Guerrero v. City of Kenosha Hous. Auth.

Decision Date21 September 2011
Docket NumberNo. 2010AP2305.,2010AP2305.
Citation2011 WI App 138,337 Wis.2d 484,805 N.W.2d 127
PartiesNorma GUERRERO, Plaintiff–Appellant,† v. CITY OF KENOSHA HOUSING AUTHORITY and City of Kenosha Housing Authority Board of Commissioners, Defendants–Respondents.
CourtWisconsin Court of Appeals


On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Leon W. Todd and Gai A. Lorenzen of Legal Action of Wisconsin, Inc., Racine and Jeffery R. Myer of Legal Action of Wisconsin, Inc., Milwaukee. There was oral argument by Jeffery R. Myer.

On behalf of the defendants-respondents, the cause was submitted on the brief of and oral argument of William K. Richardson, assistant city attorney, Kenosha.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.


On certiorari review, the circuit court reversed the order of the City of Kenosha Housing Authority Board of Commissioners (the Board) that terminated Norma Guerrero's public housing assistance and remanded the matter to the City of Kenosha Housing Authority (the KHA) for further proceedings, including a determination of Guerrero's rights and/or remedies. Guerrero challenges the circuit court's order. She contends that the circuit court erred in failing to grant equitable relief in the form of (1) immediate reinstatement of her public housing rental subsidy and (2) the restoration of her past rental subsidies. Because we conclude that Guerrero's requests for relief are not within the purview of certiorari review under Wis. Stat. ch. 68 (2009–10),1 we affirm the circuit court's order.


¶ 2 Guerrero was a participant in the Section 8 rent assistance program administered by the KHA.2 The KHA began termination proceedings against Guerrero on December 1, 2006, and a hearing was held by the Board on April 30, 2007. The Board upheld her termination, and sent her a letter dated May 9, 2007, stating that her assistance would be terminated effective June 30, 2007.

¶ 3 Guerrero appealed the Board's decision to the circuit court under Wis. Stat. § 68.13, which allows for a judicial appeal of administrative proceedings. The circuit court upheld the Board's decision and remanded the case to the Board with the directive that the examiner set forth in writing the reasons for the decision denying benefits and the evidence relied upon in making that decision.

¶ 4 Guerrero appealed the circuit court's decision and, in an unpublished opinion, we held that the termination notice was insufficient under the due process standards described in Driver v. Housing Authority, 2006 WI App 42, 289 Wis.2d 727, 713 N.W.2d 670, because it failed to provide any information regarding the time period of Guerrero's alleged violation and what evidence the KHA had to support its assertions. Guerrero v. Kenosha Hous. Auth. ( Guerrero I ), No. 2008AP1548, unpublished slip op. ¶¶ 3–4, 2009 WL 2614937 (WI App Aug. 27, 2009). This court reversed the circuit court's decision and remanded with directions to grant appropriate relief consistent with the decision. Id., ¶ 6.

On remand, the circuit court reversed the Board's decision terminating Guerrero's benefits and remanded the matter to the KHA “for further proceedings that are consistent with this remand and the decision of the Court of Appeals in relation to any future hearing that may be scheduled to terminate plaintiff's eligibility for Section 8 benefits.” The circuit court also ordered the Board to “determine what remedies and/or rights, if any, are to be afforded to Norma Guerrero based on such wrongful termination of her Section 8 assistance.” Guerrero now appeals the circuit court order remanding the matter to the KHA.


¶ 6 Guerrero seeks reinstatement into the Section 8 housing program and restoration of her past rental subsidies. Guerrero contends that a court on certiorari review has authority to provide her with equitable relief under the provisions of Wis. Stat. ch. 68, as this is the only viable avenue to return her to her pre-termination status. We conclude that a court on certiorari review does not have the authority to order the relief requested.

¶ 7 Guerrero's request turns on the scope of certiorari review under Wis. Stat. ch. 68, as governed by its provisions and interpreted by case law. Thus, we review the circuit court's decision de novo. See Jay M.H. v. Winnebago Cnty. DHHS, 2006 WI App 66, ¶ 6, 292 Wis.2d 417, 714 N.W.2d 241 (the scope of a certiorari court's authority under ch. 68 is a question of statutory interpretation).

¶ 8 Wisconsin Stat. ch. 68 governs municipal administrative procedures. Wis. Stat. § 68.001 provides: “The purpose of this chapter is to afford a constitutionally sufficient, fair and orderly administrative procedure and review in connection with determinations by municipal authorities which involve constitutionally protected rights of specific persons which are entitled to due process protection under the 14th amendment to the U.S. Constitution.” As part of that procedure, Wis. Stat. § 68.13 provides for the judicial review of administrative decisions. It provides: “Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision.” Sec. 68.13(1).

¶ 9 A Wis. Stat. § 68.13 certiorari review “is limited to whether: (a) 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. ¶¶ 3–6. 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, 581 N.W.2d 552; § 68.13(1). However, a certiorari court cannot order the board to perform a certain act. Merkel, 218 Wis.2d at 578, 581 N.W.2d 552 (citing State ex rel. 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.3 Guerrero has not identified, and our research has not uncovered, any case law holding otherwise.

¶ 10 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.

¶ 11 Guerrero argues that equitable relief is required in order to fulfill the stated purpose of Wis. Stat. § 68.001 to provide a constitutionally sufficient and fair procedure and review of agency decisions. However, the supreme court has ruled that the certiorari process provided under Wis. Stat. ch. 68 is a constitutionally adequate postdeprivation remedy. See Collins v. City of Kenosha Hous. Auth., 2010 WI App 110, ¶ 28, 328 Wis.2d 798, 789 N.W.2d 342 (citing Thorp, 235 Wis.2d 610, ¶¶ 54–56, 58, 612 N.W.2d 59).4 Guerrero nevertheless contends that § 68.001 is meaningless if it does not provide for the reinstatement of her Section 8 benefits and the restoration of unpaid benefits. Again, Guerrero fails to reconcile her reading of § 68.001 with case law clearly defining the authority of a court on certiorari review. Certiorari exists to test the validity of decisions by administrative or quasi-judicial bodies. The scope of certiorari extends to questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of, as well as questions relating to the irregularity of the proceedings. Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 5, 239 Wis.2d 542, 620 N.W.2d 438. Guerrero's procedural due process challenge raises the issue of whether the KHA violated constitutional guarantees of due process. The circuit court's role is supervisory—here—providing a review of the KHA's administrative procedure to ensure that the notice and hearing comport with due process. See Winkelman, 239 Wis.2d 542, ¶ 5, 620 N.W.2d 438.

¶ 12 The circuit court's reversal and remand to the KHA and the Board for further proceedings consistent with the court of appeals decision instructs the KHA to provide Guerrero with adequate notice of the grounds for termination and the opportunity to contest those grounds at a hearing. While the KHA may have the opportunity to remedy the insufficiencies in its notice that resulted in the violation of Guerrero's due process rights, it will not be permitted to supplement the record with new evidence.5 See Snajder v. State, 74 Wis.2d 303, 313, 246 N.W.2d 665 (1976) (permitting supplementation of the record on remand violates concepts of due process and fair play). And again, the result of this second hearing could be subject to certiorari review. See Wis. Stat. § 68.13.

¶ 13 Guerrero contends that Wis. Stat. § 68.01, which provides that [t]he remedies under [ch. 68] shall not be exclusive,” permits us to order the requested relief. We are not persuaded. We have already concluded that a court on certiorari review does not have the authority to do so. However, both our supreme court and this court have recognized, this provision does permit a separate claim for damages pursuant to 42 U.S.C. § 1983.6 See, e.g., Hanlon, 235 Wis.2d 597, ¶ 4, 612 N.W.2d 44; ...

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