                                                                     2016 WI 22

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:               2014AP1283
COMPLETE TITLE:         In re the marriage of:      Nancy M. Meister and
                        Jay E. Meister:

                        S. A. M., A. L. M., O. M. M. and J. E. M.,
                        minors, by their guardian ad litem, Jennifer
                        Weber,
                                  Appellants-Petitioners,
                             v.
                        Nancy M. Meister,
                                  Respondent.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 361 Wis. 2d 286, 862 N.W.2d 619)
                                   (Ct. App. 2015 – Unpublished)

OPINION FILED:          April 7, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 6, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Jefferson
   JUDGE:               William F. Hue

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs
                        ZIEGLER, J., joined by GABLEMAN, J. concur
  DISSENTED:
  NOT PARTICIPATING:    BRADLEY, R. G., J. did not participate

ATTORNEYS:
       For      the    appellants-petitioners,       there    were     briefs    by
Jennifer Weber and Zick & Weber Law Offices, LLP, Johnson Creek,
and oral argument by Jennifer Weber.




       For the respondent, there was a brief by Andrew R. Griggs,
Neuberger,          Griggs,   Sweet   &   Smith,   LLP,   Watertown,    and     oral
argument by Andrew R. Griggs.
                                                                        2016 WI 22
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.   2014AP1283
(L.C. No.    2011FA335)

STATE OF WISCONSIN                            :            IN SUPREME COURT

In re the marriage of:         Nancy M. Meister and
Jay E. Meister:



S.A.M., A.L.M., O.M.M. and J.E.M., minors, by
their guardian ad litem, Jennifer Weber,                              FILED
             Appellants-Petitioners,                             APR 7, 2016
      v.                                                           Diane M. Fremgen
                                                                Clerk of Supreme Court
Nancy M. Meister,

             Respondent.




      REVIEW of a decision of the Court of Appeals.                Reversed.


      ¶1     DAVID    T.     PROSSER,   J.   This     is    a    review      of     an

unpublished decision of the court of appeals affirming a circuit

court      order   denying    a   grandmother's     motion      for     visitation

rights.1

      1
       S.A.M. v. Meister, No. 2014AP1283, unpublished slip op.
(Wis. Ct. App. Feb. 5, 2015).
                                                                        No.      2014AP1283



       ¶2     The     case   requires          us    to   interpret           Wis.    Stat.

§ 767.43(1)         (2013-14),2    which       allows     certain           categories   of

individuals to petition for the right to visit children——usually

following the dissolution of a marriage.                    Under the statute, a

"grandparent,        greatgrandparent,         stepparent      or       person    who    has

maintained a relationship similar to a parent-child relationship

with the child" may file a motion for visitation rights.                                 We

must        determine     whether        the        "parent-child            relationship"

requirement applies only to the "person" category listed in the

statute,        or      whether     it     applies        to        a        "grandparent,

greatgrandparent, [and] stepparent" as well.

       ¶3     The case arose after Carol Meister filed a motion for

the right to visit her four grandchildren in the wake of her son

Jay    Meister's      divorce     from   Nancy       Meister.3          A    family   court

commissioner for the Jefferson County Circuit Court initially

granted the motion, but the circuit court denied the motion on

de novo review.           Reading Wis. Stat. § 767.43(1) as requiring

every petitioner under this subsection to demonstrate a parent-
child relationship with the child, the circuit court concluded

that Carol's supportive relationship with the children did not

elevate her to a parent-like role in their lives.




       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
       3
       Given that Carol, Jay, and Nancy share a surname, we will
refer to them by first name throughout the opinion.


                                           2
                                                                                    No.       2014AP1283



       ¶4        The       Meister      children         appealed,            and     the    court       of

appeals affirmed, citing its decision in Rogers v. Rogers, 2007

WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, as controlling.                                              In

Rogers, the court of appeals stated that grandparents filing a

motion under Wis. Stat. § 767.43(1) must prove "a parent-like

relationship"              with   the      child       in       order    to    secure       visitation

rights.       Rogers, 300 Wis. 2d 532, ¶11.

       ¶5        Before this court, the Meister children argue that the

court       of    appeals         misinterpreted                Wis.    Stat.       § 767.43(1)          in

Rogers.           They      assert      that     the    phrase          "who    has     maintained        a

relationship           similar       to    a    parent-child            relationship         with     the

child"       applies         only    to    a     person         other     than      a     grandparent,

greatgrandparent, or stepparent filing a motion for visitation

under       the       subsection.               Nancy       counters           that       reading    the

subsection            to     allow   courts        to       grant       visitation          rights       to

grandparents, greatgrandparents, and stepparents based solely on

a best interest of the child determination would intrude on

parents'         fundamental         due       process      rights       to     direct      the     care,
custody, and control of their children.

       ¶6        We    conclude         that     Wis.       Stat.        § 767.43(1)         does     not

require a grandparent, greatgrandparent, or stepparent who files

a motion for visitation rights under this subsection to prove

that    he       or    she    "has    maintained            a    relationship           similar     to    a

parent-child relationship with the child."                                    Rather, the parent-

child relationship element applies only to a "person" seeking

visitation rights who is not a grandparent, greatgrandparent, or
stepparent.                Additionally, we conclude that the legislature's
                                                   3
                                                                          No.         2014AP1283



decision       to    allow     courts       to        grant    visitation           rights      to

grandparents, greatgrandparents, and stepparents when visitation

is in the best interest of the child does not unconstitutionally

infringe      on    parents'    constitutional               rights    because       any      best

interest      determination          must       give       special     weight       to    a    fit

parent's       decisions       regarding             the     child's     best        interest.

Consequently, the decision of the court of appeals is reversed.

              I.    FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶7     Nancy and Jay Meister married in February 2002.                                 They

were    divorced      in    Jefferson       County         Circuit     Court    in       February

2013.       Nancy and Jay are parents of four minor children: S.A.M.,

A.L.M., O.M.M., and J.E.M.

       ¶8     By      the     terms        of        their    divorce         judgment         and

incorporated marital settlement agreement, Nancy and Jay agreed

to   joint     legal       custody    of    their          children.      Nancy          received

impasse-breaking authority and primary physical placement, while

Jay received regular weekday and weekend placement.                             In addition

to   the     weekly    plan,    Nancy       and        Jay    agreed    to     an    extensive
placement       schedule       for      holidays,            special     occasions,             and

vacations.          The     agreement           included      an     approximately            equal

division of major holidays between Nancy and Jay each year;

Nancy and Jay switch between various holidays in even and odd

years.       The plan also guaranteed a week of exclusive time with

the children for each parent during the summer.

       ¶9     In    July     2013     the       children's         paternal     grandmother,

Carol Meister, filed a motion asking that the court establish
visitation rights for her under Wis. Stat. § 767.43(1) on the
                                                 4
                                                                      No.      2014AP1283



basis of her grandparent relationship with the children.                                  Her

motion    indicated     that     she    decided      to     file    the     petition      in

response      to    changes    Nancy      had       made     to     Carol's     informal

visitation with them.4            Carol sought six visits per year, the

right    to   arrange    visits    with      Jay    and     Nancy    using    an    online

family scheduling portal, and the right to regular phone calls

with the children.

     ¶10      After holding a hearing on the motion, a family court

commissioner5 issued an order in November 2013 granting Carol's

motion     for     visitation.         The       commissioner       read     Wis.    Stat.

§ 767.43(1)        as   "requir[ing]         that     the     grandparent          have    a

relationship similar to a parent-child relationship" in order to

secure visitation rights.              However, the commissioner found that

a relationship similar to a parent-child relationship existed

between Carol and her grandchildren, and he granted Carol one

week of placement at her home in Ohio each summer, four three-

day placements in Wisconsin throughout the year, and access to

the online portal to arrange her visits with Nancy and Jay.6

     4
       For example, after filing her July 2013 motion for
visitation rights, Carol wrote an October 2013 letter to the
family court commissioner alleging that Nancy objected to
Carol's presence at the children's elementary school when Carol
attempted to see the children at a September 2013 event that was
open to the public.
     5
         Michael D. Onheiber, Family Court Commissioner.
     6
       The family court commissioner's order granting Carol's
motion    used   the   terms   "placement"   and   "visitation"
interchangeably. Recent decisions by the court of appeals have
examined the extent to which the Wisconsin Statutes contemplate
a consequential difference between placement and visitation.
                                                    (continued)
                                             5
                                                                          No.           2014AP1283



      ¶11    Pursuant to Wis. Stat. § 767.17, Nancy requested that

the circuit court review the commissioner's order.                                  On review,

the   circuit      court7      conducted     a       hearing     to   expand        the   record

regarding Carol's relationship with her grandchildren.                                      Carol

traveled     from       Ohio    to    Wisconsin        to   testify      at    the      hearing.

Appearing        without       an    attorney,        she   engaged      in        an   extended

conversation with the circuit court regarding her relationship

with the children.

      ¶12    Over the course of her testimony, Carol described the

supportive role she played in her grandchildren's lives.                                      She

began by explaining how, drawing on her own experience as a

teacher, she tutored them in various subjects during a vacation

to Florida in 2012 and during the children's spring break in

2013.       As    she    continued,        she       mentioned    that    she       frequently

purchased food and clothing for them when they visited her in

Ohio and when she visited them in Wisconsin.                                  She emphasized

that, even when she was physically distant from the children,

she played an important consultative role for them and for their
father,     helping        the       children        with   homework          by    phone     and

providing        Jay    with     general    parenting          advice.         The      children



See Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780
N.W.2d 159; Lubinski v. Lubinski, 2008 WI App 151, 314
Wis. 2d 395, 761 N.W.2d 676.   Because the parties in this case
have not argued that the order improperly differentiated between
placement and visitation, this opinion makes no comment on the
extent of any difference between the two.
      7
          William F. Hue, Judge.


                                                 6
                                                                          No.      2014AP1283



called her "frequently, almost daily sometimes," when staying

with their father.

       ¶13    Given    that      Carol     appeared         pro     se     and    that    the

children's guardian ad litem——who supported the commissioner's

order——was     unable     to     attend       the    hearing,       the       circuit    court

helped to guide Carol's testimony by asking multiple questions

about   whether       Carol     had    ever    lived      with    the     children.       The

questions focused on determining whether Carol's was the type of

case    in    which    "the     parents       [had] . . . relinquish[ed]                 their

parental duties to the grandparent for some prolonged period of

time and . . . the grandparent then [was] acting as the parent."

After   hearing       Carol's       testimony,      the    circuit        court    expressed

concern about taking the "extraordinary step" of concluding that

a parent-child relationship sufficient for visitation existed

where a grandmother had such a "staggered" relationship with the

grandchildren.           But,       reluctant       to    reverse       the     commissioner

without hearing from an attorney advocating in favor of Carol's

visitation     motion,        the     circuit     court     decided       to     schedule   a
second hearing so that the children's guardian ad litem could

attend.

       ¶14    At the second hearing in January 2014, the guardian ad

litem argued that, although Carol may not be a primary parent,

she nevertheless had a relationship with the children similar to

that of a parent who lived out of state.                          Arguing that "[t]he

statute does not require [Carol] to elevate to the status of

primary parent," the guardian ad litem observed that "if Mr.
Meister      relocated    to     the     State      of    Ohio    and     had     that   same
                                              7
                                                                   No.     2014AP1283



relationship that his mother [had] . . . with the children, he's

still a parent."

      ¶15   After    taking   the         matter    under    consideration,       the

circuit court issued a May 2014 order denying Carol's motion.

An   accompanying    memorandum      decision       explained      that   the    court

concluded that Carol was "ineligible for an award of grandparent

visitation" because she "did not have a relationship similar to

a parent-child relationship" with her grandchildren.

      ¶16   The children, by their guardian ad litem, appealed the

circuit court's denial of their grandmother's motion.8                          Before

the court of appeals, the children argued that "the circuit

court applied the wrong legal standard when it required that the

grandmother,    in   order    to     be    eligible    to    receive      visitation

rights, show that she had a relationship similar to a parent-

child     relationship   with      them."           S.A.M.    v.     Meister,     No.

2014AP1283, unpublished slip op., ¶12 (Wis. Ct. App. Feb. 5,

2015).

      ¶17   Relying on its previous interpretation of Wis. Stat.
§ 767.43(1)     in   Rogers     v.        Rogers,    2007    WI     App    50,     300

      8
       As noted above, Carol Meister filed the motion for
visitation under Wis. Stat. § 767.43(1). She acted pro se. The
grandchildren were represented on the motion by the guardian ad
litem who had represented them from the beginning of the
divorce.   When Nancy Meister sought de novo review in circuit
court and prevailed, the guardian ad litem appealed to the court
of appeals on behalf of the children.      The guardian ad litem
also sought review in this court on their behalf.

     Standing has not been an issue in this case, and we do not
see any prudential reason to make it an issue in this opinion.


                                           8
                                                                     No.       2014AP1283



Wis. 2d 532, 731 N.W.2d 347, the court of appeals disagreed with

the children.         Meister, unpublished slip op., ¶15.                   In Rogers,

the   court    of    appeals       stated   that    Wis.     Stat.    § 767.245     (now

§ 767.43(1)9) requires, among other things, that "grandparents

must have a parent-like relationship with the child" in order to

qualify for visitation rights.                  Rogers, 300 Wis. 2d 532, ¶11.

The court of appeals in the present case treated that language

from Rogers         as "a clear declaration that               any person       seeking

visitation rights under Wis. Stat. § 767.43(1) must first show

that he or she has a relationship similar to a parent-child

relationship in order to establish that he or she is eligible to

receive visitation rights."             Meister, unpublished slip op., ¶15

(emphasis added).            "[B]ound by that declaration" from Rogers,

id. (citing Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246

(1997)),      the    court    of    appeals     affirmed     the     circuit    court's

conclusion that Carol had not demonstrated that she maintained a

relationship        with     the    children       similar    to     a     parent-child

relationship, id., ¶¶21-22.
      ¶18     The court of appeals issued its decision on February

5, 2015.      Shortly afterward, on February 25, 2015, Carol passed




      9
       Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731
N.W.2d 347, refers to Wis. Stat. § 767.245, the statute in
effect at the time the visitation petition was filed. In 2006
the legislature renumbered Wis. Stat. § 767.245 as Wis. Stat.
§ 767.43. 2005 Wis. Act. 443, § 101.


                                            9
                                                        No.     2014AP1283



away.10    The children filed a petition for review on March 2,

2015, which we granted on June 12, 2015.

                         II.   STANDARD OF REVIEW

     ¶19   This   case    requires    us   to   interpret     Wisconsin's

grandparent    visitation      statute.    "The     interpretation    and

application of a statute are questions of law that we review


     10
       After the court became aware of Carol's passing, we
ordered the parties to submit briefs addressing whether the case
should proceed despite Carol's death.    "Ordinarily, this court,
like courts in general, will not consider a question the answer
to which cannot have any practical effect upon an existing
controversy." State ex rel. La Crosse Tribune v. Circuit Court
for La Crosse Cty., 115 Wis. 2d 220, 228, 340 N.W.2d 460 (1983).

     Both Nancy and the Meister children argue that this case
qualifies for an exception to the general mootness rule.   We
agree.   This court may decide an otherwise moot issue if the
issue

          (1) is of great public importance; (2) occurs so
     frequently that a definitive decision is necessary to
     guide circuit courts; (3) is likely to arise again and
     a decision of the court would alleviate uncertainty;
     or (4) will likely be repeated, but evades appellate
     review because the appellate review process cannot be
     completed or even undertaken in time to have a
     practical effect on the parties.

State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674
N.W.2d 349; see also La Crosse Tribune, 115 Wis. 2d at 229.
Because the interpretation of Wis. Stat. § 767.43(1) applies to
every visitation petition by a grandparent, greatgrandparent, or
stepparent under this subsection, we conclude that this case
presents a question of great public importance that will occur
frequently in the future.    Given the disjuncture between the
plain language of § 767.43(1) and the Rogers court's treatment
of that language, a decision from this court resolves any
uncertainty as to this particular facet of the statute's
interpretation.


                                     10
                                                                                 No.       2014AP1283



independently, 'but benefiting from the analyses of the court of

appeals and the circuit court.'"                           Richards v. Badger Mut. Ins.

Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581 (quoting

Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159,

¶19, 286 Wis. 2d 252, 706 N.W.2d 110).

                                        III.    DISCUSSION

                   A.    Interpreting Wis. Stat. § 767.43(1)

      ¶20    We    begin          our    analysis          by    interpreting           Wis.     Stat.

§ 767.43(1).                  When      interpreting              statutes,            this      court

consistently begins with the statutory language.                                   State ex rel.

Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110.                        "Statutory language is given its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special definitional meaning."                      Id.

      ¶21    "Context is important to meaning.                                 So, too, is the

structure     of        the       statute      in        which    the     operative           language

appears."         Id.,        ¶46.       Consequently,            "statutory           language     is
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.        "It is certainly

not inconsistent with the plain-meaning rule to consider the

intrinsic context in which statutory language is used; a plain-

meaning     interpretation               cannot           contravene         a     textually        or

contextually manifest statutory purpose."                               Id., ¶49.          A review
of    the   statutory             history——meaning               "previously           enacted     and
                                                    11
                                                                           No.        2014AP1283



repealed statutory provisions"——also can play a helpful role in

the contextual analysis of a statute's language.                            Id., ¶52 n.9.

Analysis     of    unambiguous       statutory      text    does   not           require      the

court   to    resort     to        extrinsic      sources   of     meaning             such   as

legislative history, "although legislative history is sometimes

consulted to confirm or verify a plain-meaning interpretation."

Id., ¶51.

    ¶22      Applying    this        interpretive       methodology,             we    conclude

that the phrase "who has maintained a relationship similar to a

parent-child relationship with the child" applies only to an

otherwise undefined "person" who petitions for visitation rights

under   Wis.        Stat.      § 767.43(1),          not     to        a         grandparent,

greatgrandparent,             or          stepparent.              A             grandparent,

greatgrandparent, or stepparent need not prove a parent-child

relationship to succeed on a petition for visitation.                                  By this

we mean that "maintain[ing] a relationship similar to a parent-

child relationship with the child" is not the sine qua non of a

visitation        petition    by      a    grandparent,      greatgrandparent,                 or
stepparent under § 767.43(1).                 It is, however, the sine qua non

for a petitioner who is not a grandparent, greatgrandparent, or

stepparent under § 767.43(1).

    ¶23      We    acknowledge        that     subsection (1)          is        not     wholly

unambiguous.        In other words, reasonable people have read it in

different     ways.           Nonetheless,         we    confidently              reach       the

conclusion stated above after reviewing the arguments pro and

con, carefully examining the language of Wis. Stat. § 767.43(1),
and then reviewing that language in context with surrounding
                                             12
                                                           No.      2014AP1283



language and with the statute's history.          A brief review of the

statute's legislative history confirms our interpretation.

    ¶24   In   its   current   form,    the   relevant    portion   of   Wis.

Stat. § 767.43(1) reads as follows:

    [U]pon petition by a grandparent, greatgrandparent,
    stepparent or person who has maintained a relationship
    similar to a parent-child relationship with the child,
    the court may grant reasonable visitation rights to
    that person if the parents have notice of the hearing
    and if the court determines that visitation is in the
    best interest of the child.11
    ¶25   The Meister children argue that the court of appeals

incorrectly    applied   § 767.43(1)    in    Rogers,    300   Wis. 2d 532,.

When discussing the grandparent visitation statute in Rogers,

the court of appeals made the following declaration:

         The grandparents correctly state that Wis. Stat.
    § 767.245 requires that three conditions must be
    satisfied before a circuit court may grant visitation:
    (1) the   grandparents   must   have   a   parent-like
    relationship with the child, (2) the parents must have
    notice of the hearing, and (3) the court must
    determine that grandparent visitation is in the
    child's best interest.
Rogers, 300 Wis. 2d 532, ¶11.          The court did not support this

statement with an exercise of formal statutory interpretation.

It simply agreed with the grandparents in the case, whom the


    11
       Subsection (1)'s use of the phrase "that person" to refer
back to any person who files a visitation motion under Wis.
Stat.   § 767.43(1)  contributes   to   the  ambiguity  of   the
subsection. However, we view use of that phrase as unfortunate
drafting rather than an indication of legislative intent because
of the plethora of other writings by drafters that reveal and
explain the language of the subsection.


                                   13
                                                                      No.     2014AP1283



circuit court found to have had a parent-like relationship with

the grandchildren.12           Elsewhere in the opinion, the court of

appeals    cited    Holtzman      v.    Knott,    193    Wis. 2d 649,        658,    533

N.W.2d 419 (1995), which used the same language in a visitation

case that did not apply that statute.

     ¶26    Implicitly,        under     Rogers,        any        person——whether     a

grandparent, greatgrandparent, stepparent, or person having a

different relationship with the child——must prove the existence

of a parent-like relationship with the child in order to secure

visitation   rights       under   Wis.    Stat.    § 767.43(1).             This   would

likely    place    an    extremely      heavy    burden       on    grandparents     who

reside any significant distance from the children.                            It would

disqualify    grandparents        who    because        of    geography      or    other

factors     have        been   prevented         from        developing      a     close

relationship.

     ¶27    According to the Meister children, the phrase "who has

maintained a relationship similar to a parent-child relationship

with the child" should apply only to a "person" other than a

     12
       The grandparents' brief in Rogers made a similar
statement of the law without providing additional explanation:

          Section 767.245(1), Wisconsin Statutes, provides
     that a grandparent, among others, can petition the
     court for visitation rights where that grandparent has
     maintained a relationship similar to a parent-child
     relationship and the court may grant reasonable
     visitation rights to that person if the parents have
     notice of the hearing and if the court determines that
     the visitation was in the best interests of the child.




                                          14
                                                                        No.       2014AP1283



grandparent, greatgrandparent, or stepparent seeking visitation

rights    under     Wis.   Stat.       § 767.43(1).           They      argue    in   their

principal brief that "what the statute seems to ask for is that

persons     who   are    not    grandparents          or   stepparents        prove   up   a

relationship       similar      to    the     one    grandparents       and   stepparents

already enjoy by virtue of their biological or legal connection

to the child."          To evaluate the Meister children's challenge to

the   Rogers       court's       language,          we     conduct      an    independent

assessment of § 767.43(1).

      ¶28    The Meister children's focus on relationships has an

intuitive     appeal.           Wisconsin          Stat.   § 767.43(1)        applies      to

grandparents of a child of a married or formerly married couple.

This means that these grandparents and greatgrandparents have a

direct    family    tie    to    one     of    the    parents      of   the     child.     A

stepparent, under this subsection, is or was married to one of

the parents of the child.                     On the other hand, the "person"

category    is    undefined      so     that    it    is    hard   to    anticipate      the

nature of the relationship that the "person" has to the child.
The "person" could be a sister or brother, but it could also be

an aunt or uncle, cousin, former foster parent, neighbor, or

friend.           Requiring          proof     of     a     significant         supportive

relationship from persons in this undefined category makes good

policy sense.        Requiring the same proof from a grandparent is

unnatural, and it would clearly make a successful petition for

visitation much more difficult for some grandparents than for

others.


                                              15
                                                                         No.         2014AP1283



      ¶29    Our interpretation of the statutory language begins

with an examination of its syntax.                        The Meister children urge us

to apply the last-antecedent canon of statutory construction,

under which "qualifying or limiting clauses in a statute are to

be referred to the next preceding antecedent, unless the context

or plain meaning dictates otherwise."                          Vandervelde v. City of

Green      Lake,    72    Wis. 2d 210,            215,       240    N.W.2d     399     (1976)

(concluding        that   a    statute's          minimum      population      requirement

affected towns but not cities where statute applied to "any city

or village or any town having a population of more than 7,500");

see   also    Antonin     Scalia         &    Bryan   A.     Garner,    Reading      Law   144

(2012) ("A pronoun, relative pronoun, or demonstrative adjective

generally      refers         to        the    nearest       reasonable        antecedent."

(emphasis     omitted));           2A    Norman      J.    Singer   &   Shambie       Singer,

Statutes and Statutory Construction § 47:33, at 494-97 (7th ed.

2014) ("Referential and qualifying words and phrases, where no

contrary intention appears, refer solely to the last antecedent.

The last antecedent is 'the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the

sentence.'" (footnote omitted)).13

      13
       Black's Law Dictionary provides a similar definition: "An
interpretive principle by which a court determines that
qualifying words or phrases modify the words or phrases
immediately preceding them and not words of phrases more remote,
unless the extension is necessary from the context or the spirit
of the entire writing."    Rule of the Last Antecedent, Black's
Law Dictionary 1532-33 (10th ed. 2014). As an example, Black's
explains that, "in the phrase Texas courts, New Mexico courts,
and New York courts in the federal system, the words in the
federal system might be held to modify only New York courts and
                                                     (continued)
                                                16
                                                 No.   2014AP1283




not Texas courts or New Mexico courts."   Id.

     In his critique of the canons of interpretation, Karl
Llewellyn   presented  the  rule   as  two   competing  canons:
"Qualifying or limiting words or clauses are to be referred to
the next preceding antecedent," but "[n]ot when evident sense
and meaning require a different construction."         Karl N.
Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to Be Construed, 3 Vand.
L. Rev. 395, 405 (1950).

     More recently, Justice Scalia and Bryan Garner examined the
rule's application in their book Reading Law.      See Scalia &
Garner 144-46.     Their discussion included contemporary and
historic examples of the rule's use at the Supreme Court of the
United States.   Id. (first citing Barnhart v. Thomas, 540 U.S.
20, 27-28 (2003); then citing Sim's Lessee v. Irvine, 3 U.S. (3.
Dall.) 425, 444 n.* (1799)). For a more recent example of the
Supreme Court's application of the canon, in which the Court
quoted from Black's and from Reading Law, see the Court's
decision on March 1, 2016 in Lockhart v. United States, 136 S.
Ct. 958 (2016).

     In addition to the Vandervelde case cited in the text
above, this court also has periodically applied the last-
antecedent rule when interpreting statutes.    See, e.g., Fuller
v. Spieker, 265 Wis. 601, 603-05, 62 N.W.2d 713 (1954)
(interpreting county ordinance to place time limit on mandatory
but not discretionary leave for deputy sheriff where time limit
language followed mandatory leave requirement); Serv. Inv. Co.
v. Dorst, 232 Wis. 574, 576-78, 288 N.W. 169 (1939) (applying
context exception where comma evinced intent for clause to
modify all preceding clauses in list, rather than only the
immediately preceding clause); cf. Stoker v. Milwaukee Cty.,
2014 WI 130, ¶¶23-24, 359 Wis. 2d 347, 857 N.W.2d 102 (declining
to apply last-antecedent canon in order to avoid absurd result).

     Finally, the Legislative Reference Bureau's Wisconsin Bill
Drafting Manual 2015-2016 (2014) (Bill Drafting Manual) suggests
drafting with the last antecedent canon in mind.       A section
providing guidance with regard to word choice and phrasing
encourages drafters to "modify only the words that you intend to
modify."    Bill Drafting Manual § 2.01(17m)(a), at 39.       It
explains that the phrase "'licensees may hunt moose, deer, or
ducks that are not on the endangered species list' is
ambiguous."     Id.    After suggesting alternative sentence
                                                     (continued)
                               17
                                                            No.   2014AP1283



    ¶30    Here, interpreting Wis. Stat. § 767.43(1) requires us

to determine whether the pronoun "who" in the qualifying clause

applies only to a "person" or also applies to grandparents,

greatgrandparents,    and   stepparents.       The   list     "grandparent,

greatgrandparent, stepparent or person" immediately precedes the

limiting clause "who has maintained a relationship similar to a

parent-child relationship with the child."             Applying the last-

antecedent rule to the list limits "who" to the final item in

the list——"person."     Consequently, reading § 767.43(1) according

to the last-antecedent canon supports the interpretation that a

person seeking visitation rights under the subsection needs to

prove that he or she has a parent-child relationship with the

child only if the person is not a grandparent, greatgrandparent,

or stepparent.   We think this is the more natural reading of the

phrase.

    ¶31    Next, we expand the analysis of Wis. Stat. § 767.43 to

consider   subsection    (1)   in    context    with     subsection    (3).

Subsection (3) reads as follows:

         (3) Special Grandparent Visitation Provision.
    The court may grant visitation rights, with respect to
    a child, to a grandparent of the child if the child's
    parents have notice of the hearing and the court
    determines all of the following:

constructions that would avoid ambiguity, the manual cites state
and federal cases in Wisconsin that interpreted statutes with
unclear modifiers. Id. § 2.01(17m)(b)-(d), at 40. First among
the cited cases is Vandervelde, which the manual cites for the
proposition that "qualifying or limiting words in a statute
generally refer to the nearest antecedent only."             Id.
§ 2.01(17m)(d), at 40.


                                    18
                                                                     No.      2014AP1283


           (a) The child is a nonmarital child whose
      parents have not subsequently married each other.

           (b) Except   as   provided  in   sub. (4),                          the
      paternity of the child has been determined under                         the
      laws of this state or another jurisdiction if                            the
      grandparent filing the petition is a parent of                           the
      child's father.

            (c)    The child has not been adopted.

           (d) The     grandparent   has   maintained   a
      relationship with the child or has attempted to
      maintain a relationship with the child but has been
      prevented from doing so by a parent who has legal
      custody of the child.

           (e) The grandparent is not likely to act in a
      manner that is contrary to decisions that are made by
      a parent who has legal custody of the child and that
      are related to the child's physical, emotional,
      educational or spiritual welfare.

           (f) The visitation is in the best interest of
      the child.
(Capitalization omitted; emphasis added.)

      ¶32   The    legislature       explicitly      included        a     relationship

requirement for grandparents in subsection (3) but declined to

do so in subsection (1).              Under subsection (3), a court may

grant   visitation       rights   only   if     it   determines,           among    other

things, that "[t]he grandparent has maintained a relationship

with the child or has attempted to maintain a relationship with

the     child     but     has     been        prevented       from         doing     so."

§ 767.43(3)(d).         Reading subsection (1) as requiring proof of a

"parent-child     relationship"       would     place     a   heavier        burden    on

grandparents      of    marital   children      than    subsection          (3)'s    mere

"relationship"         requirement    for      grandparents      of         non-marital
children——despite the absence of the type of clear requirement

                                         19
                                                             No.      2014AP1283



that appears in subsection (3).            This suggests that the Rogers

interpretation of subsection (1) was not correct.

    ¶33    A   review    of   the    statutory     history   of     Wis.    Stat.

§ 767.43(1)    further    indicates    that    the   legislature      did    not

intend    to   require    grandparents        to   prove     a     parent-child

relationship with the child when petitioning for visitation.                   An

earlier version of the grandparent visitation statute provided:

          The  court   may   grant  reasonable   visitation
    privileges to a grandparent or greatgrandparent of any
    minor     child     upon    the    grandparent's     or
    greatgrandparent's petition to the court with notice
    to the parties if the court determines that it is in
    the best interests and welfare of the child and issue
    any necessary order to enforce the same.
Wis. Stat. § 767.245(4) (1985-86).             Under this version of the

statute, only a grandparent or greatgrandparent could petition

for visitation rights——there was no provision for stepparents or

other persons——and a grandparent or greatgrandparent petitioner

did not need to prove the existence of any kind of relationship

with the child.

    ¶34    In 1988 the legislature passed 1987 Wis. Act. 355.

Section 38 of Act 355 amended the visitation statute to bring it

closer to its current form.         As amended, the statute read:

         Upon petition by a grandparent, greatgrandparent,
    stepparent or person who has maintained a relationship
    similar to a parent-child relationship with the child,
    the court may grant reasonable visitation rights to
    that person if the parents have notice of the hearing
    and if the court determines that visitation is in the
    best interest of the child.
Wis. Stat. § 767.245(1) (1987-88).            An inline note, authored by
the Legislative Council, accompanied section 38 of Act 355 and

                                      20
                                                                             No.       2014AP1283



explained       that      the     amendment      "[e]xtend[ed]             the     current    law

permitting the court, upon petition, to grant visitation rights

to a grandparent or greatgrandparent to: (1) a stepparent; and

(2) any person who has maintained a relationship similar to a

parent-child relationship with the child."

       ¶35    Taken       together,       the    change       to    the     language    of    the

statute      and    the     Legislative         Council       note        provide   compelling

evidence that the legislature intended that the phrase "who has

maintained a relationship similar to a parent-child relationship

with the child" should apply only to a "person" petitioning for

visitation         under     the    statute.             Rather       than       placing     more

stringent       requirements         on    grandparents             and    greatgrandparents

filing    motions         under     the    statute,       the        legislature       actually

expanded      the      categories         of    people        who    might       petition     for

visitation in any particular case by allowing stepparents and

other    persons       to   do     so.     The       Legislative          Council     note   then

confirmed the expansive nature of the changes, making clear that

the    phrase      "who     has    maintained        a   relationship            similar     to   a
parent-child relationship with the child" attaches only to a

"person" petitioning for visitation rights while placing no such

condition on petitions by grandparents, greatgrandparents, and

stepparents.

       ¶36    This characterization of Wis. Stat. § 767.43(1) and

the    accompanying         Legislative         Council       note    is     consistent      with

this    court's      previous       discussions          of    the        statute's    history,

which have focused on the legislature's gradual expansion of
visitation rights.              In Holtzman, the court quoted the same note
                                                21
                                                                    No.      2014AP1283



and indicated that "[t]he major change in 1988, as explained by

the Legislative Council's Special Committee notes, was to extend

the   current    law."       Holtzman,       193    Wis. 2d at       672     (internal

quotation mark omitted).          Similarly, our discussion in Sporleder

v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202 (1991), overruled on

other     grounds     by     Holtzman,       193        Wis. 2d 659,       implicitly

associated the parent-child relationship requirement only with a

"person" petitioning for visitation when noting that Wis. Stat.

§ 767.43(1)     had   been   "amended    to    include         a   'person    who   has

maintained a relationship similar to a parent-child relationship

with the child,' as persons who may petition for visitation

rights."    Sporleder, 162 Wis. 2d at 1016.

      ¶37   Nothing in Act 355's legislative history contradicts

our reading of § 767.43(1).           A review of the Act's drafting file

indicates that the language at issue remained consistent with

its present form throughout the drafting and amendment process.

Additionally, an Analysis by the Legislative Reference Bureau——

originally      appended     to   a   draft        at    the   beginning      of    the
legislation but later replaced by the Legislative Council notes

already      discussed——confirms         our            understanding        of     the

legislature's intended change:

      Under   current   law . . . the   court   may   provide
      visitation    privileges    to   a    grandparent    or
      greatgrandparent if that is in the child's best
      interest. Under this bill, the current law permitting
      visitation by grandparents and greatgrandparents is
      extended to apply to stepparents, persons who have
      maintained a relationship similar to a parent-child
      relationship with the child and, under certain
      circumstances, any other person.

                                        22
                                                                                No.         2014AP1283



Drafting     File        for    1987          Wis.       Act.       355,     Analysis           by    the

Legislative       Reference          Bureau         of       1987     A.B.    205,     Legislative

Reference Bureau, Madison, Wis.                          Although this analysis did not

appear    with    the     final       Act,      it       nevertheless         indicates          that——

throughout the drafting process——the phrase "who has maintained

a relationship similar to a parent-child relationship with the

child"    attached       only        to   a    person         other     than    a     grandparent,

greatgrandparent, or stepparent.

      ¶38    Collectively, these aspects of the context and history

of Wis. Stat. § 767.43(1) support our reading of its language:

the   phrase      "who    has    maintained              a    relationship          similar          to   a

parent-child relationship with the child" applies to a "person"

seeking visitation but not to a grandparent, greatgrandparent,

or stepparent.

      ¶39    We     now         evaluate             the           implications            of        this

interpretation for parents' constitutional rights to direct the

care, custody, and control of their children.

 B.   Wis. Stat. § 767.43(1) Does Not Unconstitutionally Infringe
                         on Parents' Due Process Rights

      ¶40    In her brief and at oral argument, Nancy argued that

interpreting        the        statute             not        to      require       grandparents,

greatgrandparents,             and    stepparents              to     prove     a     parent-child

relationship       when    seeking            visitation            would    unconstitutionally

interfere with parents' rights to raise their children.                                          Citing

Troxel v. Granville, 530 U.S. 57 (2000), she suggests that "[i]n

order to respect the constitutionally protected liberty interest
parents     have,    there       must         be     a       larger    barrier        to    usurping
                                                   23
                                                                            No.      2014AP1283



parents' control than notice of hearing and a best interest

inquiry."         We conclude that the court of appeals appropriately

addressed and resolved this contention in Roger D.H. v. Virginia

O., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440.

      ¶41     In    Troxel,      the       Supreme      Court    of   the    United       States

reaffirmed        that    the    "Due        Process      Clause      of    the    Fourteenth

Amendment     protects      the       fundamental         right    of      parents    to    make

decisions concerning the care, custody, and control of their

children."         Troxel, 530 U.S. at 66.                   The case involved a State

of Washington statute, which provided, "Any person may petition

the court for visitation rights at any time including, but not

limited to, custody proceedings.                       The court may order visitation

rights    for      any    person          when   visitation       may      serve     the    best

interest of the child whether or not there has been any change

of    circumstances."                Id.    at     61    (quoting       Wash.      Rev.     Code

§ 26.10.160(3)        (1994)).             Under      that    statute,      the    children's

paternal      grandparents           sought       an     extensive      visitation         order

following their son's death, but the children's mother opposed
the     request,         favoring          short,       monthly       visits       with      the

grandparents.        Id. at 60-61.               A state trial court had entered a

visitation        order    after          concluding      that    visitation         with    the

grandparents would be in the children's best interest.                                 Id. at

61-62.

      ¶42     A    Plurality         of    the   Supreme      Court     stopped      short    of

holding the statute facially unconstitutional but did conclude

that,    as       applied       by        the    Washington       court,       the    statute
unconstitutionally interfered with the mother's rights to define
                                                 24
                                                                   No.        2014AP1283



the care, custody, and control of her children.                     Id. at 67, 73

(plurality opinion).        The Plurality explained the important role

that   parents      play   in   defining       the   best     interests       of    their

children:

            The problem here is not that the Washington
       Superior Court intervened, but that when it did so, it
       gave no special weight at all to [the mother's]
       determination of her daughters' best interests. . . .
       In effect, the judge placed on [the mother], the fit
       custodial parent, the burden of disproving that
       visitation would be in the best interest of her
       daughters.
Id. at 69.          In limiting its determination to an as applied

analysis,     the    Plurality    commented,         "Because    much     state-court

adjudication in this context occurs on a case-by-case basis, we

would be hesitant to hold that specific nonparental visitation

statutes violate the Due Process Clause as a per se matter."

Id. at 73.

       ¶43    Shortly after the Court decided                 Troxel, Wisconsin's

court of appeals considered a facial challenge to Wis. Stat.

§ 767.43(1) in Roger D.H.           A child's mother sought to vacate a

court-approved       stipulation    granting         visitation    rights          to   the

child's paternal grandmother.             Roger D.H., 250 Wis. 2d 747, ¶¶4-

5.      She    asserted    that    "Wis.       Stat.    § 767.245        is    facially

unconstitutional       under     Troxel    because      the     statute       does      not

require that courts give presumptive weight to a fit parent's

decision regarding non-parental visitation."                  Id., ¶13.

       ¶44    The court of appeals rejected the facial challenge:

            We glean from Troxel two propositions relevant to
       the issue before us. First, due process requires that

                                          25
                                                                       No.      2014AP1283


       courts apply a presumption that a fit parent's
       decision regarding non-parental visitation is in the
       best interest of the child. Second, a state court may
       read this requirement into a non-parental visitation
       statute, even when the statute is silent on the topic.

            Accordingly, we hold that when applying Wis.
       Stat. § 767.245(3), circuit courts must apply the
       presumption that a fit parent's decision regarding
       grandparent visitation is in the best interest of the
       child. At the same time, we observe that this is only
       a presumption and the circuit court is still obligated
       to make its own assessment of the best interest of the
       child. What the Due Process Clause does not tolerate
       is a court giving no "special weight" to a fit
       parent's   determination,   but  instead   basing  its
       decision on "mere disagreement" with the parent.
Id., ¶¶18-19 (citation omitted).

       ¶45    Although Roger D.H. involved the statute now codified

at   Wis.     Stat.    § 767.43(3),         we   conclude      that     the    court     of

appeals' reasoning is equally appropriate with regard Wis. Stat.

§ 767.43(1).          As    under    subsection       (3),     a     court    may    grant

visitation under subsection (1) only if the court determines

that    doing   so    would    be    in    the   child's      best    interest.         The

Supreme Court indicated in                Troxel    that any examination of a
child's best interest must give special weight to a fit parent's

own best interest determination.                    Troxel, 530 U.S. at 69-70

("The    decisional         framework      employed      by   the     Superior       Court

directly      contravened      the    traditional        presumption         that   a   fit

parent will act in the best interest of his or her child.                               In

that    respect,      the   court's       presumption     failed      to     provide    any

protection for [the mother's] fundamental constitutional right

to     make     decisions      concerning          the    rearing       of     her      own
daughters.").         Troxel's presumption in favor of a fit parent's

                                            26
                                                                         No.        2014AP1283



determination        would       apply     to    a     court's     evaluation           of     a

§ 767.43(1) visitation petition as a part of the best interest

analysis——and the presumption would apply regardless of whether

the    petitioner        proved    a     parent-child        relationship           with     the

child.

       ¶46   Thus, our holding——that the phrase "who has maintained

a relationship similar to a parent-child relationship with the

child" does not apply to a grandparent, greatgrandparent, or

stepparent petitioning for visitation rights under § 767.43(1)——

does not conflict with parental constitutional rights as set

forth in Troxel.          Whenever someone brings a visitation petition

under    § 767.43(1)——whether             the    petitioner       is     a       grandparent,

greatgrandparent, stepparent, or other person——Troxel requires

that the deciding court give special weight to a fit parent's

opinions regarding the child's best interest as part of any best

interest determination.

       ¶47   We think it important to note that while our decision

eliminates         one     unintended           impediment        for        grandparents,
greatgrandparents, and stepparents                     who seek visitation rights

under Wis. Stat. § 767.43(1), it does not guarantee that they

will     prevail.          The     court        must     not     only        consider        the

constitutional rights of the parents but also decide, in its

sound discretion, whether the facts and circumstances of the

case     warrant     granting,         modifying,       or     denying       a     visitation

petition in the best interest of the child.

                                   IV.     CONCLUSION


                                            27
                                                                          No.      2014AP1283



      ¶48    Examining Wis. Stat. § 767.43(1) in its present form,

it is clear that the legislature has gradually expanded the

number of persons who may petition for visitation rights.                                  The

current     statute      allows     grandparents,         greatgrandparents,               and

stepparents to petition for visitation rights, and it allows

other persons to seek visitation as well, so long as they have

"maintained        a     relationship         similar         to      a         parent-child

relationship with the child."                Given the legislature's history

of   expanding     visitation       rights       and   the    fact       that     any   court

considering       a      child's     best        interests        under         Wis.    Stat.

§ 767.43(1)       must    give     special       weight      to    fit       parents'   best

interest     determinations,          we     conclude         that       a      grandparent,

greatgrandparent, or stepparent need not prove a parent-child

relationship in order to secure visitation rights under that

subsection.

      By    the   Court.—The       decision       of   the    court       of     appeals    is

reversed.

      ¶49    REBECCA G. BRADLEY, J., did not participate.




                                            28
                                                                          No.    2014AP1283.ssa


    ¶50     SHIRLEY S. ABRAHAMSON, J.                    (concurring).                This is a

statutory interpretation case.                    The statute at issue is Wis.

Stat. § 767.43(1).            Wisconsin Stat. § 767.43(1) provides that a

"grandparent,         greatgrandparent,          stepparent         or    person        who    has

maintained        a     relationship             similar       to         a      parent-child

relationship" may petition the court to seek visitation rights

to the child; the court may grant visitation if visitation is in

the child's best interests.

    ¶51     In    the     instant       case,        Carol    Meister,          the    paternal

grandmother of four minor children, S.A.M., A.L.M., O.M.M., and

J.E.M., filed a motion in the children's parents' divorce action

to establish visitation with the children.

    ¶52     The circuit court denied the grandmother's                            motion for

visitation, concluding that the grandmother failed to show a

"relationship         similar      to    a     parent-child              relationship"          as

required    under      the    court     of   appeals'        interpretation             of    Wis.

Stat. § 767.43(1) in Rogers v. Rogers, 2007 WI App 50, ¶11, 300

Wis. 2d 532, 731 N.W.2d 347.
    ¶53     The       court   of    appeals       affirmed      the       circuit       court's

order in an unpublished decision.                     It too relied on the Rogers

v. Rogers case.1         The majority opinion disagrees with the court

of appeals' interpretation of Wis. Stat. § 767.43(1).

    ¶54     I write separately to make two points.

    ¶55     I.        First,    although         I    happen    to       agree        with    this

court's    interpretation          of   Wis.     Stat.       § 767.43(1),         I    conclude

    1
       S.A.M. v. Meister, No. 2014AP1283, unpublished slip op.,
¶¶13-14 (Wis. Ct. App. Feb. 5, 2015).


                                             1
                                                               No.   2014AP1283.ssa


that this court violates the plain language of § 767.43(1) by

deciding the instant case.2

     ¶56   Wisconsin Stat. § 767.43(1), entitled "Petition, who

may file" provides (with added emphasis):

     Except as provided in subs. (1m) and (2m), upon
     petition    by   a    grandparent,   greatgrandparent,
     stepparent or person who has maintained a relationship
     similar to a parent-child relationship with the child,
     the court may grant reasonable visitation rights to
     that person if the parents have notice of the hearing
     and if the court determines that visitation is in the
     best interest of the child.
     ¶57   The   grandmother    did    not   appeal     the    circuit    court's

denial of visitation or pursue the review in this court.                        The

guardian ad litem (and the children whom the guardian ad litem

represents) pursued the appeal and review.

     ¶58   Under    the     plain     text   of   the       statute,     only     a

grandparent   (or   other    named    individual      not     relevant    in    the

instant case) may seek visitation with a child and a court may

grant visitation only to these identified persons.

     ¶59   Neither the guardian ad litem nor the children argue

that they fall within the ambit of Wis. Stat. § 767.43(1).                     Thus

the right parties are not before the court.                   Accordingly, this

court does not have any statutory or other basis to consider the

petition for review filed by a person not identified in the


     2
       Members of the court do not always agree about the
methodology to be used in interpreting statutes.   See, e.g.,
Justice Ziegler's concurrence, ¶80 (concluding ¶23 of the
majority opinion is unnecessary because Wis. Stat. § 767.43(1)
is unambiguous); see also Anderson v. Aul, 2015 WI 19, 361
Wis. 2d 63, 862 N.W.2d 304.


                                       2
                                                                           No.    2014AP1283.ssa


statute     as     having    the     power        to    seek    visitation           with    the

children.3

     ¶60     II.       Second,       I   am       concerned         that     the     statutory

interpretation        set        forth   in       the    instant           case     puts     the

constitutionality of Wis. Stat. § 767.43(3) in doubt.

     ¶61     The burden that Wis. Stat. § 767.43(3) imposes on a

grandparent        seeking       visitation       rights       to     children        born    to

unmarried    parents        is    significantly          greater       than        the   burden

§ 767.43(1) imposes on a grandparent seeking visitation rights

to children born to a married couple.

     3
       This issue might be framed as a question of "standing,"
see majority op., ¶16 n.8, but it is easier to frame and analyze
the issue as one of statutory interpretation, namely whether the
children and guardian ad litem may initiate and pursue the
proceeding under the statute.      The concept of standing has
numerous dimensions.   Standing and statutory interpretation are
distinct and should not be conflated. See Foley-Ciccantelli v.
Bishop's Grove Condo Ass'n, Inc., 2011 WI 36, ¶¶5, 54, 333
Wis. 2d 402, 797 N.W.2d 789 ("There is no single longstanding or
uniform test to determine standing in the case law. . . . The
essence of the question of standing . . . is . . . whether the
injured interest of the party whose standing is challenged falls
within the ambit of the statute or constitutional provision
involved."); see also William A. Fletcher, The Structure of
Standing, 98 Yale L.J. 221, 236 (1988) ("'When a plaintiff seeks
standing on the basis that an interest is protected by statute,
the question whether that interest is legally protected for
standing purposes is the same as the question whether plaintiff
(assuming his or her factual allegations are true) has a claim
on the merits.'") (quoting Stephen G. Breyer & Richard B.
Stewart, Administrative Law and Regulatory Policy: Problems,
Text, and Cases 1094 (2d ed. 1985) (footnote omitted));
Wisconsin's Envt'l Decade, Inc. v. Pub. Serv. Comm'n of Wis., 69
Wis. 2d 1, 11, 230 N.W.2d 243 (1975) (describing cases resolved
"on the notion that the statute relied upon by the person
seeking review did not give legal recognition to the interest
asserted" as "rest[ing] upon statutory interpretation rather
than the law of standing itself.").


                                              3
                                                                    No.   2014AP1283.ssa


     ¶62     Statutory classifications based on the child being a

nonmarital        child   are    subjected       to    a    heightened      level     of

scrutiny.4        A statutory classification based on the status of a

child as a nonmarital child will be struck down under the Equal

Protection    Clause      if    the   "classification         is   justified     by   no

legitimate state interest, compelling or otherwise."5

     ¶63     For the reasons set forth, I write separately.

                                           I

     ¶64     Wisconsin Stat. § 767.43(1), entitled "Petition, who

may file," states (in relevant part):                       "[U]pon petition by a

grandparent,       greatgrandparent,       stepparent         or   person     who     has

maintained a relationship similar to a parent-child relationship

with the child, the court may grant reasonable visitation rights

to that person if the parents have notice of the hearing and if

the court determines that visitation is in the best interests of

the child."

     ¶65     In     the    instant       case,        the    children's       paternal

grandmother, Carol, filed a motion seeking visitation with the
children.     The grandmother represented herself in the visitation

proceedings.

     ¶66     The    children's        guardian    ad    litem      agreed    with     the

grandmother that visitation was in the children's best interest.

The circuit court noted that the guardian ad litem "took the


     4
         Pickett v. Brown, 462 U.S. 1, 7 (1983).
     5
       Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76
(1972).


                                           4
                                                                                    No.    2014AP1283.ssa


laboring oar" in a hearing regarding the grandmother's motion

for visitation.

         ¶67       The       grandmother         did    not,         however,      appeal       from       the

circuit court's order denying her motion for visitation.                                                   Nor

was the grandmother a party in this court.6                                        See majority op.,

¶18 n.10.

         ¶68       The       instant    case         poses       a    question      raised        at   oral

argument but not addressed by the court or the parties' briefs:

May an individual other than a "grandparent, greatgrandparent,

stepparent, or person who has maintained a relationship similar

to   a       parent-child         relationship              with       the    child"      initiate         and

pursue        an    appeal       or    a    review          of       the    circuit      court's       order

denying            visitation          to        a     grandparent               under     Wis.        Stat.

§ 767.43(1)?                  Simply       and       more       specifically            stated,      may     a

guardian        ad       litem    for       minor      children            initiate      and    pursue       a

proceeding in an appellate court regarding a circuit court's

order denying a grandparent's petition for visitation?

         ¶69       Given the statutory limitations on who may bring a
petition           for       visitation          and       to        whom    a     court       may     grant

visitation,              I    conclude       that       the          guardian      ad     litem      cannot


         6
       Indeed, the grandmother passed away before the petition
for review was filed in this court. The grandmother's death was
brought to the court's attention by a letter.   Contrary to the
practices and procedures of this court, one justice and a
commissioner, without a vote of the court, unilaterally ordered
supplemental briefing regarding whether the case was moot. The
issue in the present case is not one of mootness. The issue is
whether an appeal or review initiated and pursued by a guardian
ad litem representing the children falls within the purview of
Wis. Stat. § 767.43(1). See majority op., ¶16 n.8.


                                                       5
                                                                      No.    2014AP1283.ssa


initiate and pursue proceedings in an appellate court seeking

review    of    a     circuit      court's     order     denying      a     grandparent's

petition for visitation.

    ¶70        The    children     and    their    guardian      ad       litem    are   not

within the ambit of Wis. Stat. § 767.43(1).                           Wisconsin Stat.

§ 767.43(1)          limits      the   right      to    petition      the     court      for

visitation      to     identified        individuals;      the     statute        does   not

identify children or their guardian ad litem as petitioners.

The right parties are not before the court.

                                             II

    ¶71        Given      this    court's      interpretation         of     Wis.     Stat.

§ 767.43(1), I question whether the statutory interpretation set

forth in the instant case puts the constitutionality of Wis.

Stat. § 767.43(3) in doubt.

    ¶72        Wisconsin Stat. § 767.43(1), entitled "Petition, who

may file," provides (with added emphasis):

    Except as provided in subs. (1m) and (2m), upon
    petition    by   a    grandparent,   greatgrandparent,
    stepparent or person who has maintained a relationship
    similar to a parent-child relationship with the child,
    the court may grant reasonable visitation rights to
    that person if the parents have notice of the hearing
    and if the court determines that visitation is in the
    best interest of the child.
    ¶73        The court interprets Wis. Stat. § 767.43(1) to mean

that a grandparent need not demonstrate a relationship with the

child to be granted visitation.7                       In other words, Wis. Stat.

§ 767.43(1),         as   interpreted        in   the    instant      case,       allows   a


    7
         See majority op., ¶6.


                                              6
                                                        No.   2014AP1283.ssa


"grandparent"    to   obtain   visitation   based   solely    on   the   best

interests of the child.8

     ¶74    In contrast, Wis. Stat. § 767.43(3), entitled "Special

grandparent visitation provision," requires a grandparent of a

child born to unmarried parents to demonstrate a relationship

with the child or efforts to maintain such a relationship.

     ¶75    Wisconsin Stat. § 767.43(3) provides:

     The court may grant reasonable visitation rights, with
     respect to a child, to a grandparent of a child if the
     child's parents have notice of the hearing and the
     court determines all of the following:

     (a) The child is a nonmarital child whose parents have
         not subsequently married each other.

     (b)    Except as provided in sub. (4), the paternity of
            the child has been determined under the laws of
            this state or another jurisdiction if the
            grandparent filing the petition is a parent of
            the child's father.

     (c)    The child has not been adopted.

     (d)    The grandparent has maintained a relationship
            with the child or has attempted to maintain a
            relationship   with   the child   but  has   been
            prevented from doing so by a parent who has legal
            custody of the child.

     (e)    The grandparent is not likely to act in a manner
            that is contrary to decisions that are made by a
            parent who has legal custody of the child and
            that are related to the child's physical,
            emotional, educational or spiritual welfare.

     (f)    The visitation is in the best interest of the
            child.9



     8
         See majority op., ¶6.


                                    7
                                                                   No.       2014AP1283.ssa


     ¶76    Wisconsin         Stat.     § 767.43(3),             the          "[s]pecial

grandparent    visitation      provision"       pertaining       to      a    nonmarital

child,     allows   a   grandparent       to     obtain     visitation            if     the

grandparent demonstrates, among other things, that (1) "[t]he

grandparent has maintained a relationship with the child or has

attempted to maintain a relationship with the child but has been

prevented from doing so by a parent who has legal custody of the

child;" (2) "[t]he grandparent is not likely to act in a manner

that is contrary to decisions that are made by a parent who has

legal custody of the child and that are related to the child's

physical, emotional, educational, or spiritual welfare;" and (3)

visitation is in the best interest of the child.

     ¶77    Statutory classifications based on the child being a

nonmarital     child    are    subjected       to     a   heightened           level      of

scrutiny.10    A statutory classification based on the status of a

child as a nonmarital child will be struck down under the Equal

Protection    Clause    if    the   "classification         is   justified          by    no

legitimate state interest, compelling or otherwise."11
     ¶78    What legitimate state interest is served by Wis. Stat.

§ 767.43(3)     imposing      a     substantially         higher        burden      on     a

grandparent    seeking       visitation       based   solely       on    the      child's

parents' marital status?

     9
       Wisconsin Stat. § 767.43(3) applies to a grandparent
requesting visitation whenever sub. (a) to (c) apply to the
child. See Wis. Stat. § 767.43(2m).
     10
          Pickett, 462 U.S. at 7.
     11
          Weber, 406 U.S. at 175-76.


                                          8
                                                     No.    2014AP1283.ssa


    ¶79   For   the   reasons   set   forth,   I   concur    and   write

separately.




                                  9
                                                                   No.   2014AP1283.akz


     ¶80    ANNETTE KINGSLAND ZIEGLER, J.                (concurring).         I join

all but ¶23 of the opinion of the court.                   In my view, the plain

text of Wis. Stat. § 767.43(1) is unambiguous.                           The court's

further analysis of § 767.43(1) simply confirms that the obvious

interpretation of the statute is the correct one.                         See, e.g.,

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶¶34-36, 338

Wis. 2d 761,     809    N.W.2d 529       (using    canons    of    construction       to

confirm, but not displace, the plain meaning of an unambiguous

term); Anderson v. Aul, 2015 WI 19, ¶¶111, 114, 361 Wis. 2d 63,

862 N.W.2d 304 (Ziegler, J., concurring) (analysis of statutory

history    and   consideration      of    absurd     results      can    be   used   to

confirm an unambiguous statute's plain meaning); Noffke ex rel.

Swenson    v.    Bakke,    2009     WI    10,     ¶18,   315      Wis. 2d 350,       760

N.W.2d 156 (noting that reliance on a dictionary does not render

a word or phrase ambiguous).1

     ¶81    For the foregoing reasons, I respectfully concur.

     ¶82    I    am    authorized    to    state    that    Justice      MICHAEL     J.

GABLEMAN joins this opinion.




     1
       I write this footnote to briefly confirm that the
methodology   applied  by   Justice  Prosser  comports   with
longstanding precedent as stated in State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110.


                                          1
    No.   2014AP1283.akz




1
