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Municipalities — public housing

By: WISCONSIN LAW JOURNAL STAFF//September 21, 2011//

Municipalities — public housing

By: WISCONSIN LAW JOURNAL STAFF//September 21, 2011//

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Wisconsin Court of Appeals

Civil

Municipalities — public housing

Reinstatement of a public housing rental subsidy and restoration of past rental subsidies are not forms of relief within the purview of certiorari review under Chapter 68.

“A WIS. STAT. § 68.13 certiorari review ‘is limited to whether: the agency kept within its jurisdiction; (b) the agency acted according to law; (c) the action was arbitrary, oppressive or unreasonable; and (d) the evidence presented was such that the agency might reasonably make the decision it did.’ Merkel v. Village of Germantown, 218 Wis. 2d 572, 578, 581 N.W.2d 552 (Ct. App. 1998). We held in our earlier unpublished decision that the agency did not act according to the law because it failed to afford Guerrero due process. Guerrero I, unpublished slip op. ¶¶3-4. Upon reaching that conclusion, a certiorari court can reverse the agency’s decision and remand it to the agency to hold a new hearing. Merkel, 218 Wis. 2d at 578-80; § 68.13(1). However, a certiorari court cannot order the board to perform a certain act. Merkel, 218 Wis. 2d at 578 (citing Richards v. Leik, 175 Wis. 2d 446, 455, 499 N.W.2d 276 (Ct. App. 1993) (concluding that a certiorari court would be unable to order an inmate moved to a medium security prison)). Thus, a court on certiorari review is without statutory authority to provide the equitable relief Guerrero requests. Insofar as Guerrero argues otherwise, she has not identified, and our research has not uncovered, any case law holding otherwise.”

“Moreover, Guerrero’s claim for ‘restoration’ of the rental subsidy is a claim for damages. Damages are unavailable in WIS. STAT. § 68.13 proceedings. Thorp v. Town of Lebanon, 2000 WI 60, ¶43, 235 Wis. 2d 610, 612 N.W.2d 59 (monetary damages are not available to a plaintiff seeking relief under § 68.13); Hanlon v. Town of Milton, 2000 WI 61, ¶18, 235 Wis. 2d 597, 612 N.W.2d 44.

Affirmed.

Recommended for publication in the official reports.

2010AP2305 Guerrero v. City of Kenosha Housing Authority

Dist. II, Kenosha County, Bastianelli, J., Neubauer, J.

Attorneys: For Appellant: Todd, Leon W., III, Racine; For Respondent: Richardson, William K., Kenosha

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