Smith v. City of Milwaukee

2014 WI App 95, 854 N.W.2d 857, 356 Wis. 2d 779, 2014 Wisc. App. LEXIS 674
CourtCourt of Appeals of Wisconsin
DecidedAugust 26, 2014
DocketNo. 2013AP2599
StatusPublished
Cited by8 cases

This text of 2014 WI App 95 (Smith v. City of Milwaukee) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. City of Milwaukee, 2014 WI App 95, 854 N.W.2d 857, 356 Wis. 2d 779, 2014 Wisc. App. LEXIS 674 (Wis. Ct. App. 2014).

Opinion

CURLEY, PJ.

¶ 1. The City of Milwaukee appeals the judgment vacating the decision of the City of Milwaukee Common Council not to renew Robert F. Smith's Class B tavern license for Mixx Night Club. After the City decided not to renew Smith's license, the trial court — reviewing the nonrenewal decision de novo, pursuant to Nowell v. City of Wausau, 2012 WI App 100, 344 Wis. 2d 269, 823 N.W.2d 373 (Nowell I), which has since been overturned, see Nowell v. City of Wausau, 2013 WI 88, 351 Wis. 2d 1, 838 N.W.2d 852 (Nowell I I) — vacated the City's decision and instead ordered that the City renew Smith's license and suspend it for fifteen days. On appeal, the City, arguing that we should review its decision under the four-part certiorari review [783]*783outlined in Nowell II, contends that its nonrenewal must be affirmed because it meets the four-part Nowell II test. In other words, the City argues that its decision: kept within its jurisdiction; was lawful; was not arbitrary, oppressive, unreasonable or representative of its will rather than its judgment; and was supported by substantial evidence. Smith, on the other hand, argues that because Nowell I was in effect when the trial court reviewed the City's decision de novo, we should not apply the Nowell II standard of review here, but should instead review and affirm the trial court's decision rather than the City's. We agree with the City, and therefore must reverse the trial court and affirm the City's decision not to renew Smith's Class B tavern license.

Background

¶ 2. On December 11, 2012, Smith applied to renew his Class B tavern license for Mixx Nightclub. A hearing before the City License Committee was scheduled, and Smith was provided with a number of documents relevant to the hearing, including a police synopsis report summarizing numerous disturbances requiring police presence at Mixx between March 2011 and October 2012, and email correspondence from neighbors requesting that the club's license be suspended or revoked due to recurrent loud noise and violence in and around the club.

¶ 3. At Smith's license-renewal hearing, which took place on January 3, 2013, the police report summarizing the many disturbances at Mixx was read into the record, and Smith, his mother, and other witnesses testified. Smith acknowledged that closing time at Mixx was "pretty hectic," and agreed that one of the disturbances at the club involved a gun.

[784]*784¶ 4. When the hearing concluded, the License Committee voted unanimously to recommend to the Common Council that Mixx's tavern license not be renewed. The Committee then prepared its findings of fact and conclusions of law. Thereafter, Smith filed his objections with the Common Council.

¶ 5. Shortly thereafter, on January 15, 2013, the Common Council adopted the nonrenewal recommendation of the License Committee and decided not to renew Smith's license. Smith then appealed to the trial court, which vacated the Common Council's decision.

¶ 6. The trial court vacated the Common Council's decision following a trial de novo, concluding that while Mixx Nightclub was disorderly or riotous contrary to Wis. Stat. § 125.12(2)(ag)2. (2011-12),1 the Common Council's decision was excessive. The trial court instead imposed a fifteen-day suspension on the nightclub. The trial court ordered the trial de novo pursuant to this court's decision in Nowell I, which held that review of municipal licensing decisions under Wis. Stat. § 125.12(2)(d) was to be conducted de novo, see Nowell I, 344 Wis. 2d 269, ¶¶ 1, 12-13. As noted, however, Nowell I was later overturned by the supreme court, which held that certiorari is the correct standard of review. See Nowell II, 351 Wis. 2d 1, ¶¶ 3, 48.

¶ 7. The City now appeals the trial court's decision. Additional facts will be developed below.

Analysis

¶ 8. On appeal, the City argues that its decision not to renew Smith's tavern license must be affirmed because it meets the four-part certiorari criteria out[785]*785lined in Nowell II. In other words, the City argues that its decision: kept within its jurisdiction; was lawful; was not arbitrary, oppressive, unreasonable or representative of its will rather than its judgment; and was supported by substantial evidence. Smith, on the other hand, argues that because Nowell I was in effect when the trial court reviewed the City's decision de novo, we should not apply the Nowell II standard of review or review the City's decision here, but should instead review and affirm the trial court's decision.

(1) The correct standard to he applied is the certiorari standard.

¶ 9. We turn first to the parties' arguments regarding the proper standard of review. Smith argues that we should not apply the certiorari standard of review to the City's decision, as mandated by Nowell II, because it was not the law at the time the case was heard before the trial court. Rather, according to Smith, Nowell II should only apply prospectively, and we should concern ourselves instead with the trial court's decision. The City, in contrast, argues that Nowell II should apply here because retroactive application of a rule of law is the general rule and there is no good reason to deviate from the general rule in this case. We agree with the City.

¶ 10. Like all courts, we generally follow "the doctrine that a new rule of law applies retroactively." See Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶ 44, 339 Wis. 2d 125, 810 N.W.2d 465. The doctrine, known as the "Blackstonian doctrine," is usually implicated in cases in which the court decides to overrule or [786]*786repudiate an earlier decision, and is based on the theory that courts declare but do not make law. See id. In other words, when a decision is overruled, it does not become "bad" law; instead, it never was the law, "and the later pronouncement is regarded as the law from the beginning." See id. (citation and quotation marks omitted).

¶ 11. "Still, on occasion, this court has departed from the general rule of retroactivity and chosen instead to apply a new rule of law only prospectively." See id., ¶ 45. The decision to apply a new rule of law prospectively, what is referred to as "sunbursting," is driven by the courts' "attempt to alleviate the unsettling effects of a party justifiably relying on a contrary view of the law." See id.

¶ 12. [I]n determining whether to apply a new rule of law prospectively instead of retrospectively, we consider three factors: (1) whether the holding [of the most recent case] establishes a new rule of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression, the resolution of which was not clearly foreshadowed; (2) whether retroactive application would further or impede the operation of the new rule; and (3) whether retroactive application could produce substantial inequitable results.

Id.

¶ 13.

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Bluebook (online)
2014 WI App 95, 854 N.W.2d 857, 356 Wis. 2d 779, 2014 Wisc. App. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-milwaukee-wisctapp-2014.