Thomas D. Nowell v. City of Wausau ( 2013 )

2013 WI 88
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1045
COMPLETE TITLE: Thomas D. Nowell and Suporn Nowell, d/b/a IC
Willy's, LLC,
Plaintiffs-Appellants,
v.
City of Wausau,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 344 Wis. 2d 269, 823 N.W.2d 373
(Ct. App. – Published)
PDC No: 2012 WI App 100
OPINION FILED: November 6, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Gregory E. Grau
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
by Shane J. VanderWaal and Pietz, VanderWaal, Stacker & Rottier,
S.C., Wausau, and Anne Jacobson, Wausau city attorney, and oral
argument by Shane J. VanderWaal and Anne Jacobson.
For the plaintiffs-appellants, there was a brief by Ryan D.
Lister, Wausau, and oral argument by Ryan D. Lister.
An amicus curiae brief was filed by Grant F. Langley,
Milwaukee city attorney; Adam B. Stephens, Milwaukee assistant
city attorney; Michael May, Madison city attorney; Roger Allen,
Madison assistant city attorney; Robert Weber, Racine city
attorney; and Nicole Loop, Racine assistant city attorney, on
behalf of the cities of Milwaukee, Madison and Racine.
An amicus curiae brief was filed by Daniel M. Olson,
Madison, on behalf of the League of Wisconsin Municipalities.
2
2013 WI 88
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1045
(L.C. No. 2010CV1082)
STATE OF WISCONSIN : IN SUPREME COURT
Thomas D. Nowell and Suporn Nowell, d/b/a IC
Willy's, LLC,
FILED
Plaintiffs-Appellants,
NOV 6, 2013
v.
Diane M. Fremgen
City of Wausau, Clerk of Supreme Court
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The Petitioner, City of
Wausau, seeks review of a published court of appeals decision
that reversed a judgment entered by the circuit court affirming
the City's decision not to renew Thomas and Suporn Nowell's
Class B alcohol license.1 The court of appeals determined that
the circuit court had employed an incorrect standard of review.
¶2 The City of Wausau argues that the error lies with the
court of appeals and not the circuit court. It contends that
the de novo standard of review employed by the court of appeals
1
Nowell v. City of Wausau, 2012 WI App 100, 344 Wis. 2d
269, 823 N.W.2d 373 (reversing judgment of the circuit court for
Marathon County, Gregory E. Grau, J., presiding).
No. 2011AP1045
is not prescribed by Wis. Stat. § 125.12(2)(d) (2009-10)2 and is
inconsistent with the statute's legislative history, our prior
case law, and sound public policy. Instead, it asserts that
review of its licensing decisions under Wis. Stat.
§ 125.12(2)(d) is by certiorari.
¶3 Although the statute does not expressly address which
standard of review is to be applied, we are persuaded that an
examination of the legislative history, our prior case law, and
the public policy underlying the deference due to a
municipality's alcohol licensing decision militate in favor of
certiorari review. Therefore, we conclude that certiorari is
the correct standard of review for a court to apply when,
pursuant to Wis. Stat. § 125.12(2)(d), it reviews a municipal
decision not to renew an alcohol license. Accordingly, we
reverse the court of appeals.
I
¶4 The City of Wausau issued a Class B combined
intoxicating liquor and fermented malt beverage license to IC
Willy's on October 1, 2009. IC Willy's is a tavern owned by
Thomas and Suporn Nowell. Shortly after the license was issued,
police began receiving noise complaints.
¶5 In November 2009, after being warned that adult
entertainment was not permitted on the premises, IC Willy's
hosted a "Girls Gone Wild" event. At the event, officers
observed nudity and lewd behavior. The Nowells agreed to a
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2011AP1045
voluntary 15-day suspension of their alcohol license, in lieu of
revocation and any other citation or fines for the nudity. The
City permitted the Nowells to take the suspension in January so
that it would not conflict with their New Year's Eve
commitments. Thereafter, the Nowells submitted a 16-point plan
to address the problems IC Willy's had encountered.
¶6 On May 25, 2010, the City sent the Nowells notice of
its intent not to renew their license. The notification
indicated that this decision was based on numerous police
service calls to the premises, failed compliance checks, and the
Nowells' failure to implement the action steps put in place
after their earlier suspension. After receiving the notice the
Nowells requested a hearing on the non-renewal.
¶7 The City's Public Health and Safety Committee
commenced that hearing on June 29, 2010, at 1:00 p.m. The
hearing lasted for approximately 14 hours, during which the
Committee heard testimony from 18 witnesses and examined 42
exhibits.
¶8 The Committee issued its findings of facts,
conclusions of law, and recommendation on June 30, 2010. It
found that after the police received four separate complaints, a
citation for disturbing the peace was issued to IC Willy's on
October 25, 2009. IC Willy's received another citation on
November 8, 2009, for the same problem after the police had
responded to seven additional complaints for loud music. On
November 14, 2009, IC Willy's failed to take action to prevent
3
No. 2011AP1045
nudity at its establishment after the police warned that nudity
was not permitted.
¶9 The Committee further found that in February 2010 IC
Willy's failed compliance checks involving underaged persons on
the premises and that IC Willy's received another citation for
disturbing the peace on May 8, 2010. Based on these findings,
the Committee recommended that the City Council not renew the
Nowells' license. After hearing additional arguments, the City
Council voted to accept the Committee's recommendation.
¶10 On July 12, 2010, the Nowells filed a complaint with
the Marathon County Circuit Court requesting judicial review of
the City Council's decision pursuant to Wis. Stat.
§ 125.12(2)(d). The complaint alleged that the City of Wausau
denied the Nowells due process of law, unfairly discriminated
against them, and precluded them from presenting evidence of
disparate treatment. The Nowells sought an order renewing their
license and damages for lost income.
¶11 The Nowells asserted that the standard of review was
de novo and that the circuit court should independently
determine whether they were entitled to have their license
renewed. After reviewing the parties' briefs on the issue, the
circuit court issued an oral ruling. Citing Marquette Savings &
Loan Assn. v. Village of Twin Lakes, 38 Wis. 2d 310, 156 N.W.2d
425 (1968), the circuit court stated that "when a circuit court
has the authority to review the action of a board or a
commission, that review shall be one of certiorari."
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No. 2011AP1045
Accordingly, the circuit court determined that its review was
circumscribed by the four prongs of certiorari:
[1] whether the defendant kept within its
jurisdiction; [2] whether it acted according to law;
[3] whether its action was arbitrary, oppressive, or
unreasonable, and represented its will and not its
judgment; and, [4] whether the evidence was such that
it might reasonably make the order of determination in
question.
It further determined that the Nowells' presentation of evidence
would be limited to those issues.
¶12 The circuit court held a two-day hearing on March 3
and 4, 2011. At the hearing, the Nowells advanced the argument
that the City had treated it differently than other similarly
situated establishments. The Nowells further argued that the
City had denied their license renewal because it wanted to give
their license to another business. In the alternative, the
Nowells asserted that the City did not issue their renewal
license because it disliked them and thus was exercising its
will and not its judgment. The circuit found that these
arguments went to the third prong of certiorari review (whether
the City's action was arbitrary, oppressive, or unreasonable,
and represented its will, not its judgment), and permitted the
Nowells to introduce extensive evidence on these points.
¶13 After considering the evidence, the court affirmed the
City's decision not to renew the Nowells' license. Specifically,
the circuit court determined that the City Council had acted
within its jurisdiction and according to law. Noting the "Girls
Gone Wild" event that led to the 15-day suspension, the
5
No. 2011AP1045
incidents involving disturbances of the peace, the two failed
compliance checks, and the 14 police service calls after October
2009, the circuit court also determined that there was
sufficient evidence for the City Council's decision.
¶14 The circuit court then turned to the question of
whether the City's actions were arbitrary, oppressive, or
unreasonable, and represented its will and not its judgment. It
concluded that the Nowells had failed to show that there were
similarly situated establishments that were treated differently.
Moreover, there was no compelling evidence to support the
Nowells' argument that the City was trying to pass their license
on to another business. Additionally, the circuit court
determined that the efforts by the City to work with the Nowells
showed that it was not trying to drive IC Willy's out of
business. Therefore, the Nowells' assertion that the City was
exercising its will and not its judgment was unpersuasive.
Accordingly, the circuit court affirmed the City's decision not
to renew the Nowells' license.
¶15 The court of appeals reversed. It concluded that Wis.
Stat. § 125.12(2)(d) requires the circuit court to employ a de
novo standard of review, independently determining whether a
licensee is entitled to renewal. Nowell v. City of Wausau, 2012
WI App 100, ¶8, 344 Wis. 2d 269, 823 N.W.2d 373.
¶16 The court of appeals based its analysis on the
requirement in Wis. Stat. § 125.12(2)(d) that the procedure on
review shall be the same as in civil actions. Id., ¶6. It
noted that the statute calls for pleadings, an answer, and a
6
No. 2011AP1045
hearing without a jury, and permits the circuit court to issue
subpoenas for witnesses. Id., ¶6. Citing State ex rel. Casper
v. Board of Trustees, 30 Wis. 2d 170, 176, 140 N.W.2d 301
(1966), and Merkel v. Village of Germantown, 218 Wis. 2d 572,
577, 581 N.W.2d 552 (Ct. App. 1998), the court stated that the
practices applicable to ordinary civil actions are not
applicable to certiorari. Id., ¶¶7, 8. It further noted that
statutes requiring certiorari usually specify how return of the
record is to be made. Id., ¶8. Thus, the court concluded that
the procedures in Wis. Stat. § 125.12(2)(d) were incompatible
with certiorari review. Id.
¶17 Recognizing that the circuit court had relied on
Marquette Savings & Loan, the court of appeals distinguished it
on the basis that it was decided before 1981, when Wis. Stat.
§ 125.12(2)(d) was enacted. Id., ¶10. It noted that this court
had issued a decision after 1981, State ex rel. Smith v. City of
Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901 (1987), applying a
certiorari analysis to licensing decisions, but determined that
that case was not controlling since the issue was not directly
raised or addressed. Id., ¶11 n.5.
¶18 The court of appeals acknowledged that its decision
"represents a substantial departure from ordinary judicial
review of a municipality's exercise of police power." Nowell,
344 Wis. 2d 269, ¶11. However, it stated that "[t]his was a
policy choice the legislature was entitled to make." Id., ¶12.
The court of appeals asserted that the short timeframes in Wis.
Stat. § 125.12(2)(d) supported its analysis. Id., ¶12 n.6.
7
No. 2011AP1045
II
¶19 In this case we are asked to determine the appropriate
standard of review for a court to apply when, pursuant to Wis.
Stat. § 125.12(2)(d), it reviews a municipal decision not to
renew an alcohol license. Resolution of this issue requires us
to interpret the language of the statute governing revocation,
suspension, and refusal to issue or renew alcohol licenses.
Statutory interpretation is a question of law, which we review
de novo, independently of the determinations rendered by the
circuit court and the court of appeals. Zwiefelhofer v. Town of
Cooks Valley, 2012 WI 7, ¶20, 338 Wis. 2d 488, 809 N.W.2d 362.
¶20 Statutory interpretation begins with examining the
language of the statute. State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. We interpret statutory language "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."
Id., ¶46.
¶21 When we are unable to discern the answer to our
inquiry by an examination of the language of the statute and its
context, we examine other interpretive aids. Id., ¶¶50, 51. We
may look to legislative history to ascertain the meaning of the
statute. Id., ¶51. An examination of our prior case law may
likewise illumine how we have previously interpreted or applied
the statute. See, e.g., State v. Robert K., 2005 WI 152, ¶30,
286 Wis. 2d 143, 706 N.W.2d 257.
III
8
No. 2011AP1045
¶22 We begin our analysis by examining the text of the
relevant statutory provisions. Wisconsin Stat. § 125.12
establishes the authority and the procedures for a municipality
or the Department of Revenue to revoke, suspend, or refuse to
issue or renew an alcohol license. Subsection (3) of the
statute gives licensees an opportunity for a hearing if a
municipality intends not to renew their license. It further
states that "judicial review shall be as provided in sub. (2)
(d)." Wis. Stat. § 125.12(3). Subsection (2)(d) provides in
relevant part:
The procedure on review shall be the same as in civil
actions instituted in the circuit court. The person
desiring review shall file pleadings, which shall be
served on the municipal governing body in the manner
provided in ch. 801 for service in civil actions and a
copy of the pleadings shall be served on the applicant
or licensee. The municipal governing body, applicant
or licensee shall have 20 days to file an answer to
the complaint. Following filing of the answer, the
matter shall be deemed at issue and hearing may be had
within 5 days, upon due notice served upon the
opposing party. The hearing shall be before the court
without a jury. Subpoenas for witnesses may be issued
and their attendance compelled. The decision of the
court shall be filed within 10 days after the hearing
and a copy of the decision shall be transmitted to
each of the parties. The decision shall be binding
unless it is appealed to the court of appeals.
Wis. Stat. § 125.12(2)(d).
¶23 As noted, the parties dispute whether the standard of
judicial review provided by Wis. Stat. § 125.12(2)(d) is
certiorari or de novo. "The commonly accepted meaning of a de
novo hearing is '[a] new hearing of a matter, conducted as if
the original hearing had not taken place.'" Stuligross v.
9
No. 2011AP1045
Stuligross, 2009 WI App 25, ¶12, 316 Wis. 2d 344, 763 N.W.2d 245
(quoting Black's Law Dictionary 738 (8th ed. 2004)). It gives no
presumption of correctness to the record below, according no
deference to the municipality's decision.
¶24 Statutory certiorari review, on the other hand,
accords a presumption of correctness and validity to the prior
decision. Ottman v. Primrose, 2011 WI 18, ¶48, 332 Wis. 2d 3,
796 N.W.2d 411. Thus, the scope of certiorari review is limited
to:
1) whether the [municipality] kept within its
jurisdiction; (2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive or
unreasonable and represented its will and not its
judgment; and (4) whether the evidence was such that
it might reasonably make the order or determination in
question.
State ex rel. Brookside Poultry Farms, Inc. v. Jefferson Cnty.
Bd. of Adjustment, 131 Wis. 2d 101, 119-20, 388 N.W.2d 593
(1986).
¶25 Although Wis. Stat. § 125.12(2)(d) dictates the
procedure for judicial review, it is silent on which standard of
review the circuit court is to employ. As discussed below, an
examination of the procedures required by the statute likewise
does not indicate whether a de novo or certiorari review was
intended.
¶26 Wisconsin Stat. § 125.12(2)(d) states that "the
procedure on review shall be the same as in civil actions."
This requirement is not inconsistent with certiorari review
because statutes, most notably Wis. Stat. § 801.02(5),
10
No. 2011AP1045
specifically permit the procedures for civil actions to be
applied to certiorari proceedings.
¶27 Wisconsin Stat. § 801.02(5) states that: "[a]n action
seeking a remedy available by certiorari . . . may be commenced
under sub. (1), by service of an appropriate original writ on
the defendant . . . or by filing a complaint demanding and
specifying the remedy . . . ." As we have previously stated,
the phrase "under sub. (1)" "refers to the summons and complaint
process specified in sec. 801.02(1) for the commencement of all
civil actions." State ex rel. Dep't of Natural Resources v.
Walworth Cnty. Bd. of Adjustment, 170 Wis. 2d 406, 415, 489
N.W.2d 631 (Ct. App. 1992) (citing Tobler v. Door Cnty., 158
Wis. 2d 19, 23, 461 N.W.2d 775 (1990)). Thus, contrary to the
court of appeals' assertions, practices applicable to ordinary
civil actions may apply to certiorari proceedings.
¶28 The court of appeals' conclusion that the procedures
for civil actions are incompatible with certiorari review was
based on two cases that are not persuasive here. The court of
appeals cited Merkel v. Village of Germantown, 218 Wis. 2d 572,
577, 581 N.W.2d 552 (Ct. App. 1998), for its statement that
"[t]he process for obtaining a writ of certiorari bears 'no
resemblance to the usual processes of courts . . . .'" Nowell,
344 Wis. 2d 269, ¶7. However, the discussion in Merkel was
limited to actions commenced by a writ.3 As noted above, "[t]he
3
Although Merkel was decided in 1998, its discussion of the
"processes" of a writ of certiorari relies on cases that predate
the 1981 amendments to chapter 801 providing for an alternative
to the writ. Merkel v. Village of Germantown, 218 Wis. 2d 572,
11
No. 2011AP1045
use of a writ is not necessary" when seeking the method of
certiorari. Wis. Stat. § 781.01; see also Judicial Council
Notes to § 801.02, Stats. Ch. 289, Laws of 1981 ("Any remedy
available by use of a writ may also be included in a judgment or
order rendered in an ordinary action in circuit court."). Thus,
Merkel does not imply that the reference to procedures in civil
actions contained in Wis. Stat. § 125.12(2)(d) precludes
certiorari review.
¶29 The court of appeals also cited State ex rel. Casper
v. Board of Trustees, 30 Wis. 2d 170, 176, 140 N.W.2d 301
(1966), for its statement that "[t]he practice[s] applicable to
ordinary civil actions [are] not applicable to either common-law
or statutory writs of certiorari." Nowell, 344 Wis. 2d 269, ¶8.
Again, Casper was about writ procedure. Notably, it was also
written prior to the amendments to Wis. Stat. § 801.02 that
explicitly allowed certiorari to be commenced through a summons
and complaint. Ch. 289, Laws of 1981. Thus, neither Merkel nor
Casper provides authority for the conclusion that review under
Wis. Stat. § 125.12(2)(d) must be de novo.
¶30 The provision in Wis. Stat. § 125.12(2)(d) permitting
reviewing courts to issue subpoenas for witnesses also fails to
shed light on whether de novo or certiorari review was intended.
Common law certiorari, which is available when there is no
577-78, 581 N.W.2d 552 (Ct. App. 1998) (citing Coleman v. Percy,
86 Wis. 2d 336, 272 N.W.2d 118 (Ct. App. 1978), aff'd, 96 Wis.
2d 578, 292 N.W.2d 615 (1980); State ex rel. Gaster v. Whitcher,
117 Wis. 668, 94 N.W. 787 (1903)).
12
No. 2011AP1045
express statutory method of review, is limited to the record
compiled by the municipality. Ottman, 332 Wis. 2d 3, ¶35.
However, when certiorari review is conducted pursuant to a
statute, the statute may limit or enlarge the scope of review.
Id., ¶36; see also State ex rel. Ruthenberg v. Annuity & Pension
Bd., 89 Wis. 2d 463, 473, 278 N.W.2d 835 (1979). Accordingly,
some statutes providing certiorari review explicitly permit the
reviewing court to take evidence. Brookside Poultry Farms, 131
Wis. 2d at 120; see, e.g., Wis. Stat. § 88.09; Wis. Stat.
§ 62.23(7)(e)(10); Wis. Stat. § 59.694(10).
¶31 The court of appeals relied on the "extraordinarily
short time" in Wis. Stat. § 125.12(2)(d) to support its
conclusion that the circuit court should have conducted a de
novo review. It noted that "[i]t is entirely possible that the
legislature, recognizing [that tavern owners are at risk of
losing their businesses], decided to provide a rapid,
politically detached de novo review of municipal licensing
decisions." Nowell, 344 Wis. 2d 269, ¶12. To the extent Wis.
Stat. § 125.12(2)(d) provides a short timeframe for review, it
is equally reasonable to interpret the timeframe as indicating
review by certiorari, which generally involves a more truncated
proceeding than a de novo review.
¶32 Likewise, the lack of instruction for return of the
record in Wis. Stat. § 125.12(2)(d) fails to indicate a
preference for de novo review. "'Return' is a long-standing
term of art that refers to the official record of the body whose
decision is being reviewed and which must be filed with the
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No. 2011AP1045
reviewing court in a certiorari action." Bergstrom v. Polk
County, 2011 WI App 20, ¶29, 331 Wis. 2d 678, 795 N.W.2d 482.
Wisconsin has a general statute requiring transmittal of the
record to the reviewing court for actions seeking certiorari
review, Wis. Stat. § 781.03(1). Accordingly, specific
instructions in Wis. Stat. § 125.12(2)(d) are not required to
ensure that the court has the record to review. Notably, other
statutes explicitly requiring certiorari review do not include
such instructions. See, e.g., Wis. Stat. § 70.47(13).
¶33 Having determined that the language of Wis. Stat.
§ 125.12(2)(d) does not establish what method of judicial review
to employ, we turn to its context to inform our analysis. See
Kalal, 271 Wis. 2d 633, ¶46. Here, the context of Wis. Stat.
§ 125.12(2)(d) suggests that certiorari review is appropriate.
¶34 Wisconsin Stat. § 125.12 establishes authority and
procedures for a municipality or the Department of Revenue to
make alcohol licensing decisions. The judicial review described
in Wis. Stat. § 125.12(2)(d) covers municipality decisions
"granting or failing to grant, suspending or revoking any
license, or the failure of any municipal governing body to
revoke or suspend any license for good cause." Wis. Stat.
§ 125.12(2)(d).
¶35 Although this case deals with non-renewal of a
license, the fact that Wis. Stat. § 125.12(2)(d) also covers
decisions to grant or deny a new license is significant.
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No. 2011AP1045
Wisconsin Stat. § 125.12(2)(ag)4 limits a municipality's ability
to revoke, suspend, or not renew a license to the reasons
4
Wisconsin Stat. § 125.12(2)(ag) states that a complaint
against a licensee may be based upon an allegation that:
1. The person has violated this chapter or municipal
regulations adopted under s. 125.10.
2. The person keeps or maintains a disorderly or
riotous, indecent or improper house.
3. The person has sold or given away alcohol
beverages to known habitual drunkards.
4. The person does not possess the qualifications
required under this chapter to hold the license.
5. The person has been convicted of manufacturing,
distributing or delivering a controlled substance or
controlled substance analog under s. 961.41(1); of
possessing, with intent to manufacture, distribute or
deliver, a controlled substance or controlled
substance analog under s. 961.41(1m); or of
possessing, with intent to manufacture, distribute or
deliver, or of manufacturing, distributing or
delivering a controlled substance or controlled
substance analog under a substantially similar federal
law or a substantially similar law of another state.
5m. The person has been convicted of possessing any
of the materials listed in s. 961.65 with intent to
manufacture methamphetamine under that subsection or
under a federal law or a law of another state that is
substantially similar to s. 961.65.
6. The person knowingly allows another person, who
is on the premises for which the license under this
chapter is issued, to possess, with the intent to
manufacture, distribute or deliver, or to manufacture,
distribute or deliver a controlled substance or
controlled substance analog.
6m. The person knowingly allows another person, who
is on the premises for which the license under this
chapter is issued, to possess any of the materials
15
No. 2011AP1045
enumerated therein. In contrast, a municipality's decision to
grant or deny a new license is unconstrained. See Wis. Stat.
§ 125.12(3m)5; see also Wis. Stat. § 125.51(1)(a) ("Every
municipal governing body may grant and issue 'Class A' and
'Class B' licenses . . . as the issuing municipal governing body
deems proper.").
¶36 The lack of restriction on municipality decisions to
grant or deny licenses is consistent with the historic view that
"the granting of a liquor license is a legislative function."
State ex rel. Ruffalo v. Common Council, 38 Wis. 2d 518, 524,
157 N.W.2d 568 (1968). It is well established that legislative
power may not be delegated to the circuit courts. City of
Beloit v. Town of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633
(1968). Permitting a circuit court to determine de novo whether
a liquor license should be granted would, in essence, improperly
transfer that legislative function from the municipality to the
court. In light of this context, it appears inappropriate to
interpret § 125.12(2)(d) to require de novo review.
listed in s. 961.65 with the intent to manufacture
methamphetamine.
7. The person received the benefit from an act
prohibited under s. 125.33(11).
5
Wisconsin Stat. § 125.12(3m) states, in full: "Refusals by
local authorities to issue licenses. If a municipal governing
body or duly authorized committee of a city council decides not
to issue a new license under this chapter, it shall notify the
applicant for the new license of the decision not to issue the
license. The notice shall be in writing and state the reasons
for the decision."
16
No. 2011AP1045
¶37 As part of context, we also consider surrounding and
closely related statutory provisions. One such provision, Wis.
Stat. § 125.12(5), empowers the Department of Revenue to revoke,
suspend, or refuse to renew alcohol permits after a hearing.
The statute specifies that such action is a contested case under
chapter 227. See Wis. Stat. § 227.52(1). Judicial review of
contested cases is generally by certiorari. Wisconsin's
Environmental Decade, Inc. v. Public Service Comm'n, 79 Wis. 2d
161, 170, 255 N.W.2d 917 (1977). It would seem inconsistent to
interpret Wis. Stat. § 125.12(2)(d) to provide for de novo
review of a municipality's decision on an alcohol license in
light of the fact that Department of Revenue permit decisions
under Wis. Stat. § 125.12(5) are reviewed via certiorari.
¶38 Despite the indications that certiorari review is the
appropriate method of judicial review, neither the plain
language of Wis. Stat. § 125.12(2)(d) nor its context is
dispositive on whether certiorari or de novo review is required.
¶39 Here, the legislative history is informative. In 1981,
the legislature created Chapter 125, which combined the
regulations governing fermented malt beverages (Wis. Stat.
§§ 66.054-66.057) with the regulation of intoxicating liquors
(ch. 176). Prior to this combination, Wis. Stat. § 66.054(14)
provided for judicial review and used language similar to that
which is now found in § 125.12(2)(d). In contrast, Chapter 176,
which previously governed intoxicating liquors, made no mention
of a standard for judicial review.
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No. 2011AP1045
¶40 When the legislature combined those regulations into
Chapter 125, it included a prefatory note stating:
This bill is the product of the legislative council's
special committee on the recodification of alcohol
beverage laws. The special committee was directed
under the terms of 1977 assembly joint resolution 82,
to undertake the recodification of the laws governing
the sale and taxation of alcohol beverages, but to
refrain from making substantive revisions of those
laws.
Ch. 79, Laws of 1981 at 649. The note explains that the bill
repeals the two prior chapters regulating alcohol beverages and
combines them into the new chapter 125. Id. at 650. In
addition to the reorganization, the bill made changes to
"reflect current interpretations and practices." Id.
¶41 While there are no cases prior to 1981 interpreting
the type of review courts applied to license decisions under
Wis. Stat. § 66.054(14), courts reviewing municipal decisions on
liquor licenses under Chapter 176 used certiorari review. See
Marquette Savings & Loan, 38 Wis. 2d at 316 (standard of review
for actions of a Village relative to the issuance of a Class B
liquor license was certiorari); State ex rel. Ruffalo, 38 Wis.
2d at 525 (review of a denial of a renewal of a Class B liquor
license was limited to "determining whether the action of the
licensing authority was arbitrary, capricious or
discriminatory."); Boroo v. Town Board of Barnes, 10 Wis. 2d
153, 160-61, 102 N.W.2d 238 (1960) (courts should review a
municipality's decision to deny a renewal Class B liquor license
to determine if the municipality acted capriciously and there
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No. 2011AP1045
was an abuse of discretion); Rawn v. City of Superior, 242 Wis.
632, 636-37, 9 N.W.2d 87 (1943) (the decision to grant or deny a
Class B liquor license is committed to the sound discretion of
the municipal governing body).
¶42 In this context, the legislature's statements that it
was not making substantive changes to the laws governing the
sale of alcohol and that the changes were meant to reflect
current interpretations and practices evince an intent that
certiorari review under Wis. Stat. § 125.12(d)(2) is the proper
standard.
¶43 Consistent with this intent, decisions issued by this
court and the court of appeals after Wis. Stat. § 125.12(2)(d)
was enacted have utilized certiorari review when reviewing
municipality licensing decisions. See, e.g., State ex rel.
Smith v. City of Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901
(1987) (analyzing the definition of a habitual law offender in
the context of a certiorari appeal from a decision to not renew
a Class B alcohol license); Park 6 LLC v. City of Racine, 2012
WI App 123, ¶6, 344 Wis. 2d 661, 824 N.W.2d 903 (analyzing
validity of a liquor license revocation by the City of Racine
under a certiorari review standard); Questions, Inc. v. City of
Milwaukee, 2011 WI App 126, ¶13, 336 Wis. 2d 654, 807 N.W.2d 131
(court of appeals, under the assumption that review was by
certiorari, analyzed the renewal of a Class B alcohol license).6
6
Furthermore, as detailed by the amici, certiorari review
has generally been the standard employed by the circuit courts.
In Milwaukee, all seven of the licensees seeking judicial review
since 2010, but prior to Nowell, received certiorari review. In
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No. 2011AP1045
¶44 Indeed, as recently as last year, this court applied a
certiorari analysis in a review of a municipality's decision not
to renew an alcohol license. Wisconsin Dolls, LLC v. Town of
Dell Prairie, 2012 WI 76, ¶¶18-19, 342 Wis. 2d 350, 815 N.W.2d
690. While the standard of review was not directly at issue in
Wisconsin Dolls, it was the basis for our analysis.
¶45 Furthermore, those decisions are supported by strong
public policy. Historically, regulation of the sale of alcohol
has been viewed as a matter of local concern. State ex rel.
Smith v. City of Oak Creek, 139 Wis. 2d at 800-01. It is part
of the police power granted to the city council under Wis. Stat.
§ 62.11(5)7, which may "be limited only by express language." See
Odelberg v. City of Kenosha, 20 Wis. 2d 346, 349, 122 N.W.2d 435
(1963).
Racine, of the five appeals taken to the circuit court since
2006, four were conducted pursuant to the certiorari standard.
The other appeal, which was taken after Nowell, received a de
novo review. However, at least one case issued by the Dane
County Circuit Court, Bourbon Street Grille, Inc. v. City of
Monona, 09-CV-862 (Wis. Cir. Ct. Dane Cnty. Nov. 16, 2009), has
used de novo review.
7
Wisconsin Stat. § 62.11(5) provides: "Powers. Except as
elsewhere in the statutes specifically provided, the council
shall have the management and control of the city property,
finances, highways, navigable waters, and the public service,
and shall have power to act for the government and good order of
the city, for its commercial benefit, and for the health,
safety, and welfare of the public, and may carry out its powers
by license, regulation, suppression, borrowing of money, tax
levy, appropriation, fine, imprisonment, confiscation, and other
necessary or convenient means. The powers hereby conferred shall
be in addition to all other grants, and shall be limited only by
express language."
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No. 2011AP1045
¶46 As the court of appeals noted, interpreting Wis. Stat.
§ 125.12(2)(d) to require a de novo review "represents a
substantial departure from ordinary judicial review of a
municipality's exercise of the police power." Nowell, 344 Wis.
2d 269, ¶11. A municipality's exercise of its police power has
traditionally been accorded deference by reviewing courts. See
Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis. 2d
637, 643, 96 N.W.2d 85 (1959). As this court has explained,
when reviewing the exercise of that power:
It is to be remembered that we are dealing with one of
the most essential powers of government, one that is
the least limitable. It may, indeed, seem harsh in its
exercise, usually is on some individual, but the
imperative necessity for its existence precludes any
limitation upon it when not exerted arbitrarily.
La Crosse Rendering Works, Inc. v. City of La Crosse, 231 Wis.
438, 448, 285 N.W. 393 (1939) (citing Chicago & Alton R.R. Co.
v. Tranbarger, 238 U.S. 67, 78 (1915)).
¶47 Both this court and the U.S. Supreme Court have
recognized the particularly strong nature of the police power to
regulate alcohol: "the states, under the broad sweep of the
Twenty-first Amendment, are endowed with 'something more than
the normal' police power in regulating the sale of liquor in the
interests of the public health, safety, morals, and general
welfare." State ex rel. Grand Bazaar Liquors, Inc. v. City of
Milwaukee, 105 Wis. 2d 203, 217, 313 N.W.2d 805 (1982) (citing
California v. LaRue, 409 U.S. 109, 114 (1972)). Through
statutory authority, the State has granted this power to the
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No. 2011AP1045
municipalities. See Wis. Stat. § 62.11(5). This court has
further explained that:
[T]he justifications for the near-plenary police power
that a unit of government has to regulate alcohol
sales . . . may be summed up as resting upon the
fundamental principle that society has an inherent
right to protect itself; . . . that the sobriety,
health, peace, comfort, and happiness of society
demand reasonable regulation, if not entire
prohibition, of the liquor traffic. Unrestricted, it
leads to drunkenness, poverty, lawlessness, vice, and
crime of almost every description. Against this
result society has the inherent right to protect
itself . . . .
Eichenseer v. Madison-Dane Cnty. Tavern League, 2008 WI 38, 54,
308 Wis. 2d 684, 716, 748 N.W.2d 154 (quoting Odelberg, 20 Wis.
2d at 350). These policy considerations suggest that certiorari
review is appropriate as it serves to keep alcohol licensing
decisions within the control of the municipality by according
deference to its decisions.
¶48 For the reasons discussed above, we conclude that
certiorari is the proper standard of review for a licensing
decision under Wis. Stat. § 125.25(2)(d). In such proceedings,
circuit courts are properly limited to determining:
(1) whether the [municipality] kept within its
jurisdiction; (2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its
judgment; and (4) whether the evidence was such that
it might reasonably make the order or determination in
question.
State ex rel. Brookside Poultry Farms, 131 Wis. 2d at 119-20.
Although Wis. Stat. § 125.12(2)(d) dictates the procedures a
circuit court is to follow, it does not indicate that the issues
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No. 2011AP1045
the circuit court is to address have changed. As we discussed
in Ottman, "unless the statute providing for certiorari further
limits or enlarges the scope of review, the reviewing court
makes the same four inquiries that are made under common law
certiorari review." Ottman, 332 Wis. 2d 3, ¶36. Whereas Wis.
Stat. § 125.12(2)(d) does not enlarge the scope of issues the
circuit court is to address, the evidence the court takes should
be relevant to one of the four prongs of certiorari review.8 As
illustrated by the facts of this case, such an approach accords
a licensee broad latitude to introduce evidence under prong
three. At the same time, it accords the appropriate deference
to the municipality's exercise of its police powers.
¶49 In this case the circuit court was correct to conduct
a certiorari review and address each of the four prongs. On
8
We note that in Klinger v. Oneida County, 149 Wis. 2d 838,
847, 440 N.W.2d 348 (1989), we suggested that when conducting
certiorari review under Wis. Stat. § 59.99(10) it may be
appropriate to take evidence:
when the record before the Board is incomplete because
the aggrieved party was refused an opportunity to be
fully heard or the Board excluded relevant evidence;
when good and sufficient cause is shown for the
failure to have offered the evidence to the Board;
when the record presented to the circuit court does
not contain all the evidence actually presented to the
Board; when the Board's record fails to present the
hearing in sufficient scope to determine the merits of
the appeal; and when new evidence is discovered after
the Board's proceedings were closed.
Our decision here is not meant to affect the analysis in
Klinger, which was based on different statutory language and
which was discussing the circumstances in which evidence could
be taken, as opposed to the issues the evidence should address.
23
No. 2011AP1045
prongs one and two, the court determined that the City Council
had complied with Wis. Stat. § 125.12 and, thus, had acted
within its jurisdiction and according to law. Pursuant to prong
four, the circuit court considered the evidence presented to the
Committee and determined that there was sufficient evidence for
the City Council's decision.
¶50 The circuit court devoted a substantial amount of
time to considering the third prong of certiorari. Consistent
with the statutory requirements, it gave the Nowells broad
latitude to introduce evidence relating to their disparate
treatment argument. Likewise, it permitted them to present
evidence relating to their arguments that the City did not renew
their license because it did not like them and because it wanted
to give their license to another business.
¶51 After receiving this evidence, the court determined
that the Nowells had failed to show that there were similarly
situated establishments that were treated differently. It also
determined that there was no compelling evidence to support the
Nowells' argument that the City was trying to pass their license
on to another business or that the City was trying to drive IC
Willy's out of business. Therefore, the court concluded that the
City had reasonably exercised its judgment, and affirmed the
City's decision not to renew the Nowells' license.
¶52 We agree with the circuit court. The City Council
acted within its jurisdiction and followed Wis. Stat. § 125.12.
The Nowells did not show that the municipality treated them
differently than similarly situated establishments, or show that
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No. 2011AP1045
the City Council exercised its will and not its judgment.
Further, for the reasons stated by the circuit court we also
conclude that there was sufficient evidence to support the City
Council's decision not to renew the Nowells' license.
¶53 The circuit court's review was correct given the
deference due to the municipality's exercise of its police power
and the fact that alcohol licensing decisions are a matter of
local concern. As such, the court of appeals erred when it
determined that Wis. Stat. § 125.12(2)(d) requires a circuit
court to conduct a de novo review of a municipality's decision
not to renew an alcohol license.
IV
¶54 In sum, although the statute does not expressly
address which standard of review is to be applied, we are
persuaded that an examination of the legislative history, our
prior case law, and the public policy underlying the deference
due to a municipality's alcohol licensing decisions militate in
favor of certiorari review. Therefore, we conclude that
certiorari is the correct standard of review for a court to
apply when, pursuant to Wis. Stat. § 125.12(2)(d), it reviews a
municipal decision not to renew an alcohol license.
Accordingly, we reverse the court of appeals.
By the Court.–The decision of the court of appeals is
reversed.
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No. 2011AP1045
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