Statue of Limitations – Certiorari Action

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WI Court of Appeals – District III

Case Name: Voters with Facts, et al., v. City of Eau Claire, et al.,

Case No.: 2019AP1528

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Statue of Limitations – Certiorari Action

Voters with Facts, as well as numerous individual plaintiffs (collectively, “Voters with Facts”), appeals an order dismissing its certiorari action seeking a judgment voiding a particular tax incremental district (“TID”) enacted by the City of Eau Claire and its Joint Review Board (collectively, “the City”). The circuit court concluded that Voters with Facts’ action was untimely filed under precedential case law setting forth a six-month common law rule for commencing a certiorari action.

On appeal, Voters with Facts argues that the six-month common law rule does not apply here because WIS. STAT. § 893.80 (2019-20)—the notice of claim statute applicable to actions against certain government actors—sets forth the operative limitations period. But, in a wrinkle, Voters with Facts argues that the limitations period set forth in the notice of claim statute does not apply to its certiorari action either, because that period only begins running upon the government actor issuing a formal notice of disallowance. Because the City passively disallowed its claim by operation of law, Voters with Facts contends there is no specific limitations period applicable to its certiorari action.

We conclude the cases articulating the six-month common law rule for commencing a certiorari action remain good law. Those authorities have not been overruled, either expressly or by necessary implication upon WIS. STAT. § 893.80’s enactment. Moreover, we need not decide whether and precisely how the six-month common law rule interacts with the notice of claim statute, because under any conceivable interaction, Voters with Facts’ certiorari claim was untimely filed. Accordingly, we affirm the order dismissing Voters with Facts’ complaint.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.