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Rule prohibiting collateral attacks on prior judicial orders applies to administrative orders

State v. Vernon D. Hershberger, 2014 WI App 86; case activity

As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.

Hershberger, a dairy farmer, was subject to a DATCP “holding order” issued under § 97.12(2)(a) that prohibited him from selling or moving the dairy and meat products listed in the order “without written permission during the duration of [the] holding order.” After Hershberger violated the holding order he was charged with the criminal offense of violating the holding order, § 97.12(2)(d)1. Hershberger sought to introduce evidence that there was no factual basis for the holding order. The circuit court viewed this as a collateral attack on the order and so excluded the evidence as irrelevant. (¶¶2-3, 17-19).

The court of appeals first rejects Hershberger’s arguments that the collateral attack rule is limited to judicial judgments or orders, citing persuasive authority that the rule should also apply to administrative orders. (¶¶14-16, 23-25). There are, however, exceptions to collateral attack prohibition for orders that: are void because the issuing court or agency lacked jurisdiction; were obtained by fraud; or could not be reviewed in some meaningful review process. (¶¶8-13, 15-16). The court rejects Hershberger’s arguments that his factual basis challenge was a claim that the holding order was void (¶27) and that he didn’t have an opportunity for meaningful review of the holding order (¶¶28-38). Therefore, the circuit court properly excluded evidence about the factual basis for the holding order.

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