June 27, 2017 – Persons aggrieved by highway orders must file a challenge within 30 days of receiving a “final determination.” Recently, the Wisconsin Supreme Court revived a petition that challenged a highway order. But a majority could not agree when the 30-day clock starts ticking.
Specifically, in Pulera v. Town of Richmond, 2017 WI 61 (June 20, 2017), the supreme court (4-2) reversed circuit court orders that dismissed certiorari petitions as untimely, but a majority of the court did not agree on the reasoning for that result.
Three justices concluded that a party seeking certiorari review of a town board’s decision to lay out, alter, or discontinue a highway must file a petition for certiorari review “within thirty days of the register of deeds recording the order.”
One justice concurred but did not join the lead opinion’s reasoning. Two justices dissented. And Justice Daniel Kelly did not participate. Thus, the decision does not foreclose a future challenge, since the court did not speak with a majority voice on reasoning.
The Statute and Highway Order
Under Wis. Stat. section 68.13(1), “[a]ny party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision.”
The statutes do not define or explain when a “final determination” is made or when an aggrieved party has “received” the final determination. Thus, the supreme court stepped in to decide that the final determination and receipt both occur upon recording.
In 2014, the Rock County Highway Department made changes to an intersection of highways that bordered the county line between Rock and Walworth counties. It did so without notifying the Town of Richmond, which was impacted by the change.
On Sept. 9, 2014, Richmond (Walworth County) and the Town of Johnstown (Rock County) held a joint meeting and retroactively approved the changes, which involved construction of a new intersection and discontinuance of two other highways.
Richmond recorded the highway order with the Walworth County Register of Deeds on Oct. 3, 2014. On Nov. 3, Margaret Pulera filed a certiorari petition in the Walworth County Circuit Court seeking judicial review of Richmond’s highway order.
Johnstown recorded the highway order in Rock County on Nov. 3, 2014. On. Dec. 1, 2014, Pulera filed a certiorari petition in the Rock County Circuit Court. Both circuit courts dismissed Pulera’s case as untimely, for different reasons.
The Walworth County Circuit Court ruled that the 30-day period for filing the certiorari petition was triggered when the town boards voted to approve changes to the highway intersection. The Rock County Circuit Court ruled that the 30-day period began when Pulera had actual notice of the town board’s decision to alter the highways.
The state appeals court certified the case for supreme court review, noting three competing interpretations with positive aspects but “significant flaws.”
In a lead opinion, three justices ruled that the 30-day period for filing a certiorari petition is triggered when a highway order is filed with the register of deeds and no earlier.
Chief Justice Patience Roggensack noted that a party may not know whether they are aggrieved by a highway order until the specifics are identified in final form, and a highway order does not take final form until it is filed with the register of deeds.
At the same time, Chief Justice Roggensack noted, “[t]he register of deeds recording a highway order gives the public receipt of the proposed highway alteration.”
“The practical benefits of concluding that recording the highway order starts the thirty-day period for judicial review are significant,” she wrote. “Specifically, it provides a clear and definite triggering event for commencement of the thirty-day period.”
All parties will know exactly when the 30-day period begins to run, and “factual disputes as to the date by which a certiorari action should have been filed will be less frequent.”
Under that conclusion, Roggensack ruled that Pulera’s certiorari petitions were timely filed, reversing the circuit courts. Pulera’s challenge can now proceed in circuit court.
Justice Rebecca Bradley wrote a concurring opinion. She joined the mandate to reverse the circuit court decisions but said, “I cannot join its reasoning.”
R. Bradley noted that section 68.13(1) allows “a party to a proceeding” resulting in a final determination to seek review thereof by certiorari within 30 days of receipt of the final determination. But she concluded that Pulera was not “a party to the proceeding.”
“Here, Pulera was not a ‘party to a proceeding,’ there was no set process for sending her (or anyone else) a ‘final determination,’ and no procedure assured any person’s ‘receipt’ of the final determination,” Justice R. Bradley wrote.
Justice R. Bradley said the lead opinion created its own procedure governing the deadline for filing a petition. “Although the lead opinion attempts to make the language of the statute fit these circumstances, I cannot join its statutory analysis,” she wrote.
She noted that an aggrieved party must “receive” a final determination, and nothing is received when a highway order is filed with the register of deeds. Pulera received the orders, Bradley noted, because she asked each town to send them to her.
“Whatever ‘receipt’ means in the statute, the general recording of a document at the register of deeds cannot possibly constitute receipt by any person aggrieved by a highway order. If this is what the legislature had in mind it could have plainly said so,” wrote Justice R. Bradley, who says the statutory language simply does not work.
“I write to urge the legislature to enact a statute outlining timeframes for appealing the issuance of a highway order as well as the denial of a highway order,” Justice R. Bradley wrote. “Perhaps the legislature will adopt the trigger date the lead opinion suggests, but the legislature rather than this court should choose.”
Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, sided with the towns that argued the event that triggers the 30-day period for certiorari review is the “date of the town vote” on the highway order, not the date of filing with the register of deeds.
“The lead opinion errs in failing to acknowledge the flaws of the interpretation it adopts,” Justice A.W. Bradley wrote. “In particular, adopting the date of the recording of the highway order addresses only half of the problem.
“It provides no triggering event for certiorari review when a town board issues no highway order because it votes against a proposed change. Additionally, the necessary notice that will be provided by the lead opinion’s procedure is unpredictable at best and illusory at worst.”
A.W. Bradley noted that setting the date of the town vote does not “fit perfectly with the statutory language” but would give notice to the largest number of interested parties.
Justice A.W. Bradley reiterated that a majority did not agree on reasoning, meaning the case has no precedential value. Four justices only agreed that the circuit courts’ decision to dismiss the case in favor of the towns should be reversed.
Concluding that the board vote triggered that 30-day period for filing a certiorari petition, the dissenters would have upheld the circuit courts’ decision to dismiss as untimely.