may follow. First, an investigator appointed by the provost conducts
an investigation and issues recommendations. FPP § 9.06. Then, the provost
consults with a disciplinary committee and issues an initial disciplinary decision.
FPP § 9.06. If the faculty member chooses to appeal, the faculty member may
request a factfinding hearing before the Committee on Faculty Rights and

1
All references to the UW-Madison Administration Policies are to the July 2022
register.
2
A copy of these procedures is found in the administrative record compiled by the
chancellor. Henceforth, we cite to the Faculty Policies and Procedures as “FPP.”

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Responsibilities (the “Faculty Committee” or, sometimes, just the “Committee”).
FPP §§ 9.07, 9.08, 9.09. Following the hearing, the Faculty Committee will issue
findings of fact and recommendations, which it will submit to the chancellor, and
the faculty member can file written objections with the chancellor. FPP § 9.11.
The chancellor’s decision is the final decision of the university, WIS. ADMIN.
CODE UWS § 6.01(5),3 and it is the decision that is subject to judicial review
should an aggrieved party seek it.

¶6 Here, the written complaint alleged that Krupenkin “appear[ed] to
have intentionally disregarded his obligations under [UW-System] policy to
disclose inventions arising from his university duties.”4 The complaint was
referred to the provost, who determined that the allegations, if true, amounted to a
prima facie case “for discipline or dismissal.” See FPP §§ 9.05-9.06 (providing
that complaints shall be referred to the provost, who “shall determine” whether “a
prima facie case exists for the imposition of discipline or dismissal”).

¶7 The provost then appointed a professor, Paul Ahlquist, to investigate
the allegations in the complaint and notified Krupenkin of his right to object to the
appointment. See FPP § 9.06 (providing that the provost “shall institute an
investigation by appointing an investigator,” and the faculty member “can state
objections” to the investigator). Krupenkin did not object. Krupenkin was also

3
All references to the Wisconsin Administrative Code are to the July 2025 register, and
all references to the Wisconsin Statutes are to the 2023-24 version.
4
The complaint also alleged other violations, specifically that Krupenkin failed to
comply with his conflict-of-interest management plan; that he used university resources for the
benefit of external private activities; that he misrepresented his productivity during the post-
tenure review process; and that he improperly characterized his private entity’s funds. We do not
discuss these allegations further because they are not pertinent to our resolution of this appeal.

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notified of his right to meet with the provost, and his right to be advised and
represented by legal counsel. He was provided with “a written statement of the
matter(s) to be investigated” and “a copy of the original complaint.” See FPP
§ 9.06 (discussing the rights of faculty members at this stage of the disciplinary
proceedings).

¶8 Ahlquist conducted an investigation over the next several months
and eventually submitted his conclusions in the fall of 2020. As part of the
investigatory process, Ahlquist scheduled an interview with Krupenkin to “seek
his input on major issues emerging from [the] investigation,” which resulted in
Ahlquist engaging in additional investigation and analysis. Ultimately, Ahlquist
determined that Krupenkin had violated the invention-disclosure policy by failing
to disclose two energy-harvesting inventions that he had patented in 2012 and
2017 respectively.

¶9 The most significant factual dispute was whether Krupenkin
discovered the inventions at issue while he was pursuing his university duties, or
whether the inventions were derived from Krupenkin’s personal inspirations and
separable from his university research on the same topics, as Krupenkin asserted.
Ahlquist concluded that Krupenkin discovered these inventions while he was
pursuing his university duties. To that end, Ahlquist noted that Krupenkin had
researched and published articles about energy harvesting as part of his university
research program, and that this work, which predated Krupenkin’s patent filings,
had occurred on university premises. Ahlquist determined that the conclusions
from Krupenkin’s university research on energy harvesting substantially
overlapped with the inventions that Krupenkin later patented. Based on this
“close[] overlap,” Ahlquist found Krupenkin’s assertions about his inventions—
that they were derived “solely from his personal inspirations” and “clearly

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separable from his own thinking on the same topics within his UW program”—to
be “remarkable.”5

¶10 Following Ahlquist’s investigation, the provost convened a
committee to “advise the provost as to the actions that should be taken,” if any,
with respect to Krupenkin’s misconduct. See FPP § 9.06.B. The provost
ultimately issued a disciplinary decision that placed Krupenkin on unpaid leave for
two years. The decision also provided that he would be subject to oversight for a
number of years following his return.

¶11 After the provost’s decision was issued, Krupenkin was advised of
his right to participate in voluntary and confidential settlement negotiations, as
well as his right to appeal. See FPP § 9.06. Krupenkin elected to appeal his
charges to the Faculty Committee.

5
More specifically, as to the first undisclosed invention, Krupenkin published an article
in 2011 about a “vibrational energy harvester,” which was “a novel mechanical-to-electrical
energy conversion method achieved through the interaction of arrays of moving microscopic
liquid droplets with novel nanometer-thick multilayer dielectric films.” Krupenkin published this
article in affiliation with UW-Madison, and he conceded that its contributions to the field were
based on research that he conducted on UW-Madison premises. The following year, Krupenkin
filed a patent application for a “vibrational energy harvester.” Like the 2011 article, the 2012
application described “[a]n apparatus comprising a mechanical-to-electrical energy converting
device [that] utilizes an array of microfluidic droplets in association with a planar electrode
separated by a dielectric layer.”

The second undisclosed invention concerns research that Krupenkin began around
July 2015. The research was conducted with UW-Madison students in UW-Madison facilities,
and specifically concerned “[m]echanical energy harvesting using a liquid metal vortex
magnetohydrodynamic generator.” An article that Krupenkin authored with UW-Madison
students about this research stated that “[a]nother way of thinking about the vortex MHD
generator is as a homopolar generator with a liquid rotor rather than a solid one.” (Footnote
omitted.) Krupenkin filed a provisional patent application in 2016, which related to a “‘liquid
rotor’ based magneto-hydro-dynamic (MHD) harvesting device.” Then in 2017, Krupenkin filed
a standard patent application concerning a “[m]echanical energy harvesting utilizing liquid rotor
homopolar generator.”

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¶12 The Faculty Committee is UW-Madison’s “standing committee” that
“[d]eals with allegations of faculty misconduct” and “[s]erves as the hearing
committee” in discipline and dismissal cases. See WIS. ADMIN. CODE § UWS
4.03; FPP §§ 6.38, 9.07. The Faculty Committee is comprised of nine faculty
members who are elected by the faculty at large. FPP § 6.38. It must contain at
least one faculty member from each of UW-Madison’s four faculty divisions
(biological sciences, arts and humanities, physical sciences, and social sciences)
and no more than three members from a single division. FPP § 6.38.

¶13 When a faculty member appeals a disciplinary action to the Faculty
Committee and requests a factfinding hearing, the Committee shall conduct a
hearing to determine whether the discipline that the provost imposed was
warranted. See FPP §§ 9.07, 9.09. The Committee’s factfinding hearing must
comply with WIS. ADMIN. CODE §§ UWS 4.05-4.06, which address “due process”
requirements and “procedural guarantees” afforded to the faculty member facing
discipline. See FPP § 9.08. Among other things, a “fair hearing” “shall include”
service of written notice of the hearing on the specific charges; the right to names
of witnesses and access to documentary evidence that will be used against the
faculty member; the right to be heard in defense to the charges; the right to
counsel and to offer witnesses; and the right to confront and cross-examine
adverse witnesses. See § UWS 4.05. The burden of proof at the factfinding
hearing rests with the university, see § UWS 4.06(1)(a), and the Committee must
find that the university has shown “just cause for the imposition of discipline” by
“clear and convincing evidence,” see FPP § 9.09.

¶14 Turning back to the matter at hand, Krupenkin requested a
factfinding hearing, and a hearing was scheduled. Prior to the hearing date, the
Faculty Committee advised Krupenkin that a panel of five of its nine members

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would preside at his hearing. Krupenkin objected to the five-member hearing
panel, arguing that the Wisconsin Administrative Code, UW-Madison polices, and
due process required that the nine members of the Committee all be on the panel.
Krupenkin specifically noted FPP § 6.38, which sets forth the composition of the
Committee and further provides that the Committee is required to select
replacements if “any members” of the Committee are disqualified from a
“particular hearing.” Read together, Krupenkin argued, these provisions “do not
allow for the Committee to select a lesser number of its members to hear any
particular matter.”

¶15 The Faculty Committee gave UW-Madison’s office of legal affairs
an opportunity to address Krupenkin’s objection. The office did not take a
position on the merits of the objection, but requested that the Committee explain
how a five-member panel “aligns with” the Wisconsin Administrative Code and
UW-Madison’s policies.

¶16 The Faculty Committee ultimately denied Krupenkin’s objection,
explaining that a five-member panel is consistent with the Committee’s
established internal procedures, which provide that “[a] hearing panel of 5 or more
[Faculty Committee] members” can preside at any given hearing.6 The Faculty

6
As we discuss in more detail below, another of the Faculty Committee’s internal
procedures states that “[a] quorum of the [C]ommittee exists when six or more members … are
present.” The Committee did not address whether the five-member hearing panel was consistent
with this procedure.

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Committee also took the position that the five-member panel was consistent with
the Wisconsin Administrative Code and UW-Madison’s policies.7

¶17 Krupenkin’s disciplinary hearing was held in December 2022. Five
members of the Faculty Committee were on the hearing panel, and none were
from Krupenkin’s faculty division. UW-Madison presented a number of witnesses
including Ahlquist, who discussed the conclusions of his investigation, and several
UW-Madison and WARF officials, who discussed their understanding of the
invention-disclosure policy. Krupenkin had the opportunity to cross-examine
these witnesses, to be heard in defense of the charges, and to present his own
witnesses. He was represented by counsel throughout the hearing.

¶18 With respect to the alleged violations of the invention-disclosure
policy, Krupenkin’s primary defense was that he did not discover his inventions
while he was pursuing his university duties. Krupenkin testified that his
inventions are “conceptual” and sometimes “just come[] in a flash” on his personal
time. As we understand this testimony, Krupenkin appeared to be taking the
position that, even if the inventions were related to his work at UW-Madison, any
inventions that he conceptualized on his own time are separate and distinct from
that work. Therefore, Krupenkin contends, such inventions cannot be considered
to have been discovered “while pursuing … university duties.” See UW-MADISON
ADMIN POL’Y § 4008.

7
Among other things, the Committee noted that FPP § 6.38 addressed “the composition”
of the Faculty Committee. The Committee appeared to suggest that, although FPP § 6.38
required that the Committee contain nine members, it did not necessarily require that all nine
members preside at any given hearing. The Committee further noted that the disqualification-
and-replacement provision in FPP § 6.38 that Krupenkin had referenced “can be read” to require
replacement only “if there are insufficient members … (i.e., less than five) available to sit on a
particular hearing.”

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¶19 After several days of testimony, the hearing panel issued its findings
of fact and recommendations, in which it unanimously determined that there was
just cause for disciplining Krupenkin for failing to comply with the invention-
disclosure policy. In its findings, the panel wrote that Krupenkin’s “UW-Madison
duties include engaging in scholarship and research related to the field of
mechanical engineering[]” and that “[t]his work has considerable overlap with at
least some of … Krupenkin’s ‘conceptual’ inventions.”

¶20 The findings and recommendations were transmitted to the
chancellor, Mnookin. After considering Krupenkin’s objections, Mnookin issued
a final decision, in which she upheld the provost’s initial decision to place
Krupenkin on unpaid leave for two years.

¶21 Krupenkin filed a petition in the circuit court seeking judicial review
of the decision. See WIS. STAT. § 227.52 (“Administrative decisions which
adversely affect the substantial interests of any person, whether by action or
inaction, whether affirmative or negative in form, are subject to review as
provided in this chapter[.]”). He argued that the decision should be reversed
because the five-member hearing panel violated his due process rights, and
because the university’s invention-disclosure policies were unconstitutionally
vague. The court rejected these arguments and affirmed the decision. Krupenkin
appeals.8

8
The respondent’s brief does not comply with WIS. STAT. RULE 809.19(8)(bm), which
addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when
paginating briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’
on the cover”). This rule has recently been amended, see S. CT. ORDER 20-07, 2021 WI 37, 397
Wis. 2d xiii (eff. July 1, 2021), and the reason for the amendment is that briefs are now
electronically filed in PDF format, and are electronically stamped with page numbers when they
are accepted for efiling. The pagination requirements ensure that the numbers on each page of a
(continued)

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DISCUSSION

¶22 Under WIS. STAT. ch. 227, we review the decision of the agency, not
the decision of the circuit court. Wisconsin Pro. Police Ass’n v. WERC, 2013 WI
App 145, ¶10, 352 Wis. 2d 218, 841 N.W.2d 839. Krupenkin “bears the burden of
demonstrating that the agency decision should be modified or set aside.”
Bethards v. DWD, 2017 WI App 37, ¶16, 376 Wis. 2d 347, 899 N.W.2d 364.
Whether due process requirements are violated constitutes questions of law that
we review de novo. City of South Milwaukee v. Kester, 2013 WI App 50, ¶13,
347 Wis. 2d 334, 830 N.W.2d 710. Vagueness challenges are a subset of due
process claims, Cemetery Services v. DRL, 221 Wis. 2d 817, 829, 586 N.W.2d
191 (Ct. App. 1998), and are also reviewed under the de novo standard of review.

¶23 We address Krupenkin’s due process arguments about the five-
member panel and vagueness in that order.

I. The Faculty Committee Hearing

¶24 The Due Process Clause of the Fourteenth Amendment protects the
property interests of tenured public employees. Arneson v. Jezwinski, 225
Wis. 2d 371, 393, 592 N.W.2d 606 (1999); Marder v. Board of Regents of Univ.
of Wis. Sys., 2004 WI App 177, ¶30, 276 Wis. 2d 186, 687 N.W.2d 832
(Marder I). Accordingly, before tenured public employees may be deprived of
their employment, they are entitled to certain procedural protections. See
Marder I, 276 Wis. 2d 186, ¶¶30-31. In considering what process is due under

brief “will match … the page header applied by the eFiling system, avoiding the confusion of
having two different page numbers” on every page of a brief. Supreme Court Note, 2021,
RULE 809.19.

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these circumstances, courts balance the following interests: the public employee’s
interest in “retaining employment”; the government interest in avoiding
“administrative burdens” and securing the “expeditious removal of unsatisfactory
employees”; and “the risk of erroneous termination.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542-43 (1985) (citing Matthews v. Eldridge, 424 U.S.
319, 335 (1976)); see also Arneson, 225 Wis. 2d at 403-404.

¶25 Here, Krupenkin argues that due process required that he receive a
hearing in front of the full Faculty Committee before UW-Madison could suspend
his employment for two years. We are not persuaded.

¶26 The Supreme Court’s decision in Loudermill is instructive on this
point. See Loudermill, 470 U.S. at 532. There, the Court considered the
constitutional due process protections that must be afforded to a tenured public
employee facing termination. Id. The Court determined that in this context, due
process requires only that the employee receive “oral or written notice of the
charges,” “an explanation of the employer’s evidence,” “some kind of hearing,”
and “an opportunity … to present [the employee’s] side of the story.” Id. at 542,
546; see also Marder I, 276 Wis. 2d 186, ¶31 (citing Loudermill). Although the
Court acknowledged “the significance of the [employee’s] interest in retaining
employment” and “the severity of depriving a person of the means of livelihood,”
Loudermill, 470 U.S. at 543, it reasoned that “[t]o require more than [these
protections] prior to termination would intrude to an unwarranted extent on the
government’s interest in quickly removing the unsatisfactory employee,” id. at
546.

¶27 Accordingly, contrary to Krupenkin’s argument, nothing in
Loudermill suggests that Krupenkin was entitled to a hearing panel of any specific

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composition or of a specific quantity of persons as a matter of constitutional due
process. And Krupenkin does not argue that the due process protections that the
university provided to him were somehow inconsistent with those outlined in
Loudermill.

¶28 The record instead shows that the due process provided to
Krupenkin was robust and satisfied all constitutional prerequisites. As discussed
above, the disciplinary process began with Krupenkin receiving notice of the
charges against him and a copy of the written complaint. The allegations in the
complaint were then subject to an investigation, and Krupenkin was given the
opportunity to be represented by counsel, to object to the university’s choice of
investigator, and to provide his side of the story to that investigator. After the
investigation’s conclusion, Krupenkin had a right to engage in settlement
negotiations or to appeal the suspension decision. Krupenkin exercised his right to
appeal and had a factfinding hearing, where he again had the right to and was
represented by counsel. During the course of the hearing, Krupenkin had a right to
access a list of the university’s witnesses and documentary evidence; he had the
opportunity to confront and cross-examine the university’s witnesses; and he had
the opportunity to present his own witnesses and defense. The hearing panel was
required to provide Krupenkin with a written decision detailing its findings, and
could find “just cause” for discipline only if the findings were “based on clear and
convincing evidence in the hearing record.” See FPP § 9.09.

¶29 Under these circumstances, we conclude that the risk of an erroneous
employment decision was minimal, and we are not convinced that constitutional
due process required any additional protection that the full Faculty Committee
presiding at Krupenkin’s hearing would provide. See Loudermill, 470 U.S. at
543.

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¶30 Krupenkin makes several arguments to the contrary, but none are
persuasive. He appears to be arguing that a hearing before a smaller subset of the
Faculty Committee violated his right to a “fair hearing” before a “fair tribunal.”
To this end, he cites our supreme court’s decision in Marder II, and specifically,
the language from that decision stating that “a basic element of constitutional due
process … is a fair hearing conducted before a fair tribunal.” Marder v. Board of
Regents of Univ. of Wis. Sys. (Marder II), 2005 WI 159, ¶27, 286 Wis. 2d 252,
706 N.W.2d 110. He points out that none of the members of the hearing panel
were from his own faculty division, and he argues that that omission was
“crucial[]” because “[h]aving members from each [d]ivision assures … that there
is a fair representation of the unique perspectives each division may have.”

¶31 We agree that it can be beneficial to have diverse perspectives
represented in decisionmaking bodies. However, this does not mean that the size
or composition of Krupenkin’s hearing panel resulted in the hearing or tribunal
being unfair. Krupenkin does not cite any authority for the proposition that a “fair
hearing” or a “fair tribunal” would require a certain composition or quantity of
decisionmakers in an administrative proceeding like this.

¶32 To the contrary, the case law appears to focus on whether the
decisionmakers were “impartial,” whether there was “bias or unfairness in fact,”
and, in limited circumstances, whether the “risk of bias [was] impermissibly high.”
Marder II, 286 Wis. 2d 252, ¶27 (citations omitted); see also Withrow v. Larkin,
421 U.S. 35, 46 (1975). Administrative adjudicators, including the members of
the Faculty Committee who were on the hearing panel, “retain a presumption of
honesty and integrity” and, “absent ‘a showing to the contrary, [they] are assumed
to be [individuals] of conscience and intellectual discipline, capable of judging a
particular controversy fairly on the basis of its own circumstances.’” Marder II,

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286 Wis. 2d 252, ¶29 (citations omitted). Krupenkin does not point us to anything
in the record that would overcome that presumption.

¶33 Krupenkin next cites to various provisions found in the Wisconsin
Administrative Code and UW-Madison’s Faculty Policies and Procedures, and he
argues that these provisions definitively provide that he had the right to a
factfinding hearing before all nine members of the Faculty Committee. We
disagree for at least two reasons. First, Krupenkin does not identify any authority
that supports the proposition that a violation of an administrative code provision or
university policy amounts to a constitutional due process violation. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (a court need
not consider arguments that are unsupported by legal citations or are otherwise
undeveloped). Second, as we now explain, Krupenkin does not persuade us that
the five-member panel violated any of the administrative code provisions or the
UW-Madison policies that he cites.

¶34 As for the Wisconsin Administrative Code, Krupenkin cites five
different provisions, but none of these provisions support his argument. See WIS.
ADMIN. CODE § UWS 2.02 (Delegation); WIS. ADMIN. CODE § UWS 4.03
(Standing faculty committee); WIS. ADMIN. CODE § UWS 4.04 (Hearing); WIS.
ADMIN CODE. § UWS 4.05 (Adequate due process); WIS. ADMIN. CODE § UWS
4.06 (Procedural guarantees). That is, none of these provisions state that the entire
Faculty Committee must participate in a factfinding disciplinary hearing. See
§ UWS 2.02 (providing that rules that are developed by faculty must be approved
by the board “prior to their taking effect”); § UWS 4.03 (providing that each
institution shall have a “[s]tanding faculty committee” that is “charged with
hearing dismissal cases and making recommendations under this chapter”);
§ UWS 4.04 (providing the timeline for faculty disciplinary hearings); § UWS

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4.05 (discussing the requirements of “[a]dequate due process” for a “faculty
member whose dismissal is sought,” but not stating any requirements with respect
to the composition of the hearing body); § 4.06 (discussing “[p]rocedural
guarantees” that “[a]ny hearing held shall comply with,” which does not include
any requirement related to the composition of the hearing body).

¶35 The same is true with respect to the UW-Madison Faculty Policies
that Krupenkin cites. Although these policies provide that the Faculty Committee
must be comprised of nine members, none of the policies state that all nine
members of the Committee must participate in factfinding disciplinary hearings.
See FPP § 6.38 (providing that the Faculty Committee’s membership shall have
nine seats “elected by the faculty at-large,” with at least one member from each
division; and that when a member is disqualified for a “particular hearing,” a
replacement shall be selected); FPP § 9.07 (providing that the Committee shall
conduct a factfinding hearing when a faculty member appeals a disciplinary
hearing); FPP § 9.08 (providing that a faculty member “shall have a right to …
[b]e heard by all bodies passing judgment or making recommendations”); FPP
§ 9.09 (providing that a Committee finding that discipline is warranted “requires a
majority vote with not more than two dissenting votes”).

¶36 Krupenkin’s argument to the contrary zeroes in on two of the above-
mentioned UW-Madison policies, FPP §§ 6.38 and 9.09. He appears to suggest
that these policies are patently inconsistent with a hearing panel that consists of
anything less than nine members. We are not persuaded.

¶37 The first UW-Madison policy is the disqualification policy, which,
as mentioned, provides that “if any member” of the Faculty Committee is
disqualified for “a particular hearing,” that member “shall be” replaced. See FPP

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§ 6.38. However, the fact that a disqualified Committee member must be replaced
does not necessarily mean that a hearing panel must contain a total of nine
members. As the Faculty Committee interpreted the policy, the policy merely
provides that if a Committee member is disqualified from a hearing—whether the
hearing panel was comprised of nine members or five members—that member
must be replaced. This interpretation is not clearly erroneous. Pfeiffer v. Board
of Regents of Univ. of Wis. Sys., 110 Wis. 2d 146, 154-57, 328 N.W.2d 279
(1983) (concluding that a university committee’s interpretation of the university’s
own policies and procedures is “entitled to controlling weight unless inconsistent
with the language of the [policy] or clearly erroneous” (citation omitted)).

¶38 The second UW-Madison policy that Krupenkin directs us to is the
majority vote provision, which provides that a finding by the Faculty Committee
for discipline “requires a majority vote with not more than two dissenting votes.”
See FPP § 9.09. Again, this policy does not necessarily mean that a nine-member
hearing panel is required. Both a five-member panel and a nine-member panel
could comply with the requirement that there be a “majority vote with not more
than two dissenting votes.”

¶39 At best, Krupenkin is able to identify a potential conflict between
two provisions in the Faculty Committee’s own internal procedures, and to argue
that a five-member hearing panel may be inconsistent with one of these two
provisions. Although the Committee’s internal procedures explicitly provide that
the Committee can conduct a factfinding hearing with just five members, those
same procedures also provide that “[a] quorum of the [C]ommittee exists when six

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or more members of the [C]ommittee are present.”9 According to Krupenkin, “[i]t
is axiomatic that a quorum is necessary for any committee … to conduct its
business[,]” and he argues that here, business requiring a quorum should include
factfinding hearings.

¶40 It is not at all clear that the provision about quorums in the Faculty
Committee’s internal procedures applies to disciplinary factfinding hearings.10
Yet, even if we were to assume that it does, and that the Committee violated its
own quorum procedures by having fewer than six members on Krupenkin’s
hearing panel, it does not follow that Krupenkin would be entitled to relief from
this court. This is a WIS. STAT. ch 227 review of an administrative decision, and
WIS. STAT. § 227.57(4) provides that a court shall not remand a case for further
action based on an agency’s failure to follow a “prescribed procedure” when the
“fairness of the proceedings or the correctness of the action” was not impaired.
Here, as discussed, we are not persuaded that a five-member panel impaired the
“fairness of the proceedings or the correctness of the action.”

¶41 Accordingly, for all of these reasons, we conclude that Krupenkin
has failed to meet his burden to show that UW-Madison violated his due process

9
We note that the provision in the Faculty Committee’s internal procedures regarding a
quorum also appears to be inconsistent with UW-Madison’s policies, which state that “a quorum
exists when a majority of the voting members of a committee is present.” See FPP § 6.10. Here,
a majority of the Committee would be five members, not six. For purposes of this appeal, we
need not resolve any discrepancy between the quorum provision in the Committee’s internal
procedures and UW-Madison’s quorum policy; we merely note UW-Madison’s quorum policy
because the circuit court’s decision rested in part on that FPP provision.
10
Generally speaking, “in the event of ‘a conflict between a general and a specific
statute,’” the more specific statute controls. See Belding v. Demoulin, 2014 WI 8, ¶17, 352
Wis. 2d 359, 843 N.W.2d 373 (citation omitted). Here, the Faculty Committee’s internal
procedure about the minimum number of members that must participate in a hearing panel is the
more specific of the two internal procedures.

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rights when it conducted his factfinding hearing with only five members of the
Faculty Committee.

II. The Invention-Disclosure Policy

¶42 We now turn to Krupenkin’s argument that the invention-disclosure
policy is unconstitutionally vague. It appears that Krupenkin is making a facial
challenge to the invention-disclosure policy as well as an as-applied challenge.
However, because we conclude that the policy is not unconstitutionally vague as
applied to Krupenkin, we need not address the facial challenge. See State v.
Wood, 2010 WI 17, ¶44 n.15, 323 Wis. 2d 321, 780 N.W.2d 63 (courts “look to
the application of the challenged law or action to the challenger before considering
hypothetical applications” and need only reach facial challenges when the
challenger demonstrates “that the directive [is] impermissibly vague as applied to
[the challenger]”).

¶43 “Vagueness is a procedural due process concept which is driven by
notions of fair play.” Cemetery Servs., 221 Wis. 2d at 829. An administrative
policy is unconstitutionally vague when the policy does not provide “‘fair notice’
of the prohibited conduct.” Id.; see also State ex rel Kalt v. Board of Fire &
Police Comm’rs, 145 Wis. 2d 504, 510, 427 N.W.2d 408 (Ct. App. 1988) (a
policy is vague if “[people] of common intelligence must necessarily guess [as to]
its meaning and differ as to its application”).11

11
The vagueness rule “applies to administrative regulations affecting conditions of
governmental employment in the same manner as it applies to penal statutes.” State ex rel Kalt v.
Board of Fire & Police Comm’rs, 145 Wis. 2d 504, 510, 427 N.W.2d 408 (Ct. App. 1988).

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¶44 In an as-applied challenge to the vagueness of a law or policy, we
assess “the merits of the constitutional claim by considering the facts of the
particular case, not hypothetical facts in other situations.” See State v.
Grandberry, 2018 WI 29, ¶34, 380 Wis. 2d 541, 910 N.W.2d 214. The question is
whether the policy provides “fair notice” to “a person of ordinary intelligence” in
Krupenkin’s situation that the person’s conduct violates the invention-disclosure
policy. See id.

¶45 Here, we conclude that a person of ordinary intelligence in
Krupenkin’s situation would have had fair notice that the person’s conduct
violated the invention-disclosure policy. In doing so, we defer to the Faculty
Committee’s findings of fact, as well as the weight that the Committee gave to the
evidence presented at the factfinding hearing. See WIS. STAT. § 227.57(6) (“[T]he
court shall not substitute its judgment for that of the agency as to the weight of
evidence on any disputed finding of fact. The court shall, however, set aside
agency action … if it finds that the agency’s action depends on any finding of fact
that is not supported by substantial evidence in the record.”).

¶46 Based on the Faculty Committee’s findings of fact, there is no doubt
that Krupenkin’s conduct fell squarely within the invention-disclosure policy. As
mentioned, the policy requires that faculty disclose all inventions “discovered …
while pursuing their university duties, or on university premises, or with university
supplies or equipment.” UW-MADISON ADMIN POL’Y § 4008. The Committee
found that, as part of Krupenkin’s “university duties,” he was to engage “in
scholarship and research related to [the] field of mechanical engineering,” and that
the two inventions that Krupenkin failed to disclose were “a product” of these
duties. This finding was based on there being “considerable overlap” between
energy-harvesting research that Krupenkin conducted in affiliation with UW-

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No. 2024AP2125

Madison and with UW students on UW-Madison premises, and two energy-
harvesting inventions that Krupenkin later patented but failed to disclose. A
person of ordinary intelligence in Krupenkin’s situation would have had fair notice
that failing to disclose inventions that arose from the person’s university research
program and that were based on research conducted with university students on
university premises would have violated the invention-disclosure policy.

¶47 Krupenkin disputes this conclusion for two reasons, both of which
are unpersuasive. He first argues that, although the policy covers faculty
inventions discovered “while pursuing their university duties, or on university
premises, or with university supplies or equipment,” certain university officials
have interpreted the policy more broadly, for instance, to cover any invention that
arises “during the course of employment.”12 Krupenkin asserts that this
interpretation is inconsistent with the language of the policy because a professor
may have an “‘aha’ moment” about an invention “at home, or on the beach” and
that discovery could have “nothing” to do with the professor’s research or
university duties.

¶48 The scenario Krupenkin describes presents interesting questions that
could arise in other cases. However, the fact that certain “proscriptions” of the

12
Specifically, Krupenkin points to the testimony of three witnesses at the factfinding
hearing: an intellectual property disclosure manager at UW-Madison; the chief intellectual
property and licensing officer at WARF; and the dean of the college of engineering at UW-
Madison. Among other things, Krupenkin points out that the intellectual property disclosure
manager testified that the “preferred process” is for faculty members to disclose all inventions
discovered during the term of employment, and the WARF officer testified that he could not think
of a scenario in which a faculty member would not have an obligation to disclose if the faculty
member believed the faculty member had come up with “something” that was an invention.
Krupenkin also argues that the engineering dean testified that faculty members have “a duty to
disclose any invention,” but Krupenkin takes this testimony out of context.

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No. 2024AP2125

invention-disclosure policy have the potential to be unconstitutionally vague in
other situations does not help Krupenkin. Kalt, 145 Wis. 2d at 510-11. “Even
where the outermost edges of a [policy] may be imprecise,” a litigant “has no
standing to attack the [policy] as vague and void on its face” if the litigant’s
“conduct falls within the ‘hard core’ of the proscriptions.” Id. at 510-11. And
here, based on the findings of fact, Krupenkin’s conduct falls squarely within the
“hard core” of the invention-disclosure policy. Therefore, he cannot save his
vagueness challenge by asserting that other applications of the policy might, at
times, be unclear.

¶49 Krupenkin also seems to be arguing that he did not violate the
invention-disclosure policy. As he did during Ahlquist’s investigation and then
during the factfinding hearing, Krupenkin maintains that his inventions were not
discovered while he was pursuing his university duties, and were instead
conceived on his own time and separate from his work for the university. He takes
issue with the Committee’s reliance on Ahlquist’s investigation because, he
asserts, Ahlquist’s conclusions were based on an overreliance on the “conceptual
overlaps” between his university work and inventions, and on Ahlquist’s
assumption that Krupenkin could not “distinctly separate his thinking on his
research topics into personal and academic realms.”

¶50 It is not clear that this argument could support a vagueness challenge
to the invention-disclosure policy—it instead appears to be an attempt to attack the
Faculty Committee’s findings of fact. In any event, whatever issues Krupenkin
has with Ahlquist’s investigative conclusions, we will “not substitute” our
judgment for that of the Faculty Committee “as to the weight of the evidence on
any disputed finding of fact.” See WIS. STAT. § 227.57(6). Here, the Committee
credited Ahlquist’s investigative conclusions and did not credit Krupenkin’s

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version of events. That is, the Committee did not believe that these inventions
were unrelated to Krupenkin’s university work or that Krupenkin discovered these
inventions on his own time independent of his university work. Under these
circumstances, where “reasonable minds could arrive at the conclusion reached by
[the Committee],” we defer to their conclusions. See Milwaukee Symphony
Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d 674.

¶51 For all these reasons, we reject Krupenkin’s argument that the
invention-disclosure policy is unconstitutionally vague as applied to him.

CONCLUSION

¶52 We conclude that Krupenkin’s constitutional due process rights were
not violated, and we affirm the circuit court’s order.

By the Court.—Order affirmed.

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

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