                                                                         2013 WI 88

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:               2011AP1045
COMPLETE TITLE:         Thomas D. Nowell and Suporn Nowell, d/b/a IC
                        Willy's, LLC,
                                   Plaintiffs-Appellants,
                             v.
                        City of Wausau,
                                   Defendant-Respondent-Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 344 Wis. 2d 269, 823 N.W.2d 373
                                      (Ct. App. – Published)
                                     PDC No: 2012 WI App 100

OPINION FILED:          November 6, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 18, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Marathon
   JUDGE:               Gregory E. Grau

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-respondent-petitioner, there were briefs
by Shane J. VanderWaal and Pietz, VanderWaal, Stacker & Rottier,
S.C., Wausau, and Anne Jacobson, Wausau city attorney, and oral
argument by Shane J. VanderWaal and Anne Jacobson.


       For the plaintiffs-appellants, there was a brief by Ryan D.
Lister, Wausau, and oral argument by Ryan D. Lister.


       An    amicus     curiae    brief   was    filed   by    Grant   F.   Langley,
Milwaukee city attorney; Adam B. Stephens, Milwaukee assistant
city attorney; Michael May, Madison city attorney; Roger Allen,
Madison      assistant     city    attorney;      Robert      Weber,   Racine   city
attorney; and Nicole Loop, Racine assistant city attorney, on
behalf of the cities of Milwaukee, Madison and Racine.


     An   amicus   curiae   brief   was   filed   by   Daniel   M.   Olson,
Madison, on behalf of the League of Wisconsin Municipalities.




                                    2
                                                                          2013 WI 88
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.        2011AP1045
(L.C. No.    2010CV1082)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Thomas D. Nowell and Suporn Nowell, d/b/a IC
Willy's, LLC,
                                                                       FILED
              Plaintiffs-Appellants,
                                                                   NOV 6, 2013
      v.
                                                                     Diane M. Fremgen
City of Wausau,                                                   Clerk of Supreme Court


              Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                  Reversed.


      ¶1      ANN   WALSH   BRADLEY,    J.          The   Petitioner,        City     of
Wausau, seeks review of a published court of appeals decision

that reversed a judgment entered by the circuit court affirming
the   City's    decision    not   to   renew   Thomas     and    Suporn      Nowell's
Class B alcohol license.1          The court of appeals determined that
the circuit court had employed an incorrect standard of review.
      ¶2      The City of Wausau argues that the error lies with the
court of appeals and not the circuit court.                     It contends that
the de novo standard of review employed by the court of appeals

      1
       Nowell v. City of Wausau, 2012 WI App 100, 344 Wis. 2d
269, 823 N.W.2d 373 (reversing judgment of the circuit court for
Marathon County, Gregory E. Grau, J., presiding).
                                                                                  No. 2011AP1045



is not prescribed by Wis. Stat. § 125.12(2)(d) (2009-10)2 and is
inconsistent with the statute's legislative history, our prior
case law, and sound public policy.                           Instead, it asserts that
review          of    its      licensing           decisions           under       Wis.      Stat.
§ 125.12(2)(d) is by certiorari.
      ¶3        Although the statute does not expressly address which
standard of review is to be applied, we are persuaded that an
examination of the legislative history, our prior case law, and
the       public      policy        underlying         the       deference          due     to     a
municipality's alcohol licensing decision militate in favor of
certiorari review.                Therefore, we conclude that certiorari is
the   correct         standard       of     review   for     a     court     to     apply    when,

pursuant to Wis. Stat. § 125.12(2)(d), it reviews a municipal
decision        not   to     renew     an    alcohol      license.           Accordingly,         we
reverse the court of appeals.
                                                I
      ¶4        The    City       of      Wausau     issued        a    Class       B     combined
intoxicating liquor and fermented malt beverage license to IC
Willy's on October 1, 2009. IC Willy's is a tavern owned by
Thomas and Suporn Nowell.                   Shortly after the license was issued,
police began receiving noise complaints.
      ¶5        In    November         2009,    after      being        warned      that    adult
entertainment          was    not      permitted     on    the     premises,         IC    Willy's
hosted      a    "Girls      Gone      Wild"   event.         At       the   event,       officers

observed        nudity      and   lewd      behavior.      The      Nowells        agreed    to    a

      2
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
                                                2
                                                                                   No. 2011AP1045



voluntary 15-day suspension of their alcohol license, in lieu of
revocation and any other citation or fines for the nudity.                                         The
City permitted the Nowells to take the suspension in January so
that    it     would        not    conflict         with        their        New     Year's       Eve
commitments.         Thereafter, the Nowells submitted a 16-point plan
to address the problems IC Willy's had encountered.
       ¶6     On May 25, 2010, the City sent the Nowells notice of
its    intent       not    to     renew    their         license.            The    notification
indicated       that      this     decision       was         based    on     numerous          police
service calls to the premises, failed compliance checks, and the
Nowells'     failure        to    implement      the      action       steps       put     in    place
after their earlier suspension. After receiving the notice the

Nowells requested a hearing on the non-renewal.
       ¶7     The      City's          Public     Health         and        Safety         Committee
commenced that hearing on June 29, 2010, at 1:00 p.m.                                             The
hearing      lasted       for    approximately           14    hours,       during       which     the
Committee      heard       testimony      from      18    witnesses          and     examined       42
exhibits.
       ¶8     The         Committee       issued          its         findings        of        facts,
conclusions of law, and recommendation on June 30, 2010.                                            It
found that after the police received four separate complaints, a
citation for disturbing the peace was issued to IC Willy's on
October      25,    2009.         IC    Willy's     received           another       citation       on
November 8, 2009, for the same problem after the police had

responded      to    seven       additional       complaints           for    loud       music.     On
November 14, 2009, IC Willy's failed to take action to prevent


                                                3
                                                                            No. 2011AP1045



nudity at its establishment after the police warned that nudity
was not permitted.
      ¶9     The Committee further found that in February 2010 IC
Willy's failed compliance checks involving underaged persons on
the premises and that IC Willy's received another citation for
disturbing the peace on May 8, 2010.                     Based on these findings,
the Committee recommended that the City Council not renew the
Nowells' license.           After hearing additional arguments, the City
Council voted to accept the Committee's recommendation.
      ¶10    On July 12, 2010, the Nowells filed a complaint with
the Marathon County Circuit Court requesting judicial review of
the    City     Council's           decision        pursuant       to        Wis.      Stat.

§ 125.12(2)(d). The complaint alleged that the City of Wausau
denied the Nowells due process of law, unfairly discriminated
against them, and precluded them from presenting evidence of
disparate treatment. The Nowells sought an order renewing their
license and damages for lost income.
      ¶11    The Nowells asserted that the standard of review was
de    novo    and    that     the     circuit       court      should       independently
determine     whether       they    were     entitled     to    have        their    license
renewed.      After reviewing the parties' briefs on the issue, the
circuit court issued an oral ruling.                  Citing Marquette Savings &
Loan Assn. v. Village of Twin Lakes, 38 Wis. 2d 310, 156 N.W.2d
425 (1968), the circuit court stated that "when a circuit court
has   the    authority       to     review    the    action       of    a    board    or     a
commission,         that    review      shall       be      one        of    certiorari."


                                             4
                                                                           No. 2011AP1045



Accordingly, the circuit court determined that its review was
circumscribed by the four prongs of certiorari:

        [1]   whether   the    defendant   kept   within   its
        jurisdiction; [2] whether it acted according to law;
        [3] whether its action was arbitrary, oppressive, or
        unreasonable, and represented its will and not its
        judgment; and, [4] whether the evidence was such that
        it might reasonably make the order of determination in
        question.
It further determined that the Nowells' presentation of evidence
would be limited to those issues.
        ¶12    The circuit court held a two-day hearing on March 3
and 4, 2011.           At the hearing, the Nowells advanced the argument
that the City had treated it differently than other similarly
situated       establishments.         The   Nowells       further      argued     that   the

City had denied their license renewal because it wanted to give
their    license       to     another      business.       In    the    alternative,      the
Nowells       asserted      that     the   City    did     not    issue    their      renewal
license because it disliked them and thus was exercising its
will     and     not    its    judgment.       The     circuit         found   that    these
arguments went to the third prong of certiorari review (whether
the City's action was arbitrary, oppressive, or unreasonable,
and represented its will, not its judgment), and permitted the
Nowells to introduce extensive evidence on these points.
        ¶13    After considering the evidence, the court affirmed the
City's decision not to renew the Nowells' license. Specifically,
the circuit court determined that the City Council had acted
within its jurisdiction and according to law.                           Noting the "Girls
Gone     Wild"     event      that     led    to     the    15-day       suspension,      the


                                              5
                                                                                    No. 2011AP1045



incidents involving disturbances of the peace, the two failed
compliance checks, and the 14 police service calls after October
2009,       the     circuit         court     also       determined           that     there      was
sufficient evidence for the City Council's decision.
        ¶14    The       circuit     court        then    turned       to     the    question      of
whether       the    City's         actions       were        arbitrary,        oppressive,         or
unreasonable, and represented its will and not its judgment.                                        It
concluded that the Nowells had failed to show that there were
similarly situated establishments that were treated differently.
Moreover,         there       was   no    compelling           evidence        to    support       the
Nowells' argument that the City was trying to pass their license
on     to     another         business.       Additionally,            the        circuit        court

determined that the efforts by the City to work with the Nowells
showed      that     it       was   not   trying         to    drive     IC    Willy's      out    of
business. Therefore, the Nowells' assertion that the City was
exercising         its    will      and     not    its        judgment      was     unpersuasive.
Accordingly, the circuit court affirmed the City's decision not
to renew the Nowells' license.
        ¶15    The court of appeals reversed.                      It concluded that Wis.
Stat. § 125.12(2)(d) requires the circuit court to employ a de
novo    standard         of    review,      independently          determining          whether      a
licensee is entitled to renewal.                       Nowell v. City of Wausau, 2012
WI App 100, ¶8, 344 Wis. 2d 269, 823 N.W.2d 373.
        ¶16    The       court      of    appeals        based     its        analysis      on    the
requirement in Wis. Stat. § 125.12(2)(d) that the procedure on
review shall be the same as in civil actions.                                       Id., ¶6.        It
noted that the statute calls for pleadings, an answer, and a
                                                   6
                                                                        No. 2011AP1045



hearing without a jury, and permits the circuit court to issue
subpoenas for witnesses.               Id., ¶6.         Citing State ex rel. Casper
v.   Board   of       Trustees,   30     Wis.      2d   170,   176,    140   N.W.2d   301
(1966), and Merkel v. Village of Germantown, 218 Wis. 2d 572,
577, 581 N.W.2d 552 (Ct. App. 1998), the court stated that the
practices     applicable          to     ordinary        civil    actions      are    not
applicable to certiorari.                Id., ¶¶7, 8.          It further noted that
statutes requiring certiorari usually specify how return of the
record is to be made.             Id., ¶8.         Thus, the court concluded that
the procedures in Wis. Stat. § 125.12(2)(d) were incompatible
with certiorari review.            Id.
      ¶17    Recognizing      that       the       circuit     court   had   relied   on

Marquette Savings & Loan, the court of appeals distinguished it
on the basis that it was decided before 1981, when Wis. Stat.
§ 125.12(2)(d) was enacted.               Id., ¶10.        It noted that this court
had issued a decision after 1981, State ex rel. Smith v. City of
Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901 (1987), applying a
certiorari analysis to licensing decisions, but determined that
that case was not controlling since the issue was not directly
raised or addressed.         Id., ¶11 n.5.
      ¶18    The court of appeals acknowledged that its decision
"represents       a     substantial       departure        from   ordinary     judicial
review of a municipality's exercise of police power."                           Nowell,
344 Wis. 2d 269, ¶11.              However, it stated that "[t]his was a
policy choice the legislature was entitled to make."                          Id., ¶12.
The court of appeals asserted that the short timeframes in Wis.
Stat. § 125.12(2)(d) supported its analysis.                      Id., ¶12 n.6.
                                               7
                                                                         No. 2011AP1045



                                             II
       ¶19    In this case we are asked to determine the appropriate
standard of review for a court to apply when, pursuant to Wis.
Stat. § 125.12(2)(d), it reviews a municipal decision not to
renew an alcohol license.              Resolution of this issue requires us
to interpret the language of the statute governing revocation,
suspension,      and    refusal       to   issue        or   renew   alcohol   licenses.
Statutory interpretation is a question of law, which we review
de novo, independently of the determinations rendered by the
circuit court and the court of appeals.                       Zwiefelhofer v. Town of
Cooks Valley, 2012 WI 7, ¶20, 338 Wis. 2d 488, 809 N.W.2d 362.
       ¶20    Statutory          interpretation         begins   with    examining     the

language of the statute.               State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110.    We interpret statutory language "in the context in which
it is used; not in isolation but as part of a whole; in relation
to   the     language       of   surrounding       or    closely-related       statutes."
Id., ¶46.
       ¶21    When     we    are    unable    to    discern      the    answer    to   our
inquiry by an examination of the language of the statute and its
context, we examine other interpretive aids.                         Id., ¶¶50, 51.    We
may look to legislative history to ascertain the meaning of the
statute. Id., ¶51.               An examination of our prior case law may
likewise illumine how we have previously interpreted or applied
the statute.         See, e.g., State v. Robert K., 2005 WI 152, ¶30,
286 Wis. 2d 143, 706 N.W.2d 257.
                                             III
                                              8
                                                                           No. 2011AP1045



        ¶22    We begin our analysis by examining the text of the
relevant       statutory     provisions.                  Wisconsin    Stat.    §    125.12
establishes the authority and the procedures for a municipality
or the Department of Revenue to revoke, suspend, or refuse to
issue    or    renew    an   alcohol      license.            Subsection     (3)    of   the
statute       gives    licensees    an    opportunity           for    a   hearing    if    a
municipality intends not to renew their license.                               It further
states that "judicial review shall be as provided in sub. (2)
(d)." Wis. Stat. § 125.12(3).                       Subsection (2)(d) provides in
relevant part:

        The procedure on review shall be the same as in civil
        actions instituted in the circuit court. The person
        desiring review shall file pleadings, which shall be
        served on the municipal governing body in the manner
        provided in ch. 801 for service in civil actions and a
        copy of the pleadings shall be served on the applicant
        or licensee. The municipal governing body, applicant
        or licensee shall have 20 days to file an answer to
        the complaint. Following filing of the answer, the
        matter shall be deemed at issue and hearing may be had
        within 5 days, upon due notice served upon the
        opposing party. The hearing shall be before the court
        without a jury. Subpoenas for witnesses may be issued
        and their attendance compelled. The decision of the
        court shall be filed within 10 days after the hearing
        and a copy of the decision shall be transmitted to
        each of the parties. The decision shall be binding
        unless it is appealed to the court of appeals.
Wis. Stat. § 125.12(2)(d).
        ¶23    As noted, the parties dispute whether the standard of
judicial       review    provided        by        Wis.     Stat.     § 125.12(2)(d)       is
certiorari or de novo.             "The commonly accepted meaning of a de
novo hearing is '[a] new hearing of a matter, conducted as if
the     original      hearing   had      not       taken     place.'"      Stuligross      v.

                                               9
                                                                            No. 2011AP1045



Stuligross, 2009 WI App 25, ¶12, 316 Wis. 2d 344, 763 N.W.2d 245
(quoting Black's Law Dictionary 738 (8th ed. 2004)). It gives no
presumption of correctness to the record below, according no
deference to the municipality's decision.
       ¶24    Statutory        certiorari         review,       on    the       other    hand,
accords a presumption of correctness and validity to the prior
decision.       Ottman v. Primrose, 2011 WI 18, ¶48, 332 Wis. 2d 3,
796 N.W.2d 411.       Thus, the scope of certiorari review is limited
to:

       1)   whether  the   [municipality]  kept  within   its
       jurisdiction; (2) whether it acted according to law;
       (3) whether its action was arbitrary, oppressive or
       unreasonable and represented its will and not its
       judgment; and (4) whether the evidence was such that
       it might reasonably make the order or determination in
       question.
State ex rel. Brookside Poultry Farms, Inc. v. Jefferson Cnty.
Bd.    of    Adjustment,       131    Wis.   2d       101,   119-20,     388     N.W.2d     593
(1986).
       ¶25    Although     Wis.       Stat.       §     125.12(2)(d)        dictates       the
procedure for judicial review, it is silent on which standard of

review the circuit court is to employ.                         As discussed below, an
examination of the procedures required by the statute likewise
does not indicate whether a de novo or certiorari review was
intended.
        ¶26    Wisconsin        Stat.    §    125.12(2)(d)            states      that    "the
procedure on review shall be the same as in civil actions."
This    requirement       is    not     inconsistent           with   certiorari         review
because       statutes,        most     notably         Wis.     Stat.      §     801.02(5),


                                             10
                                                                   No. 2011AP1045



specifically      permit   the    procedures        for   civil   actions    to    be
applied to certiorari proceedings.
      ¶27    Wisconsin Stat. § 801.02(5) states that: "[a]n action
seeking a remedy available by certiorari . . . may be commenced
under sub. (1), by service of an appropriate original writ on
the   defendant     . . . or     by   filing    a    complaint    demanding       and
specifying the remedy . . . ."               As we have previously stated,
the phrase "under sub. (1)" "refers to the summons and complaint
process specified in sec. 801.02(1) for the commencement of all
civil actions."       State ex rel. Dep't of Natural Resources v.
Walworth Cnty. Bd. of Adjustment, 170 Wis. 2d 406, 415, 489
N.W.2d 631 (Ct. App. 1992) (citing Tobler v. Door Cnty., 158

Wis. 2d 19, 23, 461 N.W.2d 775 (1990)). Thus, contrary to the
court of appeals' assertions, practices applicable to ordinary
civil actions may apply to certiorari proceedings.
      ¶28   The court of appeals' conclusion that the procedures
for civil actions are incompatible with certiorari review was
based on two cases that are not persuasive here.                    The court of
appeals cited Merkel v. Village of Germantown, 218 Wis. 2d 572,
577, 581 N.W.2d 552 (Ct. App. 1998), for its statement that
"[t]he    process   for    obtaining    a    writ    of    certiorari   bears     'no
resemblance to the usual processes of courts . . . .'"                      Nowell,
344 Wis. 2d 269, ¶7.             However, the discussion in Merkel was
limited to actions commenced by a writ.3                  As noted above, "[t]he

      3
       Although Merkel was decided in 1998, its discussion of the
"processes" of a writ of certiorari relies on cases that predate
the 1981 amendments to chapter 801 providing for an alternative
to the writ. Merkel v. Village of Germantown, 218 Wis. 2d 572,
                                        11
                                                                          No. 2011AP1045



use of a writ is not necessary" when seeking the method of
certiorari.        Wis.   Stat.    §   781.01;       see    also    Judicial       Council
Notes to § 801.02, Stats. Ch. 289, Laws of 1981 ("Any remedy
available by use of a writ may also be included in a judgment or
order rendered in an ordinary action in circuit court.").                           Thus,
Merkel does not imply that the reference to procedures in civil
actions      contained     in     Wis.    Stat.       § 125.12(2)(d)           precludes
certiorari review.
      ¶29    The court of appeals also cited State ex rel. Casper
v.   Board   of    Trustees,    30     Wis.    2d    170,    176,    140     N.W.2d      301
(1966), for its statement that "[t]he practice[s] applicable to
ordinary civil actions [are] not applicable to either common-law

or statutory writs of certiorari."                  Nowell, 344 Wis. 2d 269, ¶8.
Again, Casper was about writ procedure.                      Notably, it was also
written prior to the amendments to Wis. Stat. § 801.02 that
explicitly allowed certiorari to be commenced through a summons
and complaint.       Ch. 289, Laws of 1981.             Thus, neither Merkel nor
Casper provides authority for the conclusion that review under
Wis. Stat. § 125.12(2)(d) must be de novo.
      ¶30    The provision in Wis. Stat. § 125.12(2)(d) permitting
reviewing courts to issue subpoenas for witnesses also fails to
shed light on whether de novo or certiorari review was intended.
Common    law     certiorari,     which   is    available          when    there    is   no


577-78, 581 N.W.2d 552 (Ct. App. 1998) (citing Coleman v. Percy,
86 Wis. 2d 336, 272 N.W.2d 118 (Ct. App. 1978), aff'd, 96 Wis.
2d 578, 292 N.W.2d 615 (1980); State ex rel. Gaster v. Whitcher,
117 Wis. 668, 94 N.W. 787 (1903)).

                                          12
                                                                                     No. 2011AP1045



express statutory method of review, is limited to the record
compiled       by    the    municipality.                 Ottman,       332    Wis.    2d    3,   ¶35.
However,       when    certiorari             review       is     conducted      pursuant         to    a
statute, the statute may limit or enlarge the scope of review.
Id., ¶36; see also State ex rel. Ruthenberg v. Annuity & Pension
Bd., 89 Wis. 2d 463, 473, 278 N.W.2d 835 (1979).                                       Accordingly,
some statutes providing certiorari review explicitly permit the
reviewing court to take evidence.                           Brookside Poultry Farms, 131
Wis.    2d     at   120;     see,    e.g.,          Wis.     Stat.      §     88.09;    Wis.      Stat.
§ 62.23(7)(e)(10); Wis. Stat. § 59.694(10).
        ¶31    The court of appeals relied on the "extraordinarily
short     time"       in    Wis.     Stat.           §    125.12(2)(d)          to     support      its

conclusion that the circuit court should have conducted a de
novo review.          It noted that "[i]t is entirely possible that the
legislature,          recognizing            [that       tavern    owners       are    at    risk      of
losing        their        businesses],             decided        to       provide      a     rapid,
politically         detached        de       novo        review    of       municipal       licensing
decisions."          Nowell, 344 Wis. 2d 269, ¶12.                            To the extent Wis.
Stat. § 125.12(2)(d) provides a short timeframe for review, it
is equally reasonable to interpret the timeframe as indicating
review by certiorari, which generally involves a more truncated
proceeding than a de novo review.
        ¶32    Likewise, the lack of instruction for return of the
record        in    Wis.    Stat.        §     125.12(2)(d)          fails       to     indicate        a
preference for de novo review.                             "'Return' is a long-standing
term of art that refers to the official record of the body whose
decision is being reviewed and which must be filed with the
                                                     13
                                                                                  No. 2011AP1045



reviewing       court      in    a     certiorari         action."       Bergstrom       v.    Polk
County, 2011 WI App 20, ¶29, 331 Wis. 2d 678, 795 N.W.2d 482.
Wisconsin has a general statute requiring transmittal of the
record to the reviewing court for actions seeking certiorari
review,     Wis.        Stat.         §      781.03(1).               Accordingly,       specific
instructions in Wis. Stat. § 125.12(2)(d) are not required to
ensure that the court has the record to review.                                 Notably, other
statutes explicitly requiring certiorari review do not include
such instructions.              See, e.g., Wis. Stat. § 70.47(13).
     ¶33       Having      determined             that    the    language       of    Wis.    Stat.
§ 125.12(2)(d) does not establish what method of judicial review
to employ, we turn to its context to inform our analysis. See

Kalal, 271 Wis. 2d 633, ¶46.                        Here, the context of Wis. Stat.
§ 125.12(2)(d) suggests that certiorari review is appropriate.
     ¶34       Wisconsin         Stat.        § 125.12         establishes        authority        and
procedures for a municipality or the Department of Revenue to
make alcohol licensing decisions.                         The judicial review described
in   Wis.      Stat.       § 125.12(2)(d)               covers    municipality         decisions
"granting       or    failing          to     grant,      suspending       or     revoking         any
license,       or    the   failure           of    any    municipal       governing      body       to
revoke    or    suspend         any       license       for    good    cause."        Wis.    Stat.
§ 125.12(2)(d).
     ¶35       Although         this        case     deals       with    non-renewal          of    a
license, the fact that Wis. Stat. § 125.12(2)(d) also covers
decisions       to    grant       or        deny    a    new     license     is      significant.




                                                   14
                                                                No. 2011AP1045



Wisconsin Stat. § 125.12(2)(ag)4 limits a municipality's ability
to   revoke,   suspend,   or   not   renew   a   license   to     the   reasons

      4
       Wisconsin Stat. § 125.12(2)(ag) states that a complaint
against a licensee may be based upon an allegation that:

         1. The person has violated this chapter or municipal
      regulations adopted under s. 125.10.

         2. The person keeps or maintains a disorderly or
      riotous, indecent or improper house.

         3. The person has sold or given               away      alcohol
      beverages to known habitual drunkards.

         4. The person does not possess the qualifications
      required under this chapter to hold the license.

         5. The person has been convicted of manufacturing,
      distributing or delivering a controlled substance or
      controlled substance analog under s. 961.41(1); of
      possessing, with intent to manufacture, distribute or
      deliver,   a    controlled   substance    or   controlled
      substance    analog   under   s.   961.41(1m);    or   of
      possessing, with intent to manufacture, distribute or
      deliver,   or    of   manufacturing,    distributing   or
      delivering    a  controlled   substance   or   controlled
      substance analog under a substantially similar federal
      law or a substantially similar law of another state.

         5m. The person has been convicted of possessing any
      of the materials listed in s. 961.65 with intent to
      manufacture methamphetamine under that subsection or
      under a federal law or a law of another state that is
      substantially similar to s. 961.65.

         6. The person knowingly allows another person, who
      is on the premises for which the license under this
      chapter is issued, to possess, with the intent to
      manufacture, distribute or deliver, or to manufacture,
      distribute or deliver a controlled substance or
      controlled substance analog.

         6m. The person knowingly allows another person, who
      is on the premises for which the license under this
      chapter is issued, to possess any of the materials
                                     15
                                                               No. 2011AP1045



enumerated therein.       In contrast, a municipality's decision to
grant or deny a new license is unconstrained.                 See Wis. Stat.
§ 125.12(3m)5;    see    also   Wis.    Stat.    §    125.51(1)(a)     ("Every
municipal    governing   body   may    grant    and   issue   'Class    A'   and
'Class B' licenses . . . as the issuing municipal governing body
deems proper.").
     ¶36    The lack of restriction on municipality decisions to
grant or deny licenses is consistent with the historic view that
"the granting of a liquor license is a legislative function."
State ex rel. Ruffalo v. Common Council, 38 Wis. 2d 518, 524,
157 N.W.2d 568 (1968). It is well established that legislative
power may not be delegated to the circuit courts.                      City of

Beloit v. Town of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633
(1968).     Permitting a circuit court to determine de novo whether
a liquor license should be granted would, in essence, improperly
transfer that legislative function from the municipality to the
court.     In light of this context, it appears inappropriate to
interpret § 125.12(2)(d) to require de novo review.



     listed in s. 961.65 with the intent to manufacture
     methamphetamine.

         7. The person received the             benefit   from   an    act
     prohibited under s. 125.33(11).
     5
       Wisconsin Stat. § 125.12(3m) states, in full: "Refusals by
local authorities to issue licenses. If a municipal governing
body or duly authorized committee of a city council decides not
to issue a new license under this chapter, it shall notify the
applicant for the new license of the decision not to issue the
license. The notice shall be in writing and state the reasons
for the decision."
                                       16
                                                                          No. 2011AP1045



      ¶37   As part of context, we also consider surrounding and
closely related statutory provisions.                     One such provision, Wis.
Stat. § 125.12(5), empowers the Department of Revenue to revoke,
suspend, or refuse to renew alcohol permits after a hearing.
The statute specifies that such action is a contested case under
chapter 227.        See Wis. Stat. § 227.52(1).                   Judicial review of
contested     cases     is     generally         by     certiorari.          Wisconsin's
Environmental Decade, Inc. v. Public Service Comm'n, 79 Wis. 2d
161, 170, 255 N.W.2d 917 (1977).                   It would seem inconsistent to
interpret    Wis.     Stat.    §    125.12(2)(d)          to    provide     for   de    novo
review of a municipality's decision on an alcohol license in
light of the fact that Department of Revenue permit decisions

under Wis. Stat. § 125.12(5) are reviewed via certiorari.
      ¶38   Despite the indications that certiorari review is the
appropriate      method       of    judicial          review,    neither      the      plain
language    of   Wis.     Stat.      §    125.12(2)(d)          nor   its    context      is
dispositive on whether certiorari or de novo review is required.
      ¶39   Here, the legislative history is informative. In 1981,
the   legislature       created          Chapter       125,     which     combined       the
regulations      governing         fermented       malt    beverages        (Wis.      Stat.
§§ 66.054-66.057)       with       the   regulation       of    intoxicating        liquors
(ch. 176).       Prior to this combination, Wis. Stat. § 66.054(14)
provided for judicial review and used language similar to that
which is now found in § 125.12(2)(d).                     In contrast, Chapter 176,
which previously governed intoxicating liquors, made no mention
of a standard for judicial review.


                                            17
                                                                        No. 2011AP1045



       ¶40   When the legislature combined those regulations into
Chapter 125, it included a prefatory note stating:

       This bill is the product of the legislative council's
       special committee on the recodification of alcohol
       beverage laws. The special committee was directed
       under the terms of 1977 assembly joint resolution 82,
       to undertake the recodification of the laws governing
       the sale and taxation of alcohol beverages, but to
       refrain from making substantive revisions of those
       laws.
Ch. 79, Laws of 1981 at 649.               The note explains that the bill
repeals the two prior chapters regulating alcohol beverages and
combines     them    into   the    new    chapter      125.      Id.    at    650.      In
addition     to     the   reorganization,        the     bill    made        changes    to
"reflect current interpretations and practices."                       Id.
       ¶41    While there are no cases prior to 1981 interpreting
the type of review courts applied to license decisions under
Wis. Stat. § 66.054(14), courts reviewing municipal decisions on
liquor licenses under Chapter 176 used certiorari review.                              See
Marquette Savings & Loan, 38 Wis. 2d at 316 (standard of review
for actions of a Village relative to the issuance of a Class B

liquor license was certiorari); State ex rel. Ruffalo, 38 Wis.
2d at 525 (review of a denial of a renewal of a Class B liquor
license was limited to "determining whether the action of the
licensing         authority        was         arbitrary,         capricious            or

discriminatory."); Boroo v. Town Board of Barnes, 10 Wis. 2d
153,   160-61,      102   N.W.2d    238    (1960)      (courts    should       review    a
municipality's decision to deny a renewal Class B liquor license
to determine if the municipality acted capriciously and there


                                          18
                                                                              No. 2011AP1045



was an abuse of discretion); Rawn v. City of Superior, 242 Wis.
632, 636-37, 9 N.W.2d 87 (1943) (the decision to grant or deny a
Class B liquor license is committed to the sound discretion of
the municipal governing body).
           ¶42       In this context, the legislature's statements that it
was not making substantive changes to the laws governing the
sale       of    alcohol       and    that   the    changes   were     meant     to   reflect
current          interpretations         and   practices      evince     an     intent     that
certiorari review under Wis. Stat. § 125.12(d)(2) is the proper
standard.
       ¶43           Consistent with this intent, decisions issued by this
court and the court of appeals after Wis. Stat. § 125.12(2)(d)

was    enacted          have     utilized      certiorari       review   when      reviewing
municipality            licensing       decisions.       See,    e.g.,    State       ex   rel.
Smith v. City of Oak Creek, 139 Wis. 2d 788, 407 N.W.2d 901
(1987) (analyzing the definition of a habitual law offender in
the context of a certiorari appeal from a decision to not renew
a Class B alcohol license); Park 6 LLC v. City of Racine, 2012
WI App 123, ¶6, 344 Wis. 2d 661, 824 N.W.2d 903 (analyzing
validity of a liquor license revocation by the City of Racine
under a certiorari review standard); Questions, Inc. v. City of
Milwaukee, 2011 WI App 126, ¶13, 336 Wis. 2d 654, 807 N.W.2d 131
(court          of    appeals,       under   the    assumption    that    review      was    by
certiorari, analyzed the renewal of a Class B alcohol license).6

       6
       Furthermore, as detailed by the amici, certiorari review
has generally been the standard employed by the circuit courts.
In Milwaukee, all seven of the licensees seeking judicial review
since 2010, but prior to Nowell, received certiorari review. In
                                                   19
                                                      No. 2011AP1045



       ¶44    Indeed, as recently as last year, this court applied a
certiorari analysis in a review of a municipality's decision not
to renew an alcohol license.        Wisconsin Dolls, LLC v. Town of
Dell Prairie, 2012 WI 76, ¶¶18-19, 342 Wis. 2d 350, 815 N.W.2d
690.       While the standard of review was not directly at issue in
Wisconsin Dolls, it was the basis for our analysis.
       ¶45    Furthermore, those decisions are supported by strong
public policy.       Historically, regulation of the sale of alcohol
has been viewed as a matter of local concern.         State ex rel.
Smith v. City of Oak Creek, 139 Wis. 2d at 800-01.       It is part
of the police power granted to the city council under Wis. Stat.
§ 62.11(5)7, which may "be limited only by express language." See

Odelberg v. City of Kenosha, 20 Wis. 2d 346, 349, 122 N.W.2d 435
(1963).



Racine, of the five appeals taken to the circuit court since
2006, four were conducted pursuant to the certiorari standard.
The other appeal, which was taken after Nowell, received a de
novo review.    However, at least one case issued by the Dane
County Circuit Court, Bourbon Street Grille, Inc. v. City of
Monona, 09-CV-862 (Wis. Cir. Ct. Dane Cnty. Nov. 16, 2009), has
used de novo review.
       7
       Wisconsin Stat. § 62.11(5) provides: "Powers. Except as
elsewhere in the statutes specifically provided, the council
shall have the management and control of the city property,
finances, highways, navigable waters, and the public service,
and shall have power to act for the government and good order of
the city, for its commercial benefit, and for the health,
safety, and welfare of the public, and may carry out its powers
by license, regulation, suppression, borrowing of money, tax
levy, appropriation, fine, imprisonment, confiscation, and other
necessary or convenient means. The powers hereby conferred shall
be in addition to all other grants, and shall be limited only by
express language."
                                   20
                                                                               No. 2011AP1045



      ¶46    As the court of appeals noted, interpreting Wis. Stat.
§   125.12(2)(d)      to    require        a     de       novo      review     "represents        a
substantial       departure       from     ordinary              judicial      review      of    a
municipality's exercise of the police power."                              Nowell, 344 Wis.
2d 269, ¶11.        A municipality's exercise of its police power has
traditionally been accorded deference by reviewing courts.                                      See
Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis. 2d
637, 643, 96 N.W.2d 85 (1959).                        As this court has explained,
when reviewing the exercise of that power:

      It is to be remembered that we are dealing with one of
      the most essential powers of government, one that is
      the least limitable. It may, indeed, seem harsh in its
      exercise, usually is on some individual, but the
      imperative necessity for its existence precludes any
      limitation upon it when not exerted arbitrarily.
La Crosse Rendering Works, Inc. v. City of La Crosse, 231 Wis.
438, 448, 285 N.W. 393 (1939) (citing Chicago & Alton R.R. Co.

v. Tranbarger, 238 U.S. 67, 78 (1915)).
      ¶47    Both    this     court       and       the      U.S.      Supreme     Court      have
recognized the particularly strong nature of the police power to
regulate    alcohol:       "the    states,          under     the      broad     sweep   of     the
Twenty-first Amendment, are endowed with 'something more than
the normal' police power in regulating the sale of liquor in the
interests    of     the    public       health,       safety,          morals,    and    general
welfare."     State ex rel. Grand Bazaar Liquors, Inc. v. City of
Milwaukee, 105 Wis. 2d 203, 217, 313 N.W.2d 805 (1982) (citing
California     v.    LaRue,       409     U.S.        109,       114    (1972)).         Through
statutory authority, the State has granted this power to the



                                               21
                                                                   No. 2011AP1045



municipalities.      See Wis. Stat. § 62.11(5).                   This court has
further explained that:

     [T]he justifications for the near-plenary police power
     that a unit of government has to regulate alcohol
     sales . . . may be summed up as resting upon the
     fundamental principle that society has an inherent
     right to protect itself; . . . that the sobriety,
     health, peace, comfort, and happiness of society
     demand   reasonable   regulation,    if   not   entire
     prohibition, of the liquor traffic.   Unrestricted, it
     leads to drunkenness, poverty, lawlessness, vice, and
     crime of almost every description.       Against this
     result society has the inherent right to protect
     itself . . . .
Eichenseer v. Madison-Dane Cnty. Tavern League, 2008 WI 38, 54,
308 Wis. 2d 684, 716, 748 N.W.2d 154 (quoting Odelberg, 20 Wis.
2d at 350).    These policy considerations suggest that certiorari
review is appropriate as it serves to keep alcohol licensing
decisions within the control of the municipality by according
deference to its decisions.
     ¶48     For   the   reasons    discussed      above,    we    conclude   that

certiorari    is   the   proper    standard   of    review    for    a   licensing
decision under Wis. Stat. § 125.25(2)(d).              In such proceedings,
circuit courts are properly limited to determining:

     (1)   whether  the  [municipality]  kept   within  its
     jurisdiction; (2) whether it acted according to law;
     (3) whether its action was arbitrary, oppressive, or
     unreasonable and represented its will and not its
     judgment; and (4) whether the evidence was such that
     it might reasonably make the order or determination in
     question.
State ex rel. Brookside Poultry Farms, 131 Wis. 2d at 119-20.
Although Wis. Stat. § 125.12(2)(d) dictates the procedures a
circuit court is to follow, it does not indicate that the issues

                                      22
                                                                 No. 2011AP1045



the circuit court is to address have changed.                  As we discussed
in Ottman, "unless the statute providing for certiorari further
limits    or    enlarges   the   scope   of   review,    the   reviewing   court
makes the same four inquiries that are made under common law
certiorari review." Ottman, 332 Wis. 2d 3, ¶36.                    Whereas Wis.
Stat. § 125.12(2)(d) does not enlarge the scope of issues the
circuit court is to address, the evidence the court takes should
be relevant to one of the four prongs of certiorari review.8                  As
illustrated by the facts of this case, such an approach accords
a   licensee     broad   latitude   to    introduce     evidence   under   prong
three.      At the same time, it accords the appropriate deference
to the municipality's exercise of its police powers.

      ¶49      In this case the circuit court was correct to conduct
a certiorari review and address each of the four prongs.                      On


      8
       We note that in Klinger v. Oneida County, 149 Wis. 2d 838,
847, 440 N.W.2d 348 (1989), we suggested that when conducting
certiorari review under Wis. Stat. § 59.99(10) it may be
appropriate to take evidence:

      when the record before the Board is incomplete because
      the aggrieved party was refused an opportunity to be
      fully heard or the Board excluded relevant evidence;
      when good and sufficient cause is shown for the
      failure to have offered the evidence to the Board;
      when the record presented to the circuit court does
      not contain all the evidence actually presented to the
      Board; when the Board's record fails to present the
      hearing in sufficient scope to determine the merits of
      the appeal; and when new evidence is discovered after
      the Board's proceedings were closed.

Our decision here is not meant to affect the analysis in
Klinger, which was based on different statutory language and
which was discussing the circumstances in which evidence could
be taken, as opposed to the issues the evidence should address.
                                         23
                                                                              No. 2011AP1045



prongs one and two, the court determined that the City Council
had    complied      with   Wis.     Stat.     §     125.12        and,    thus,     had   acted
within its jurisdiction and according to law. Pursuant to prong
four, the circuit court considered the evidence presented to the
Committee and determined that there was sufficient evidence for
the City Council's decision.
       ¶50     The    circuit      court     devoted           a   substantial       amount   of
time to considering the third prong of certiorari.                                  Consistent
with    the   statutory         requirements,            it    gave    the    Nowells      broad
latitude      to     introduce     evidence          relating         to    their    disparate
treatment     argument.          Likewise,          it    permitted        them     to   present
evidence relating to their arguments that the City did not renew

their license because it did not like them and because it wanted
to give their license to another business.
       ¶51    After      receiving      this    evidence,           the    court    determined
that the Nowells had failed to show that there were similarly
situated establishments that were treated differently. It also
determined that there was no compelling evidence to support the
Nowells' argument that the City was trying to pass their license
on to another business or that the City was trying to drive IC
Willy's out of business. Therefore, the court concluded that the
City had reasonably exercised its judgment, and affirmed the
City's decision not to renew the Nowells' license.
       ¶52    We agree with the circuit court.                             The City Council

acted within its jurisdiction and followed Wis. Stat. § 125.12.
The    Nowells     did    not    show   that        the       municipality     treated      them
differently than similarly situated establishments, or show that
                                               24
                                                                                   No. 2011AP1045



the   City        Council       exercised      its      will   and       not      its    judgment.
Further, for the reasons stated by the circuit court we also
conclude that there was sufficient evidence to support the City
Council's decision not to renew the Nowells' license.
        ¶53       The     circuit    court's       review      was       correct        given     the
deference due to the municipality's exercise of its police power
and the fact that alcohol licensing decisions are a matter of
local concern.              As such, the court of appeals erred when it
determined that Wis. Stat. § 125.12(2)(d) requires a circuit
court to conduct a de novo review of a municipality's decision
not to renew an alcohol license.
                                                  IV

        ¶54       In     sum,     although     the      statute         does      not    expressly
address       which       standard     of    review       is   to       be    applied,     we     are
persuaded that an examination of the legislative history, our
prior case law, and the public policy underlying the deference
due to a municipality's alcohol licensing decisions militate in
favor        of    certiorari        review.           Therefore,            we   conclude      that
certiorari is the correct standard of review for a court to
apply when, pursuant to Wis. Stat. § 125.12(2)(d), it reviews a
municipal              decision     not      to        renew       an        alcohol      license.
Accordingly, we reverse the court of appeals.
        By    the       Court.–The     decision         of   the    court         of    appeals   is
reversed.




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    No. 2011AP1045




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