Acevedo v. City of Kenosha, 793 N.W.2d 500

Acevedo filed a certiorari action Sept. 23, 2009 in Kenosha County Circuit Court naming the City of Kenosha as defendant.
The City moved to dismiss, arguing Acevedo’s claim should have been against the City of Kenosha Zoning Board of Appeals (ZBA) and that the City was not a proper party.
Acevedo amended to add the ZBA as a defendant after the City’s dismissal motion.
The circuit court granted the City’s dismissal motion, ruling the City was not a proper party to certiorari review of the Board’s decision.
Acevedo appeals, arguing the City could be properly named and that certiorari review may target the municipality and board.
The board had issued an August 25, 2009 order requiring Acevedo to cease daycare operations and remove a ground sign; prior actions included zoning interpretations and cease-and-desist communications regarding a second daycare at the same property.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City is the proper party in a certiorari challenge to the Board’s decision.	Acevedo argues the municipality can be named in certiorari to review board actions.	City contends the action should be against the ZBA, not the City itself.	The City is not a proper party; the Board is the correct party to be reviewed.
Whether statutes permit certiorari against the board’s decision with the proper party named.	Acevedo relies on statute to name the municipality.	Statutes direct the board as the decision-maker to be reviewed.	Statutes require review of the board’s decision; the board is the proper party.
Whether City News & Lake City support Acevedo’s approach or are distinguishable.	Acevedo cites these cases for naming the municipality in certiorari.	These cases are distinguishable and do not authorize naming the city here.	They are distinguishable and do not control the outcome.
Whether the Pleva and related authorities alter who may be named in certiorari.	Pleva suggests board-municipality intertwinings may matter.	Pleva is distinguishable on its facts and not controlling here.	Pleva is distinguishable and does not change the proper-party rule here.

City News & Novelty, Inc. v. City of Waukesha, 231 Wis.2d 93 (Ct. App. 1999) (certiorari review chain; naming municipality only distinguished from proper-party issue)
Lake City Corp. v. City of Mequon, 207 Wis.2d 155 (Wis. 1997) (master plan vs official map; not controlling on proper-party issue)
Kulike v. Town Clerk, 132 Wis. 103 (1907) (writ must target the board or body whose acts are reviewed)
Weber v. City of Cedarburg, 129 Wis.2d 57 (1986) (standard for reviewing certiorari; question of law)
Torres v. Dean Health Plan, Inc., 2005 WI App 89 (Wis. Ct. App. 2005) (tests sufficiency of complaint in certiorari context)
Driehaus v. Walworth County, 2009 WI App 63 (Wis. Ct. App. 2009) (distinguishes board review context; factual alignment matters)
Marris v. City of Cedarburg, 176 Wis.2d 14 (1993) (board/municipality litigation considerations in certiorari)
Pleva v. Norquist, 195 F.3d 905 (7th Cir. 1999) (federal context; distinguished on facts)
State ex rel. Gaster v. Whitcher, 117 Wis. 668 (1903) (establishes certiorari supervisory role)
State ex rel. Sahagian v. Young, 141 Wis. 2d 495 (Ct. App. 1987) (certiorari scope over administrative action)