Schramek v. Bohren

Decision Date12 July 1988
Docket NumberNo. 87-1831,87-1831
Citation429 N.W.2d 501,145 Wis.2d 695
PartiesSue SCHRAMEK and Stacy Schramek, by Robert E. Sutton, her guardian ad litem, Plaintiffs-Appellants, v. Michael O. BOHREN, Thomas R. Schramek, Robert Schramek, Joseph Greco, and Steven J. May, Defendants-Respondents.
CourtWisconsin Court of Appeals

Review Denied. *

Sutton & Kelly by Robert E. Sutton, Milwaukee, on briefs, for plaintiffs-appellants.

Godfrey, Trump & Hays by Thomas W. Godfrey and M. Susan Maloney, Milwaukee, on briefs, for defendant-respondent Michael O. Bohren.

Schulz, Schapekahm & Eich, S.C. by Penelope D. Hillemann, Milwaukee, on briefs, for defendants-respondents Thomas R. Schramek and Robert Schramek.

George E. Rice, Milwaukee County Corp. Counsel, on briefs, Asst. Corp. Counsel John Jorgensen, of counsel, Milwaukee, for defendant-respondent Joseph Greco.

Grant F. Langley, Milwaukee City Atty., on brief, Asst. City Atty. Scott G. Thomas, of counsel, Milwaukee, for defendant-respondent Steven J. May.



Sue Schramek and her daughter, Stacy, by her guardian ad litem (collectively, Sue) appeal from an order dismissing their complaint against Thomas R. Schramek, Robert Schramek, Michael O. Bohren, Joseph Greco, and Steven J. May. Sue's complaint sets forth six causes of action: (1) a violation of rights protected by 42 U.S.C. sec. 1983; (2) assault and battery by Thomas; (3) intentional infliction of emotional distress; (4) invasion of privacy; (5) malicious prosecution and abuse of process; and (6) that sec. 813.12, Stats., is unconstitutional on its face and in its application.

Sue essentially raises two issues of error: whether the trial court improperly sustained the constitutionality of sec. 813.12, Stats., and whether the trial court erred as a matter of law in dismissing all of her causes of action. We conclude the following: (1) because the trial court properly sustained the constitutionality of sec. 813.12 On August 1, 1986, Thomas, by his counsel, Bohren, pursuant to sec. 813.12(3), Stats., petitioned for and obtained a temporary restraining order (TRO) against his wife, Sue, based on her alleged domestic abuse of him. That same day, May, a city of Milwaukee police officer, served on Sue the TRO and the notice of the injunction hearing. The order and notice set August 8 as the hearing date for the application for an injunction.

, we affirm as to the statute's constitutionality; (2) because the trial court improperly dismissed the assault and battery action against Thomas, we reverse and remand; and (3) because the remaining alleged claims constitute a collateral attack on the injunctive order of the family court commissioner; we reverse and remand with directions.

On August 8, both parties were present and represented by counsel. Joseph A. Greco, assistant family court commissioner, presided over the hearing. Commissioner Greco found that there were reasonable grounds to believe that Sue had engaged in or, based upon prior conduct, might engage in, domestic abuse of Thomas as defined in sec. 813.12(1)(a), Stats. He ordered that Sue (1) avoid the couple's residence; (2) avoid contacting or causing any person other than a party's attorney to contact Thomas unless he consents in writing; and (3) arrange visitation with their minor child, Stacy, through a mutually agreed-upon third party. The injunction was to remain in effect until August 8, 1988.

Sue sought circuit court review of Commissioner Greco's order. The petition for review also included a constitutional challenge to the domestic abuse statute's injunctive provisions. The court ruled that it was without jurisdiction to review the commissioner's decision to grant the injunction. Sue appealed that decision to this court. We reversed, declaring that the trial court did have jurisdiction, and remanded for consideration of Sue's petition for review. That review is still pending.

While Sue's appeal of the trial court's decision was pending in this court, she filed the present complaint now under review. The trial court, after hearing motions to dismiss, declared sec. 813.12, Stats., constitutional, and as a result granted the motions dismissing all of Sue's causes of action. She now appeals from that order.

We first address the constitutionality of sec. 813.12, Stats. Sue's constitutional challenge is multifaceted and consists of five parts: (1) inadequate notice of hearing and denial of a pre-TRO hearing; (2) denial of the right to a jury; (3) vagueness; (4) overbreadth; and (5) denial of equal protection.

In passing on the constitutionality of a statute, we recognize that there is a strong presumption that a legislative enactment is constitutional. State v. Cissell, 127 Wis.2d 205, 214, 378 N.W.2d 691, 695 (1985), cert. denied, 475 U.S. 1126, 106 S.Ct. 1651, 90 L.Ed.2d 194 (1986). The party advancing a constitutional challenge bears an awesome burden.

It is not enough that respondent establish doubt as to the act's constitutionality nor is it sufficient that respondent establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts.

State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792 (1973).

We first discuss the history and procedural methodology of sec. 813.12, Stats. In 1979, our legislature acknowledged that domestic abuse was a serious statewide social concern which necessitated a comprehensive and informed response. Sec. 1, ch. 111, Laws of 1979. It recognized the critical need for specialized assistance, not only to the victims of domestic abuse but also to the abusers. More resources had to be marshaled and new methods formulated to meet the challenge of this tragic social To trigger the protective provisions of sec. 813.12, Stats., an individual seeking help must file a petition alleging that the respondent engaged in domestic abuse as defined in the statute. See Sec. 813.12(1), (2) and (5)(a). Included within this definition is the intentional infliction of physical pain, physical injury or illness. Sec. 813.12(1)(a)1.

phenomenon. Id. As an additional means of alleviating the problem, the legislature enacted sec. 813.12, Stats. See sec. 19, 1983 Wis.Act 204.

A two-part procedure is set forth by the statutes. After the petition is served upon the respondent, the petitioner may request a TRO. Sec. 813.12(2m), Stats. The TRO shall be issued if the petitioner submits a petition alleging certain elements and a judge or a family court commissioner finds reasonable grounds to believe that the respondent has engaged in, or may engage in, domestic abuse of the petitioner. Sec. 813.12(3). This order can be issued without notice to the respondent. Sec. 813.12(3)(b).

The order, except under certain conditions delineated in sec. 813.12(3)(am), Stats., shall require the respondent to avoid the petitioner's residence and to avoid any direct or indirect contact with the petitioner, except through an attorney, unless the petitioner consents in writing. Sec. 813.12(3)(a). If the court issues a TRO, the order shall set forth the date for the injunction hearing. Sec. 813.12(2m). The TRO remains in effect until a hearing is held on the merits of the requested injunction. Sec. 813.12(3)(c). The hearing must be held within seven days after the TRO is issued, unless an extension is consented to by the parties, or upon a finding that the respondent was not served with a copy of the TRO despite due diligence by the petitioner. Id.

Section 813.12(4), Stats., concerns the issuance of an injunction. The judge or family court commissioner may grant an injunction, if the petitioner (1) files a petition alleging the elements set forth under 813.12(5)(a); (2) serves notice of the time for a hearing on the respondent; and (3) if, after a hearing, the judge or family court commissioner determines that there are reasonable grounds to believe that the respondent engaged in, or may engage in, domestic abuse of the petitioner. Sec. 813.12(4)(a)1-3. An injunction may be granted which orders the respondent to avoid the petitioner's residence, with certain exceptions, and any direct or indirect contact, except through an attorney, unless the petitioner consents to that contact in writing. Sec. 813.12(4)(a).


Sue's first challenge to the constitutionality of the statute rests on two assertions: inadequate notice of the injunction hearing and the nature of the charge, and no hearing prior to the issuance of the ex parte TRO. When the rights of a person are affected by judicial or quasi-judicial decree, adequate due process requires that the notice must reasonably convey information about the proceedings so that the respondent can prepare a defense or make objections. In re Estate of Fessler, 100 Wis.2d 437, 447, 302 N.W.2d 414, 419 (1981).

Section 813.12(5)(a), Stats., provides that the petitioner shall allege facts sufficient to show: (1) the name of the petitioner and that the petitioner is the alleged victim; (2) the name of the respondent and that the respondent is an adult; and (3) the respondent engaged in or, based upon prior conduct, may engage in domestic abuse of the petitioner. To issue a TRO, sec. 813.12(3)(a)1 and 2 requires the petitioner to assert sufficient facts and circumstances to permit a judge or family court commissioner to find reasonable grounds to believe that the respondent has engaged in or, based on...

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