2018 Wisconsin Statutes & Annotations
Chapter 68. Municipal administrative procedure.
68.13 Judicial review.
68.13 Judicial review.
(1) Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision.
(2) If review is sought of a final determination, the record of the proceedings shall be transcribed at the expense of the person seeking review. A transcript shall be supplied to anyone requesting the same at the requester's expense. If the person seeking review establishes impecuniousness to the satisfaction of the reviewing court, the court may order the proceedings transcribed at the expense of the municipality and the person seeking review shall be furnished a free copy of the transcript. By stipulation, the court may order a synopsis of the proceedings in lieu of a transcript. The court may otherwise limit the requirement for a transcript.
History: 1975 c. 295, 421; 1981 c. 289.
Judicial Council Note, 1981: Reference in sub. (1) to a “writ" of certiorari has been removed because that remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A]
The requirement of procedural due process is met if the state provides adequate post-deprivation remedies. Certiorari under this section is an adequate remedy. Failure to pursue certiorari under this section barred a claim that procedural due process was denied. Thorp v. Town of Lebanon, 2000 WI 60, 235 Wis. 2d 610, 612 N.W.2d 59, 98-2358.
A litigant cannot bring a claim for money damages grounded upon 42 U.S.C. 1983 in a certiorari proceeding under ch. 68. Failure to join a section 1983 claim with a ch. 68 certiorari action does not preclude the claimant from bringing a section 1983 claim. Hanlon v. Town of Milton, 2000 WI 61, 235 Wis. 2d 597, 612 N.W.2d 44, 99-1980.
This section unambiguously provides authority for the remand of an agency final order for further proceedings necessary to insure the legislative purpose set forth in s. 68.001. The circuit court had authority to remand a s. 68.12 final determination based upon a reconsideration motion that presented newly discovered recantation evidence. M.H. v. Winnebago County Department of Health & Human Services, 2006 WI App 66, 292 Wis. 2d 417, 714 N.W.2d 241, 05-0871.
A court should not defer to a municipality's interpretation of a statewide standard. Doing so would give one locality disproportionate authority to influence state standards established by the legislature. If the language of the municipality's ordinance appears to be unique and does not parrot a state statute but rather the language was drafted by the municipality in an effort to address a local concern, applying a presumption of correctness, the court will defer to the municipality's interpretation if it is reasonable. Ottman v. Town of Primrose, 2011 WI 18, 332 Wis. 2d 3, 796 N.W.2d 411, 08-3182.
A municipality's interpretation of its own ordinance is unreasonable if it is contrary to law, if it is clearly contrary to the intent, history, or purpose of the ordinance or if it is without a rational basis. An interpretation that directly contravenes the words of the ordinance is also unreasonable. Ottman v. Town of Primrose, 2011 WI 18, 332 Wis. 2d 3, 796 N.W.2d 411, 08-3182.
A certiorari court cannot order a board to perform a certain act. Thus, a court on certiorari review was without statutory authority to provide the equitable relief requested in this case. Certiorari exists to test the validity of decisions by administrative or quasi-judicial bodies. The scope of certiorari extends to questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, as well as questions relating to the irregularity of the proceedings. Guerrero v. City of Kenosha Housing Authority, 2011 WI App 138, 337 Wis. 2d 484, 805 N.W.2d 127, 10-2305.
Under sub. (1) and s. 68.12 (2) the decision subject to certiorari review is the final determination made by the administrative panel. However, there are two exceptions to the general rule that a petition for certiorari must go to the body whose acts are being reviewed: 1) when specially provided by statute, or in particular cases of necessity, as when the board or body whose acts are sought to be reviewed is not continuing or has ceased to exist; and 2) when service requirements are ambiguous, and there is an absence of a clear statutory identity of the board or body. Koenig v. Pierce County Department of Human Services, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632, 15-0410.
The 30-day period during which certiorari review is available for a town board's highway order to lay out, alter, or discontinue a highway begins to run on the date that the highway order is recorded by the register of deeds. Pulera v. Town of Richmond, 2017 WI 61, 371 Wis. 2d 609, 885 N.W.2d 380, 15-1016. But see Zelman v. Town of Erin, 2018 WI App 50, 383 Wis. 2d 679, 917 N.W.2d 222, 17-1529.
An oral vote of a town board does not constitute a “final determination” under sub. (1) because it does not satisfy the description of “final determination” under s. 68.12, and attendance at a public hearing where the oral vote occurred did not constitute “receipt” of the decision. Zelman v. Town of Erin, 2018 WI App 50, 383 Wis. 2d 679, 917 N.W.2d 222, 17-1529.
