Unsworn Complaint was a Fundamental Defect in Liquor License Case

By 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 sworn.

In Park 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 “baseless harassment.”

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.