Unsworn Complaint was a Fundamental Defect in Liquor License Case
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Oct. 12, 2012 – A police chief’s unsworn complaint to
revoke a Racine nightclub’s liquor license was dead on arrival,
according to a state appeals court.
Under Wis. Stat. section 125.12(2)(ag), any resident of a municipality issuing
liquor licenses can file a sworn
written complaint for revocation that alleges a license-holder is
violating local laws, maintains a disorderly or riotous establishment,
or knowingly serves habitual “drunkards.”
Racine Police Chief Kurt Whalen submitted an unsworn complaint alleging
that Park 6, owned by Thomas Holmes, constituted a disorderly house and
was violating state and local laws.
The Public Safety and Licensing Committee recommended that
Holmes’s liquor license be revoked, and Racine’s Common
Council revoked it. However, a circuit court ruled that Holmes was
deprived of due process rights because the complaint was not properly
6 LLC v. City of Racine, 2011AP2282 (Oct.
10, 2012), a three-judge panel of the District II Wisconsin Court of
Appeals affirmed, concluding the defect was a fundamental error
precluding the Common Council’s jurisdiction to revoke
Holmes’s liquor license.
The appeals panel rejected the city’s argument that the
formalities in administrative proceedings are sometimes excusable as
technical defects if procedurally cured.
“An oath or swearing requirement is important. The solemnity
imposed by an oath requires the actor to stop and consider the
allegations he or she is making,” wrote Chief Appeals Court Judge
Richard Brown, noting that requiring the sworn oath prevents
The appeals panel also noted that Chief Whalen was acting in his
capacity as a private citizen, not police chief, and “[s]afeguards
applicable to Whalen as chief of police do not cloak him with
trustworthiness when he acts as a private citizen.”
Rejecting the requirement as a “legal trapping,” Chief
Judge Brown explained that the oath requirement preserves minimal due
process rights protecting unwarranted attacks.