Blackstone and Booze: Wisconsin Court of Appeals Talks about Retroactivity of Judicial Choices

On August 26, the Wisconsin Court of Appeals launched Mixx Club v. Milwaukee, 13AP2599, a viewpoint examining the retroactivity of Wisconsin Top Court choices.

The situation started having a rowdy nightclub in Milwaukee. The Town of Milwaukee “non-renewed” Mixx Nightclub’s Class B tavern license, after “numerous disturbances” at Mixx this year and 2012. Mixx searched for overview of the most popular Council’s decision within the Milwaukee County Circuit Court. Depending on the recent Wisconsin Court of Appeals decision, Nowell v. Wausau, 2012 WI Application 100, 344 Wis. 2d 269, 823 N.W.2d 373 (Nowell I), Judge Sankovitz carried out a de novo trial and vacated the Milwaukee Common Council’s non-renewal decision. The Town become a huge hit.

Following the deadline for any reconsideration motion had passed but three days prior to the City filed its notice of appeal, the Wisconsin Top Court launched its decision reversing a legal court of appeals within the Nowell situation and holding that certiorari review (instead of de novo) may be the proper standard of review for choices of local government authorities concerning licenses for alcoholic drinks. Nowell v. Wausau, 2013 WI 88, 351 Wis. 2d 1, 838 N.W.2d 852 (Nowell II). Under certiorari review, a court views whether a city’s decision is created within its jurisdiction, is authorized, isn’t arbitrary, and it is based on substantial evidence.

Mixx, trying to preserve its victory within the circuit court, contended on appeal that Nowell II‘s certiorari standard ought to be applied prospectively. It contended that because Nowell I had been what the law states when Mixx’s de novo trial was carried out, certiorari review wasn’t appropriate.

A legal court declined Mixx’s argument. It described that Wisconsin follows the “Blackstonian doctrine” to which judicial choices are applied retroactively with the exception of limited conditions. This doctrine “is in line with the theory that courts declare but don’t make law…. [W]hen a choice is overruled, it doesn’t become ‘bad’ law rather it was not ever what the law states.Inches

A legal court acknowledged that typically a brand new rule of law is used prospectively (an exercise referred to as “sunbursting”) when certain reliance interests, equities, or judicial administration favor prospective application. E.g., Colby v. Columbia Cnty., 202 Wis. 2d 342, 363-65, 550 N.W.2d 124 (1996). Finding no such special conditions, a legal court held that Nowell II ought to be applied retroactively.

The end result was an across-the-board loss for Mixx. Because its argument on appeal related exclusively to retroactivity and since it didn’t let you know that its decision might be corrected under certiorari review, a legal court of appeals corrected the circuit court’s decision.

Mixx‘s holding is the fact that a brand new standard of review isn’t enough to warrant sunbursting, however the situation is another lesson for litigants who place a lot of eggs in a single basket.

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