COURT OF APPEALS

DECISION

DATED AND FILED

January 13, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP2235 Cir. Ct. No. 2019CV279

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

PETITIONER,

 PETITIONER-RESPONDENT,

 V.

DANIEL P. MCGINNIS,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Ozaukee County: 

PAUL V. MALLOY, Judge. Affirmed. 

Before Neubauer, C.J., Gundrum and Davis, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2019AP2235

2

¶1 PER CURIAM. Daniel P. McGinnis appeals from the circuit 

court’s harassment restraining order that prevents him from filing any lawsuit 

against the Petitioner without first seeking permission to do so from the presiding 

court.1 Because reasonable grounds exist to support the circuit court’s order, the 

court did not erroneously exercise its discretion when it issued the injunction. We 

affirm.

¶2 The following facts are a summary of the evidence presented at the 

injunction hearing underlying this appeal.

¶3 McGinnis sued the Petitioner for the first time in Broward County, 

Florida, seeking $2000 in forfeited bond that he had posted on her behalf.2 Both 

parties lived in Ozaukee County, Wisconsin, when the suit was filed. When asked 

why he sued the Petitioner in Florida, McGinnis answered that he “couldn’t 

possibly see how a Wisconsin court was going to interpret a bail bondsman 

contract” if Wisconsin does not use bail bondsmen.

¶4 The following year McGinnis sued the Petitioner six more times in 

the span of four months. Both parties still lived in Ozaukee County. The second 

lawsuit sought $5000 in Ozaukee County for “false arrest,” the third case sought 

$5000 in Waukesha County for false accusations the Petitioner had made against 

 

1

 We decline to print the Petitioner’s name because this case arises from a petition for a 

harassment injunction. See WIS. STAT. § 813.125 (2017-18). We note, however, that she is 

McGinnis’s former girlfriend and the mother of his child.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

2

 The case settled for $2100, and the Petitioner has “consistently” made settlement 

payments to McGinnis.
No. 2019AP2235

3

him, and the fourth lawsuit sought $712 in Jefferson County for a plane ticket 

from Milwaukee to Florida. The court ordered McGinnis to transfer the planeticket case from Jefferson to Ozaukee County—the county both parties share. 

McGinnis ignored this order. Instead, he refiled the entire plane-ticket case in 

Dade County, Florida, while leaving the Wisconsin case open.3 As refiled in 

Florida, the fifth lawsuit alleged the identical facts and sought the same $712 

damages from the Petitioner as its Wisconsin counterpart but was nonetheless a 

separate case. McGinnis then proceeded to sue the Petitioner a sixth time in 

Hennepin County, Minnesota, for $3640 of credit card charges that the Petitioner 

had “agreed to repay” years earlier, and he sued her for the seventh time in 

Muskegon, Michigan, seeking repayment of $500 in travel expenses. The 

Petitioner had never been to Michigan.

¶5 The Petitioner applied for a restraining order. She alleged that 

McGinnis was “engaging in a non-legitimate course of conduct” by “repeatedly 

committing acts which harass and threaten the petitioner.”4In a subsequent 

hearing, McGinnis appeared as the sole witness to testify to the basis for each 

 

3

 McGinnis testified that he was not present when the Jefferson County circuit court 

ordered the case transferred to Ozaukee County. Instead, according to McGinnis, his attorney 

incorrectly told him that the Jefferson County case was closed. McGinnis testified, “Had I been 

there in court and known, the case never would have been refiled in Florida.” The circuit court 

took judicial notice of the Jefferson County court’s order to transfer the case without objection. 

We therefore impute McGinnis with the knowledge that his Wisconsin case remained open. See 

WIS. STAT. § 902.01(2)(b).

4

 We note that there was an attachment to the petition signed by the Petitioner’s attorney 

alleging, among other things, that McGinnis “filed civil suits with the same or similar intents, 

results and victims as [his] suits against [the Petitioner], against seven other” women and that he 

paid the filing fee for a Waukesha County suit against the Petitioner “with a check drawn on a 

closed account.” Unfortunately, the details supporting these and several other allegations were 

not provided at the injunction hearing and the circuit court made no findings regarding these 

allegations; therefore, we do not consider them on appeal.
No. 2019AP2235

4

lawsuit.5 McGinnis never explained why he filed the seven lawsuits across 

Florida, Minnesota, or Michigan when both parties lived in Ozaukee County, 

Wisconsin, apart from his single statement about bail bondsmen.

¶6 McGinnis testified at the injunction hearing that there were no other 

lawsuits pending against the Petitioner. This was false.6 The day after the court 

ordered the injunction, the Petitioner was served with two more summons and 

complaints for an eighth lawsuit McGinnis filed in Muskegon, Michigan, and a 

ninth lawsuit in Ludington, Michigan. Like the Dade County case, these two new 

Michigan cases were repeats; they alleged identical facts and sought similar 

damages as the previous lawsuit that McGinnis had filed in Michigan even though 

they were two separate, additional cases.

¶7 The circuit court granted the Petitioner’s restraining order. The 

court ordered that McGinnis “may not file any lawsuit against [the Petitioner] until 

he has received approval for the filing from the judge assigned to preside over the 

litigation.” As the court made clear, “[t]hat way you can file lawsuits, but you 

have to get approval first.” McGinnis appeals.

 

5

 As to the merits of these nine lawsuits, McGinnis’s testimony indicated that “at no 

time, did a court find his lawsuits as being frivolous or lacking legal merit.” The Petitioner did 

not respond to this claim in her brief. Thus, we assume, without deciding, that these lawsuits are 

not frivolous on the merits. See State ex rel. Zignego v. Wisconsin Elections Comm’n, 2020 WI 

App 17, ¶27, 391 Wis. 2d 441, 941 N.W.2d 284. However, we note that filing multiple lawsuits 

on the same facts and seeking the same damages is frivolous. So, too, is presenting a claim for an 

improper purpose, such as to harass the opposing party. See WIS. STAT. § 802.05(2)(a), (4)(b)1.

(codifying that a filing is frivolous if it violates the party’s representation to the court that “[t]he 

paper is not being presented for any improper purpose, such as to harass or to cause unnecessary 

delay or needless increase in the cost of litigation”).

6

 There was no confusion about this point. The circuit court went over McGinnis’s 

various court filings against the Petitioner several times, and McGinnis testified, unequivocally, 

that he had discussed with the court every case he had filed against the Petitioner and that there 

were no additional cases pending.
No. 2019AP2235

5

¶8 Although the decision to grant an injunction is within the circuit 

court’s discretion, in order to do so the court must find “reasonable grounds to 

believe that the respondent has engaged in harassment with intent to harass or 

intimidate the petitioner.” Board of Regents-UW Sys. v. Decker, 2014 WI 68, 

¶35, 355 Wis. 2d 800, 850 N.W.2d 112 (quoting WIS. STAT. § 813.125(4)(a)3.). 

“We independently review the circuit court’s conclusion, based on the established 

facts, whether such reasonable grounds exist.” Welytok v. Ziolkowski, 2008 WI 

App 67, ¶23, 312 Wis. 2d 435, 752 N.W.2d 359 (citing M.Q. v. Z.Q., 152 Wis. 2d 

701, 708, 449 N.W.2d 75 (Ct. App. 1989)). This presents a mixed question of fact 

and law. M.Q., 152 Wis. 2d at 708. We affirm the lower court’s factual findings 

unless they are clearly erroneous. WIS. STAT. § 805.17(2). But “the application of 

a statute to specific facts are questions of law that we review de novo.” Garcia v. 

Mazda Motor of Am., Inc., 2004 WI 93, ¶7, 273 Wis. 2d 612, 682 N.W.2d 365. 

¶9 McGinnis argues that the circuit court did not have authority to enter 

this order because “a violation of WIS. STAT. § 813.125 may not rest on conduct 

that serves a legitimate purpose.” McGinnis contends that his nine underlying 

lawsuits were meritorious and thus could not constitute harassment. 

¶10 “Harassment” is “[e]ngaging in a course of conduct or repeatedly 

committing acts which harass or intimidate another person and which serve no 

legitimate purpose.” WIS. STAT. § 813.125(1)(am)2. Conduct with a harassing or 

illegitimate purpose remains harassment even if it is accompanied by an 

additional, legitimate purpose. Decker, 355 Wis. 2d 800, ¶38. This is so because 

“intentionally harassing conduct can never serve a legitimate purpose.” Id. (citing 

Bachowski v. Salamone, 139 Wis. 2d 397, 408, 407 N.W.2d 533 (1987)). 

“[I]ntent to harass” is a question of fact “inferred from the acts and statements of 
No. 2019AP2235

6

the person, in view of the surrounding circumstances.” Welytok, 312 Wis. 2d 435, 

¶¶25-26 (citation omitted). 

¶11 Reviewing the circumstances presented here, we conclude that the 

court did not erroneously exercise its discretion in ordering this injunction because 

it properly weighed McGinnis’s conduct and drew appropriate inferences about 

McGinnis’s intent. McGinnis could have chosen to file all of the lawsuits in one 

place, such as the county that both parties shared, but he instead chose to file them 

across four different states. These various venues include a state where the 

Petitioner had never been. Similarly, McGinnis chose not to consolidate the 

lawsuits and instead filed each individually one after the other. Nor could 

McGinnis provide any reason why he chose to sue the Petitioner in states where 

neither of them lived and where the Petitioner had never set foot, or his decision 

not to consolidate his cases.7 Moreover, three of the lawsuits were repetitive, 

setting forth identical facts as their bases. The trial court could reasonably 

conclude that requiring responses to multiple lawsuits filed one after another in 

inappropriate venues was intended to harass, intimidate, and impose an undue 

burden on the Petitioner.

¶12 Decker is instructive here. In that case, a student caused persistent 

disruptions at university meetings after being prohibited from entering university 

property while he was suspended. Decker, 355 Wis. 2d 800, ¶40. The record 

established that the student also swore at and threatened a university chancellor in 

 

7

 McGinnis’s excuse that Wisconsin courts cannot interpret another state’s contract is 

without merit, as this practice dates back to the nineteenth century. Osborn v. Blackburn, 78 

Wis. 209, 210, 47 N.W. 175 (1890) (“There are many cases where the courts are bound to decide 

upon contracts according to the laws of other states ....”).
No. 2019AP2235

7

a meeting, stabbed the chancellor’s documents with a pen during a heated 

argument, and attempted to purchase a handgun immediately after police tried to 

serve him with a restraining order. Id. Decker maintained that his conduct had 

the legitimate purpose of protesting student fees and that WIS. STAT. § 813.125 

provides that conduct rises to the level of “harassment” only if it “serves ‘no

legitimate purpose.’” Decker, 355 Wis. 2d 800, ¶37 (emphasis added). Decker 

argued that his conduct was motivated by his desire to protest fees, and a

harassment injunction could not impinge on his First Amendment free speech 

rights. Id., ¶¶37, 43. The circuit court rejected Decker’s position and the supreme 

court upheld the circuit court’s decision, explaining that Decker’s free speech 

rights were not absolute, and as such, his right to protest on UW property could be 

restricted, if the “purpose was even in part to harass,” thereby making an 

injunction appropriate. Id., ¶¶38, 45.

¶13 Applying Decker to the situation here, we conclude that the circuit 

court properly enjoined McGinnis from engaging in future litigation that is used, 

even in part, to harass the Petitioner. In addition to the evidence presented at the 

injunction hearing, the circuit court relied upon its own dealings with McGinnis in 

previous cases and his prior reprimands.8 These facts taken together support the 

court’s finding that McGinnis intended the myriad lawsuits against the Petitioner 

to harass or intimidate her, at least on some level. McGinnis “cannot shield his 

harassing conduct from regulation by labeling it” as serving a legitimate purpose.

 

8

 In 2016, McGinnis defended a paternity suit brought by the Petitioner for custody and 

child support. He filed so many motions pro se, despite being represented by counsel throughout, 

that the court ordered McGinnis to file an affidavit swearing, “I am aware of the prohibition for 

me to have any direct or indirect communications with any court official, or any court staff 

pertaining to my case as long as I am represented by counsel. This includes filing any motions or 

pleadings on my own, which I am aware I am not allowed to do.”
No. 2019AP2235

8

See id., ¶38. Under Decker, any additional, legitimate purpose underlying the nine 

lawsuits cannot rectify harassing conduct. See id. (if conduct was used even in 

part to harass, it can be enjoined despite having a coinciding legitimate purpose). 

¶14 McGinnis also asserts that this order is unduly broad in violation of 

his constitutional rights. He argues that this order violates his right to access 

courts because he can no longer file “any lawsuit against Petitioner-Respondent no 

matter how legitimate his claim may be.” Finally, McGinnis contends that this 

order’s prior approval requirement unconstitutionally denies him procedural due 

process by unduly restricting his notice and opportunity to be heard. We disagree.

¶15 Like issuing an injunction at all, the scope of an injunction is also 

“within the sound discretion of the trial court.” Welytok, 312 Wis. 2d 435, ¶¶23-

24. “We may not overturn a discretionary determination that is demonstrably 

made and based upon the facts of record and the appropriate and applicable law.” 

Id., ¶24. However, “[i]njunctions ... must be specific as to the prohibited acts and 

conduct in order for the person being enjoined to know what conduct must be 

avoided.” Id. A court order limiting the right to sue is constitutional if it is 

narrowly constructed to properly balance the drain on taxpayer resources against 

the individual’s right to sue. Minniecheske v. Griesbach, 161 Wis. 2d 743, 749, 

468 N.W.2d 760 (Ct. App. 1991).

¶16 We conclude that the injunction requiring McGinnis to seek leave to 

sue the Petitioner is sufficiently narrow to withstand constitutional scrutiny. The 

right to access the courts “is neither absolute or unconditional.” Village of 

Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 

1997). “We think this is particularly true where a litigant has been found to 

commence litigation for the purpose of harassment.” Puchner v. Hepperla, 2001 
No. 2019AP2235

9

WI App 50, ¶8, 241 Wis. 2d 545, 625 N.W.2d 609; see also State v. Casteel, 2001 

WI App 188, ¶26, 247 Wis. 2d 451, 634 N.W.2d 338 (A “threshold review of the 

merits is a sensible and constitutional means of dealing with a litigant intent on 

pressing frivolous litigation.”) (citing In re Davis, 878 F.2d 211, 212-13 (7th Cir. 

1989)).

¶17 Requiring McGinnis to seek permission before suing the Petitioner is 

precisely the type of “threshold review” this court permits. See Casteel, 247 

Wis. 2d 451, ¶¶25-26 (upholding a filing restriction that required, among other 

things, a pre-appeal statement enumerating specific grounds for relief in order to 

curb “repetitively litigating the same matters”). The restriction here is narrowly 

tailored to the abuse because it does not prevent McGinnis from filing any and all 

claims; instead, the limited threshold review shifts the burden onto him to first 

show that any prospective litigation is properly filed in an appropriate venue, is 

not repetitive, and is not begun for the purpose of harassment. The circuit court 

specifically noted that McGinnis can still file his lawsuits so long as they are part 

of a legitimate course of conduct. This injunction properly achieves that goal.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.