Thomas D. Nowell v. City of Wausau
2013 WI 88
Wis.2013Background
- IC Willy’s (owned by Thomas and Suporn Nowell) received a Class B alcohol license in Oct. 2009; police thereafter received multiple noise and conduct complaints, including nudity at a “Girls Gone Wild” event.
- The Nowells accepted a voluntary 15‑day suspension and submitted a corrective 16‑point plan, but the City later notified them it would not renew the license based on complaints, citations, failed compliance checks, and alleged failure to implement corrective steps.
- The City’s Public Health and Safety Committee held a multi‑day hearing, recommended non‑renewal, and the City Council adopted that recommendation.
- The Nowells sued in circuit court under Wis. Stat. §125.12(2)(d), arguing the court should review the non‑renewal de novo and alleging due process and disparate‑treatment claims; the circuit court instead applied certiorari review and affirmed the City’s decision.
- The court of appeals reversed, holding §125.12(2)(d) requires de novo review. The Wisconsin Supreme Court granted review to decide the proper standard of judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for judicial review under Wis. Stat. §125.12(2)(d) of a municipality’s refusal to renew an alcohol license | Nowell: statute’s procedural language (pleadings, answer, hearing without jury, subpoenas, fast timelines) requires a de novo hearing (no deference to municipality). | City of Wausau: statute does not change traditional certiorari review; certiorari is appropriate given legislative history, case law, and deference to municipal police power. | Certiorari is the correct standard: review limited to whether municipality stayed within jurisdiction, acted according to law, acted arbitrarily/oppressively/unreasonably (will vs. judgment), and whether evidence could reasonably support the decision. |
| Scope of evidence the circuit court may consider under §125.12(2)(d) | Nowell: de novo review permits full independent factfinding and broader admission of evidence. | City: statute’s procedural allowances (e.g., subpoenas) do not expand issues beyond certiorari’s four prongs; evidence admitted must relate to those prongs. | Circuit courts may take evidence relevant to the four certiorari prongs; statute’s procedures do not enlarge the substantive scope of review beyond certiorari. |
| Effect of §125.12(2)(d)’s civil‑procedure language and short timelines | Nowell: civil‑action procedures and short deadlines indicate legislature intended a rapid, detached de novo review. | City: civil procedures can be applied to certiorari (statutory amendments permit summons/complaint initiation); short timelines are consistent with a truncated certiorari process. | Civil‑procedure terms and timelines do not compel de novo review; they are compatible with statutory certiorari practice. |
| Whether circuit court’s certiorari review here was correct on the merits | Nowell: nonrenewal unlawful or discriminatorily applied; evidence should be reassessed de novo. | City: record supports City’s exercise of judgment; Nowells failed to prove disparate treatment or capricious action. | Circuit court correctly applied certiorari, found City acted within jurisdiction, according to law, not arbitrary, and had sufficient evidence to support nonrenewal; affirmed. |
Key Cases Cited
- Marquette Savings & Loan Assn. v. Village of Twin Lakes, 38 Wis. 2d 310 (recognizes certiorari as standard for reviewing municipal licensing actions)
- State ex rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101 (sets out four‑part certiorari test)
- Ottman v. Primrose, 332 Wis. 2d 3 (2011) (explains that statutory certiorari may limit or enlarge common‑law certiorari and presumption of correctness)
- State ex rel. Ruffalo v. Common Council, 38 Wis. 2d 518 (confirms denial/renewal of liquor licenses is reviewed for caprice/abuse of discretion)
- Wisconsin Dolls, LLC v. Town of Dell Prairie, 342 Wis. 2d 350 (2012) (applied certiorari analysis to a municipal decision not to renew an alcohol license)
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (statutory interpretation principles used to analyze §125.12(2)(d))