Chapter 68

68.11 History History: 1975 c. 295; 1989 a. 139.

68.11 Annotation The review of a city council decision by an administrative review appeals board that included the mayor did not violate the requirement of an impartial decision maker when the mayor did not participate in making or reviewing the resolution. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999), 97-1504.

68.12 68.12 Final determination.

68.12(1) (1) Within 20 days of completion of the hearing conducted under s. 68.11 and the filing of briefs, if any, the decision maker shall mail or deliver to the appellant its written determination stating the reasons therefor. Such determination shall be a final determination.

68.12(2) (2) A determination following a hearing substantially meeting the requirements of s. 68.11 or a decision on review under s. 68.09 following such hearing shall also be a final determination.

68.12 History History: 1975 c. 295.

68.125 68.125 Refund of fees. If in an administrative appeal under s. 68.10 the municipal authority’s order is overturned or the municipal authority withdraws the order that was the subject of the appeal, the municipality and municipal authority shall refund any fee paid to it by the appellant as a condition of filing the appeal.

68.125 History History: 2017 a. 317; 2021 a. 238 s. 45.

68.13 68.13 Judicial review.

68.13(1) (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.

68.13(2) (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.

68.13 History History: 1975 c. 295, 421; 1981 c. 289.

68.13 Note 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]

68.13 Annotation 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.

68.13 Annotation A litigant cannot bring a claim for money damages grounded upon 42 USC 1983 in a certiorari proceeding under this chapter. Failure to join a section 1983 claim with a certiorari action under this chapter 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.

68.13 Annotation 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.

68.13 Annotation 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.

68.13 Annotation 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.

68.13 Annotation 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.

68.13 Annotation 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.

68.13 Annotation 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, 375 Wis. 2d 676, 896 N.W.2d 342, 15-1016. But see Zelman v. Town of Erin, 2018 WI App 50, 383 Wis. 2d 679, 917 N.W.2d 222, 17-1529.

68.13 Annotation 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.

68.13 Annotation Remand to the municipality or administrative tribunal for further hearings is appropriate when the defect in the proceedings is one that can be cured, but, on remand, supplementation of the record by the government decision-maker with new evidence or to assert new grounds is not permitted. Outright reversal is appropriate when the due process violation cannot be cured on remand. This includes reversals in which the factual evidence fails to support the municipality’s or administrative tribunal’s decision. Because the decision-maker cannot supplement the record with new evidence or new grounds, the defect cannot be cured. Hartland Sportsmen’s Club, Inc. v. City of Delafield, 2020 WI App 44, 393 Wis. 2d 496, 947 N.W.2d 214, 19-0740.

68.13 Annotation On certiorari review, a court is limited to determining whether: 1) the governmental body’s decision was within its jurisdiction; 2) the body acted according to law; 3) the decision was arbitrary or oppressive; and 4) the evidence of record substantiates the body’s decision. On certiorari review, there is a presumption of correctness and validity to a municipality’s decision. Grycowski v. Milwaukee Employees’ Retirement System/Annuity & Pension Board, 2021 WI App 7, 395 Wis. 2d 722, 953 N.W.2d 904, 19-2295.

68.14 68.14 Legislative review.

68.14(1) (1) The seeking of a review pursuant to s. 68.10 or 68.13 does not preclude a person aggrieved from seeking relief from the governing body of the municipality or any of its boards, commissions, committees, or agencies which may have jurisdiction.

68.14(2) (2) If in the course of legislative review under this section, a determination is modified, such modification and any evidence adduced before the governing body, board, commission, committee or agency shall be made part of the record on review under s. 68.13.

68.14(3) (3) The governing body, board, commission, committee or agency conducting a legislative review under this section need not conduct the type of hearing required under s. 68.11.

68.14 History History: 1975 c. 295.

68.15 68.15 Availability of methods of resolving disputes. This chapter does not preclude any municipality and person aggrieved from employing arbitration, mediation or other methods of resolving disputes, and does not supersede contractual provisions for that purpose.

68.15 History History: 1975 c. 295.

68.16 68.16 Election not to be governed by this chapter. The governing body of any municipality may elect not to be governed by this chapter in whole or in part by an ordinance or resolution which provides procedures for administrative review of municipal determinations.

68.16 History History: 1975 c. 295.

68.16 Annotation In order for a municipality to elect not to be governed by a particular section of this chapter, the municipality must enact an ordinance that shows that it chooses to opt out of the particular section. Tee & Bee, Inc. v. City of West Allis, 214 Wis. 2d 194, 571 N.W.2d 438 (Ct. App. 1997), 96-2143.