Appeals court clarifies scope of certiorari review in housing case
The appeals court ruled that a circuit court did not have the power to grant the equitable relief the petitioner sought because certiorari review of an agency decision is limited.
By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin
Sept. 23, 2011 – A woman claiming wrongful termination of her rental housing subsidy asked the circuit court, on judicial review of the housing authority’s decision, to reinstate and restore the subsidies.
But the District II Wisconsin Court of Appeals in Guerreo v. City of Kenosha Housing Authority, 2010AP2305 (Sept. 21, 2011), clarified that a court on certiorari review did not have the authority to order the relief requested.
The City of Kenosha Housing Authority Board of Commissioners (the Board) terminated Norma Guerrero’s public housing assistance in 2007. She filed a judicial appeal of the administrative proceedings under Wis. Stat. section 68.13, and a circuit court upheld the decision.
Under section 68.13, certiorari review is limited to whether the agency kept within its jurisdiction, acted according to law, whether the agency’s action was arbitrary, oppressive, or unreasonable, and whether the agency’s decision was reasonable given the evidence presented.
On appeal, an appeals court ruled that the Board’s termination notice was insufficient in violation of Guerrero’s due process rights and remanded the case to the circuit court to grant the appropriate relief.
On remand, the circuit court reversed the Board’s decision to terminate and remanded the case to the Kenosha Housing Authority (KHA) “for further proceedings that are consistent with this remand and the decision of the Court of Appeals in relation to any future hearing that may be scheduled to terminate. …” Guerrero appealed the circuit court’s remand order.
She argued that the circuit court should have reinstated her housing benefits and restored her past rental subsidies rather than remand the case to the KHA. But the appeals court clarified that the circuit court did not have the power to grant the equitable relief she sought.
In an opinion written by Judge Lisa Neubauer, the appeals court explained that a certiorari court can reverse an agency’s decision and remand for a new hearing, but “cannot order the agency to perform a certain act.”
“The circuit court’s role is supervisory – here – providing a review of the KHA’s administrative procedure to ensure that the notice and hearing comport with due process,” Judge Neubauer wrote. “The scope of certiorari extends to questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of, as well as questions relating to the irregularity of the proceedings.’
The appeals court refused to expand the scope of certiorari review on public policy grounds, and clarified that outright reversal of the agency’s decision would only be appropriate if the due process violation could not be cured. The court noted that a second hearing would also be subject to review, and that section 68.13 does not prevent a person from seeking damages under 42. U.S.C. section 1983.