2017 WI 61
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1016 & 2015AP1119
COMPLETE TITLE: Margaret Pulera,
Petitioner-Appellant,
v.
Town of Richmond and Town of Johnstown,
Respondents-Respondents.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: June 20, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 17, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock and Walworth
JUDGE: Barbara W. McCrory and Phillip A. Koss
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs.
DISSENTED: A.W. Bradley, J. dissents, joined by ABRAHAMSON,
J.
NOT PARTICIPATING: KELLY, J. did not participate.
ATTORNEYS:
For the petitioner-appellant, there were briefs filed by
Sarah A. Huck, Malinda Eskra and Reinhart, Boerner, Van Dueren,
S.C., Milwaukee, and oral argument by Sarah Huck.
For the respondents-respondents, there was a brief by Sara
L. Gehrig and Nowlan & Mouat LLP, Janesville, and oral argument
by Sara L. Gehrig.
2017 WI 61
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2015AP1016 & 2015AP1119
(L.C. Nos. 2014CV1232 & 2014CV871)
STATE OF WISCONSIN : IN SUPREME COURT
Margaret Pulera,
Petitioner-Appellant, FILED
v.
JUN 20,2017
Town of Richmond and Town of Johnstown,
Diane M. Fremgen
Clerk of Supreme Court
Respondents-Respondents.
Appeal from consolidated orders of the Circuit Courts for
Rock and Walworth Counties. Reversed and cause remanded.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This appeal comes
before the court on certification by the court of appeals.1
Margaret Pulera (Pulera) appeals dismissals of the petitions for
certiorari review of highway orders recorded in Rock2 and
1
Pulera v. Town of Richmond and Town of Johnstown, Nos.
2015AP1016 and 2015AP1119, unpublished certification (Wis. Ct.
App. Dec. 23, 2015).
2
The Honorable Barbara W. McCrory presided.
Nos. 2015AP1016 & 2015AP1119
Walworth3 Counties. The issue certified is: what event triggers
the thirty-day period under Wis. Stat. § 68.13(1)(2013-14)4
during which certiorari review may be obtained for a town
board's highway order. To address this issue, we must interpret
the terms of § 68.13(1), the statute affording certiorari
review, in accord with Wis. Stat. § 82.15, the statute governing
appeals of highway orders.5
¶2 We conclude that the thirty-day period during which
certiorari review is available for a town board's highway order
to lay out, alter or discontinue a highway begins to run on the
date that the highway order is recorded by the register of
deeds.6 This interpretation best comports with the language and
structure of Wis. Stat. § 68.13 and Wis. Stat. § 82.15. And, in
addition, it provides aggrieved persons and parties a date
certain for commencement of the thirty-day period during which
judicial review of a highway order is available.
3
The Honorable Phillip A. Koss presided.
4
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
5
In Dawson v. Town of Jackson, 2011 WI 77, 336 Wis. 2d 218,
801 N.W.2d 316, we acknowledged the problems caused by the
interplay of Wis. Stat. § 68.13 and Wis. Stat. § 82.15. The
legislature may wish to consider revisiting these statutory
provisions.
6
Both towns issued highway orders. Accordingly, we need
not address when the deadline begins to run when an individual
seeks to appeal a town board's refusal to issue a highway order.
2
Nos. 2015AP1016 & 2015AP1119
¶3 Pulera's petitions were filed within thirty days of
the dates on which the highway orders were recorded by the
registers of deeds. Accordingly, we reverse the circuit courts'
orders granting the town boards' motions to dismiss Pulera's
petitions and remand for certiorari review in either Walworth
County Circuit Court or Rock County Circuit Court, as the
parties may agree.7
I. BACKGROUND
¶4 The relevant facts in the present case are brief and
uncontested. The dispute arises from changes to an intersection
located at the county line between Rock and Walworth Counties.
Specifically, the intersection is located where County Highway M
crosses North County Line Road. Without notifying the Town of
Richmond, the Rock County Highway Department made changes to
this intersection. To facilitate these changes, the Rock County
Highway Department had to discontinue two existing roads.
¶5 On September 9, 2014, the Town of Johnstown (Rock
County) and the Town of Richmond (Walworth County) held a joint
meeting. At the meeting, both town boards retroactively
approved changes to the intersection that the Rock County
Highway Department had already completed. This required the
7
If the parties do not agree on which circuit court shall
conduct the certiorari review, it shall be conducted in Walworth
County Circuit Court.
3
Nos. 2015AP1016 & 2015AP1119
town boards to approve construction of a new intersection as
well as discontinuance of portions of former highways.8
¶6 On October 3, 2014, the Richmond Town Board recorded
its highway order with the Walworth County Register of Deeds.
The order memorialized changes approved at the joint meeting of
the town boards. The Johnstown Town Board followed a month
later by recording its highway order with the Rock County
Register of Deeds on November 3, 2014.
¶7 On November 3, 2014, Pulera filed a certiorari
petition in Walworth County Circuit Court that sought review of
the Town of Richmond's highway order altering the intersection
and discontinuing portions of the highway. Similarly, on
December 1, 2014, Pulera filed a certiorari petition in Rock
County Circuit Court seeking judicial review of the Town of
Johnstown's highway order approving alterations to the same
highway and intersection.
¶8 On January 23, 2015, each town filed a motion to
dismiss Pulera's certiorari action.9 The towns alleged that
8
The actions of the Rock County Highway Department are not
at issue in the present case. They were the subject of Pulera
v. Coopman, No. 2013AP322, unpublished slip op. (Wis. Ct. App.
Nov. 13, 2013) petition for review denied 2014 WI 50, 354
Wis. 2d 863, 848 N.W.2d 859.
9
On February 27, 2015, Pulera moved to consolidate the two
actions in Walworth County Circuit Court. The Walworth County
Circuit Court did not address Pulera's motion. Pulera later
filed a motion to consolidate in Rock County Circuit Court; it
also did not address the motion. The court of appeals
consolidated the cases before certifying Pulera's appeals to us.
4
Nos. 2015AP1016 & 2015AP1119
Pulera's petitions were untimely because neither petition was
filed within thirty days of Pulera's receipt of the towns'
decision to alter the highway as they alleged is required by
Wis. Stat. § 68.13.10
¶9 Rock County Circuit Court dismissed Pulera's action as
untimely. The court reasoned that the thirty-day period during
which certiorari review may be sought for a highway order
commenced when Pulera received actual notice of the vote of the
Johnstown Town Board. The circuit court rejected Pulera's
argument that the thirty-day period commenced when the register
of deeds recorded the town board's highway order.
¶10 The Walworth County Circuit Court also dismissed
Pulera's claim as untimely. Unlike the Rock County Circuit
Court, the Walworth County Circuit Court concluded that the
thirty-day period for seeking certiorari review commenced with
the town board's vote. The Walworth County Circuit Court also
dismissed the claim for improper venue because a portion of the
highway is exclusively in Rock County.11
10
The towns argued that the petition filed in Rock County
should be dismissed pursuant to Wis. Stat. § 802.06(2)(a)10.,
another action pending between the same parties for the same
cause. The issue was not addressed by the circuit court, and
was not properly developed before this court. Accordingly, we
do not address it.
11
We observe that when an intersection is on the county
line that separates two counties, venue is proper in either
county. See Wis. Stat. § 82.15. Accordingly, venue is proper
in Walworth County. And, therefore, the Walworth County Circuit
Court incorrectly dismissed Pulera's action for improper venue.
5
Nos. 2015AP1016 & 2015AP1119
¶11 The court of appeals consolidated the cases on appeal
and certified them for our review. We now reverse.
II. DISCUSSION
A. Standard of Review
¶12 The present case requires us to interpret and apply
Wis. Stat. § 68.13 and Wis. Stat. § 82.15. Statutory
interpretation and application present questions of law that we
review independently, while benefitting from the circuit courts'
analyses. Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005
WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.
B. Statutory Construction, General Principles
¶13 "Judicial deference to the policy choices enacted into
law by the legislature requires that statutory interpretation
focus primarily on the language of the statute." State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. Accordingly, "statutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" Id., ¶45 (quoting Seider v. O'Connell, 2000 WI 76,
¶43, 236 Wis. 2d 211, 612 N.W.2d 659). "Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." Id. (citing Bruno
v. Milwaukee Cty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660
N.W.2d 656).
6
Nos. 2015AP1016 & 2015AP1119
¶14 "Context is important to meaning." Id., ¶46. For
this reason, "statutory language is interpreted 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; and reasonably, to avoid absurd or unreasonable
results." Id. (citing State v. Delaney, 2003 WI 9, ¶13, 259
Wis. 2d 77, 658 N.W.2d 416). And, we interpret statutes in such
a way as to give effect to each word. Id. ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage." (citing State v. Martin, 162
Wis. 2d 883, 894, 470 N.W.2d 900 (1991)).
¶15 "Where statutory language is unambiguous, there is no
need to consult extrinsic sources of interpretation, such as
legislative history." Id. (citing Bruno, 260 Wis. 2d 633, ¶20).
"The test for ambiguity generally keeps the focus on the
statutory language: a statute is ambiguous if it is capable of
being understood by reasonably well-informed persons in two or
more senses." Id., ¶47 (citing Bruno, 260 Wis. 2d 633, ¶19).
¶16 It is within this framework that we interpret and
apply the time limits of Wis. Stat. § 68.13(1) as affected by
Wis. Stat. § 82.15.
C. Wisconsin Stat. § 68.13
¶17 Wisconsin Stat. § 68.01 governs appeals from many
types of municipal administrative decisions.12 It provides:
12
A town is defined as a municipality under Wis. Stat.
§ 68.04.
7
Nos. 2015AP1016 & 2015AP1119
Any person having a substantial interest which is
adversely affected by an administrative determination
of a governing body, board, commission, committee,
agency, officer or employee of a municipality or agent
acting on behalf of a municipality as set forth in
s. 68.02, may have such determination reviewed as
provided in this chapter.
Wisconsin Stat. § 68.13(1) provides further guidance: "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." A person aggrieved by a highway order
has the same right of appeal. Wis. Stat. § 82.15. Accordingly,
a person or party who receives a final adverse determination
from a municipal administrative body has thirty days from its
receipt to appeal. However, when a determination is "final" and
when a party is in "receipt" of such a determination are not
defined. These words can become particularly opaque in the
context of highway orders issued under Wis. Stat. § 82.12.13
¶18 Under Wis. Stat. § 82.03(1)(a), a "town board shall
have the care and supervision of all highways under the town's
jurisdiction." However, a town board that decides to lay out,
alter or discontinue a highway must follow the specific
statutory requirements detailed in Wis. Stat. ch. 82.
Furthermore, there are two ways in which a town board may lay
out, alter or discontinue a highway. First, a town board, on
its own initiative, can introduce a resolution to lay out, alter
13
The interplay between these two statutes renders each
ambiguous. However, nothing in the legislative history provides
helpful guidance in ascertaining the meaning of these
provisions.
8
Nos. 2015AP1016 & 2015AP1119
or discontinue a highway. Wis. Stat. § 82.10(3).
Alternatively, town residents may petition their town board to
"lay out, alter, or discontinue any highway." Wis. Stat.
§ 82.12(10).
¶19 Under either method, a town board is required to
provide notice to various landowners and governmental bodies.
See Wis. Stat. §§ 82.10(3)14 & (4).15 In addition, a town board
is required to hold a public hearing to decide whether creating,
altering or discontinuing a highway is in the public interest.
Wis. Stat. § 82.11(1) ("At the time and place stated in the
notice under s. 82.10, the town board shall hold a public
hearing to decide, in its discretion, whether granting the
application or resolution is in the public interest.").
14
This section provides:
Upon receipt of an application under sub. (1) or the
introduction of a resolution under sub. (2), the board
shall provide notice of the time and that the place
where it will meet to consider the application or
resolution. The notice shall contain a legal
description of the highway to be discontinued or of
the proposed highway to be laid out or altered and a
scale map of the land that would be affected by the
application or resolution.
Wis. Stat. § 82.10(3).
15
A town board "shall publish a class 3 notice under ch.
985" and is required to notify "owners of record lands through
which the highway may pass," and the "owners of record of all
lands abutting the highway" among others, pursuant to Wis. Stat.
§ 82.10(4).
9
Nos. 2015AP1016 & 2015AP1119
¶20 Pursuant to Wis. Stat. § 82.12(2), a town board must
issue a "highway order" if it decides to grant a petition or
approve a resolution to lay out, alter or discontinue a highway.
The vote of a town board, in and of itself, does not create a
highway order; rather, a "highway order" is a document that is
statutorily described in regard to the particulars the document
must include.16 Wis. Stat. § 82.01(3). In addition, to give
effect to a highway order, the town board is required to take
several delineated steps. Wisconsin Stat. § 82.12 provides:
The highway order shall be recorded with the register
of deeds for the county in which the highway is or
will be located and shall be filed with the town
clerk. The town clerk shall submit a certified copy
of the order to the county highway commissioner. If
the town has an official map, the order shall be
incorporated into the official map.
Wis. Stat. § 82.12(2).
¶21 A person aggrieved by a highway order has the right to
seek judicial review of a town board's highway order. Wisconsin
Stat. § 82.15 provides: "Any person aggrieved by a highway
order, or a refusal to issue such an order, may seek judicial
review under s. 68.13. If the highway is on the line between 2
counties, the appeal may be in the circuit court of either
county." Wis. Stat. § 82.15.
16
"Highway order" is statutorily described as "an order
laying out, altering, or discontinuing a highway or a part of a
highway, that contains a legal description of what the order
intends to accomplish and a scale map of the land affected by
the order." Wis. Stat. § 82.01(3).
10
Nos. 2015AP1016 & 2015AP1119
¶22 If a person or party is aggrieved by a highway order,
they may seek review of the order using the certiorari process
outlined in Wis. Stat. § 68.13(1). However, a person or party
aggrieved by a highway order is subject to the same thirty-day
period during which review may be sought, as are others who seek
certiorari review under § 68.13(1).
¶23 A "final determination" by the town is a condition
precedent to certiorari review under Wis. Stat. § 68.13.17 In
addition, Wis. Stat. ch. 82 provides that a highway order must
be issued when a town decides to lay out, alter or discontinue a
highway. Wis. Stat. § 82.12(2). It is the highway order that
"contains a legal description of what the order intends to
accomplish and a scale map of the land affected by the order."
Wis. Stat. § 82.01(3).
¶24 In addition, it is the recording by the register of
deeds that gives public notice of the town board's decision.
Public notice is important because there may be persons
aggrieved by the town board's decision that were not aware of
it. And, the legislature has recognized the importance of this
function of the register of deeds. For example, Wis. Stat.
§ 840.11 governs petitions to alter streets, parks, and other
public places. It provides no "order, judgment or decree or
17
Wisconsin Stat. § 68.12 explains when a determination is
final under municipal administrative proceedings. However,
municipal authorities do not have § 68.11 hearings when
considering whether to issue highway orders, and therefore this
provision is inapplicable here.
11
Nos. 2015AP1016 & 2015AP1119
final resolution or order taking or affecting such land . . .
shall be notice to any subsequent purchaser or encumbrancer
unless a certified copy thereof, containing a legal
description . . . of the land affected thereby, and accompanied
with a map showing the location thereof, is recorded in the
office of the register of deeds of the county in which the land
is situated." § 840.11(2); see also Wis. Stat. § 107.25.
¶25 Moreover, when real estate is bought or sold, it is to
the records of the register of deeds that one looks in a title
search for restrictions on land. One purpose recording in the
register of deeds is to ensure the public has notice of any
changes to real property that occur. See generally, Wis. Stat.
§ 59.43 (2015-16). Therefore, a town's decision in regard to
laying out, altering or discontinuing a highway is not final
until the register of deeds records the town's highway order.
¶26 Furthermore, the precise geographic location of the
highway in its new form is not provided to the public until the
register of deeds records the town's highway order. See Wis.
Stat. § 82.12(2) ("If the town has an official map, the
[highway] order shall be incorporated into the official map.").
Persons seeking to appeal a town's decision laying out, altering
or discontinuing a highway may not know the metes and bounds
description of the new form of the highway before it is recorded
12
Nos. 2015AP1016 & 2015AP1119
by the register of deeds.18 Therefore, the triggering event for
judicial review of a highway order cannot commence prior to the
public being notified of the precise characteristics of the
order, i.e. until the register of deeds records it. It would be
imprudent to expect persons or parties to make a reasoned
decision about whether to seek certiorari review without a
precise, recorded highway order. And, for this reason, we
generally require a written order from which to appeal. See
generally, Ramsthal Advertising Agency v. Energy Miser, Inc., 90
Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979) ("An order, to be
appealable, must be in writing and filed." (citation omitted));
Helmrick v. Helmrick, 95 Wis. 2d 554, 556, 291 N.W.2d 582 (Ct.
App. 1980).
¶27 Beginning the thirty-day period on the date on which
the register of deeds records the order also gives effect to the
word "receipt" in the phrase "receipt of the final
determination" in Wis. Stat. § 68.13(1). The register of deeds
recording a highway order gives the public receipt of the
proposed highway alteration.
¶28 The practical benefits of concluding that recording
the highway order starts the thirty-day period for judicial
18
Of course, notice pursuant to Wis. Stat. § 82.10 provides
similar information prior to the hearing. However, the
information provided is subject to change at the hearing or at
any time prior to the recordation of the highway order by the
register of deeds. For this reason, notice given antecedent to
the hearing may not provide individuals with this information.
13
Nos. 2015AP1016 & 2015AP1119
review are significant. Specifically, it provides a clear and
definite triggering event for commencement of the thirty-day
period.19 And, persons and parties seeking certiorari review of
a highway order easily can ascertain the start of that thirty-
day period. The deadline for filing a certiorari petition will
be the same for all, and factual disputes as to the date by
which a certiorari action should have been filed will be less
frequent.
¶29 Accordingly, a person or party seeking certiorari
review of a town board's decision to lay out, alter or
discontinue a highway must file the petition for certiorari
review within thirty days of the register of deeds recording the
highway order. This triggering event for finality and receipt
19
As the court of appeals explained:
There are several positive aspects to this
interpretation. First, it creates a certiorari filing
date that is the same for all potential petitioners.
Second, the date of recording will normally be easy to
establish from the record. Third, the recording of
the highway order creates a wide potential for notice
to potential petitioners, because this is a place that
attorneys and others will know to check for land
records. Fourth, at the time it is recorded, the
highway order will be in its final legal form, thus
allowing potential petitioners to fully evaluate its
effects and decide whether to seek judicial review.
Pulera v. Town of Richmond and Town of Johnstown, Nos.
2015AP1016 and 2015AP1119, unpublished certification (Wis. Ct.
App. Dec. 23, 2015).
14
Nos. 2015AP1016 & 2015AP1119
of the highway order is consistent with the language and context
of the relevant statutes.20
D. Circuit Court Interpretations of Wis. Stat. § 68.13
¶30 The Walworth County Circuit Court and Rock County
Circuit Court each reached a different conclusion when
interpreting Wis. Stat. § 68.13 in the context of this highway
order. Each court's interpretation, while understandable, is
ultimately, unpersuasive.
¶31 The Walworth County Circuit Court concluded that the
appeal period during which a certiorari action may be filed
starts when a town board votes to lay out, alter or discontinue
a highway. The court concluded that "receipt of a final
determination" under Wis. Stat. § 68.13(1) occurs when the town
board votes. Accordingly, persons and parties would have thirty
days from the board's vote laying out, altering or discontinuing
a highway during which to commence a certiorari review of the
town board's decision.
¶32 However, this interpretation is inconsistent with the
plain language of Wis. Stat. § 68.13 and Wis. Stat. § 82.12.
20
A different triggering event must apply when a town board
votes not to lay out, alter or discontinue a highway. In such a
case, the town will not issue a highway order, so there will be
nothing to record. Also, different provisions govern finality
of such a decision. See Wis. Stat. § 82.12(3) ("The
determination not to issue a highway order shall be final for
one year. No application to lay out, alter, or discontinue a
highway shall be filed within one year from the date of a
determination not to issue a highway order covering the highway
or portion of the highway covered in the refused application.").
15
Nos. 2015AP1016 & 2015AP1119
The vote of a town board is not what is appealable under Wis.
Stat. § 82.15. It is a highway order that is appealable. Every
town board vote will not result in a highway order, e.g., when a
town board votes against laying out, altering or discontinuing a
highway. Wis. Stat. § 82.12(3). In addition, the circuit
court's interpretation reads the word "receipt" out of § 68.13
because persons and parties are not in "receipt" of the highway
order when the board votes.
¶33 Moreover, there would be significant practical
difficulties with beginning the period for judicial review with
a town board vote. Notably, Wis. Stat. § 82.12 does not contain
a requirement that an aggrieved person or party be present at
the vote. And, even though a party may be present at the board
meeting where a vote is taken, there is nothing to suggest that
a person who is aggrieved, but not present at the town board
meeting, would have any way of receiving notice of a town
board's vote. However, as discussed above, the register of
deeds' recording of the highway order does provide receipt by
public notice of laying out, altering or discontinuing a
highway.
¶34 The Rock County Circuit Court concluded that the
thirty-day period for an appeal was triggered by actual notice
of the board's decision. However, this interpretation does not
give effect to each word in the relevant statutes insofar as it
reads the word "receipt" and "final determination" out of Wis.
Stat. § 68.13(1). See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory
16
Nos. 2015AP1016 & 2015AP1119
language is read where possible to give reasonable effect to
every word, in order to avoid surplusage." (citing Martin, 162
Wis. 2d at 894)).
¶35 A town board issues a highway order which the register
of deeds records. Wis. Stat. § 82.12(2). But nothing in the
statutes requires a town board to provide interested persons
with a copy of the highway order. Therefore, no person or party
is statutorily required to be in "receipt" of a town board's
final determination other than the town clerk, the county
highway commissioner and the register of deeds. Wis. Stat.
§ 82.12(2).
¶36 Moreover, a person or party may receive actual notice
that there will be changes to the highway before the highway
order is filed with the register of deeds or incorporated into
the official map of the town due to filing with the town clerk.
Wis. Stat. § 82.12(2) ("The highway order shall be recorded with
the register of deeds for the county in which the highway is or
will be located and shall be filed with the town clerk. The
town clerk shall submit a certified copy of the order to the
county highway commissioner. If the town has an official map,
the order shall be incorporated into the official map.").
Choosing alternate places in which a highway order is filed
could result in inconsistent dates as triggering events for the
thirty-day period during which certiorari review under Wis.
Stat. § 68.13 is available.
17
Nos. 2015AP1016 & 2015AP1119
¶37 Neither the Walworth County Circuit Court's nor the
Rock County Circuit Court's interpretation fully comports with
the language of Wis. Stat. § 68.13 in the context of Wis. Stat.
§ 82.15. Therefore, as explained above, we reject those
interpretations and conclude that the thirty-day period during
which judicial review of a highway order may be commenced starts
on the date that the register of deeds records the highway
order.
E. Timeliness of Pulera's Petitions
¶38 In the present case, both of Pulera's petitions were
timely filed.21 Each petition was filed in circuit court within
thirty days of the dates on which registers of deeds recorded
each highway order. The Richmond Town Board's order was
recorded by the Walworth County Register of Deeds on October 3,
2014. And, within the thirty-day period for filing a certiorari
action, on November 3, 2014, Pulera filed a petition for
certiorari review of the highway order in Walworth County
Circuit Court.22
21
We assume without deciding that Pulera was aggrieved by
the highway orders.
22
Although the action was filed 31 days after October 3,
2014, it falls within the thirty-day filing deadline because the
thirtieth day, November 2, 2014, was a Sunday. See Wis. Stat.
§ 801.15(1)(b) ("Notwithstanding ss. 985.09 and 990.001(4), in
computing any period of time prescribed or allowed by chs. 801
to 847, by any other statute governing actions and special
proceedings, or by order of court, the day of the act, event or
default from which the designated period of time begins to run
shall not be included. The last day of the period so computed
shall be included, unless it is a day the clerk of courts office
(continued)
18
Nos. 2015AP1016 & 2015AP1119
¶39 Likewise, Pulera's petition for certiorari review in
Rock County Circuit Court was timely filed. The register of
deeds recorded the Town of Johnstown's highway order on November
3, 2014, and Pulera timely filed a petition for certiorari
review in Rock County Circuit Court on December 1, 2014.
III. CONCLUSION
¶40 Accordingly, we conclude that the thirty-day period
during which certiorari review is available for a town board's
highway order to lay out, alter or discontinue a highway begins
to run on the date that the highway order is recorded by the
register of deeds. This interpretation best comports with the
language and structure of Wis. Stat. § 68.13 and Wis. Stat.
§ 82.15. And, in addition, it provides aggrieved persons and
parties a date certain for commencement of the thirty-day period
during which judicial review of a highway order is available.
¶41 Pulera's petitions were filed within thirty days of
the dates on which the highway orders were recorded by the
registers of deeds. Accordingly, we reverse the circuit courts'
orders granting the town boards' motion to dismiss Pulera's
petitions and remand for certiorari review in either Walworth
County Circuit Court and Rock County Circuit Court, as the
parties may agree.
is closed.").
19
Nos. 2015AP1016 & 2015AP1119
By the Court.—The orders of the circuit courts are reversed
and the cause is remanded.23
¶42 DANIEL KELLY, J., did not participate.
23
Justice Annette Kingsland Ziegler and Justice Michael J.
Gableman join this opinion. Justice Rebecca Grassl Bradley
joins only the mandate of reversal.
20
Nos. 2015AP1016 & 2015AP1119.rgb
¶43 REBECCA GRASSL BRADLEY, J. (concurring). I join the
mandate of the lead opinion reversing the circuit courts' orders
and remanding for certiorari review, but I cannot join its
reasoning. The legislature imposes upon this court the hopeless
task of reconciling Wis. Stat. § 82.15——which permits a person
aggrieved by a highway order or a refusal to issue one to seek
judicial review under Wis. Stat. § 68.13(1)——with the language
of § 68.13, which allows "[a]ny party to a proceeding resulting
in a final determination," to seek certiorari review "within 30
days of receipt of the final determination." Here, Pulera was
not a "party to a proceeding," there was no set process for
sending her (or anyone else) a "final determination," and no
procedure assured any person's "receipt" of the final
determination. Faced with this conundrum, the lead opinion
creates its own procedure governing the deadline for filing a
petition for certiorari following the issuance of a highway
order. Although the lead opinion attempts to make the language
of the statute fit these circumstances, I cannot join its
statutory analysis. As the court of appeals explained in its
certification to this court, the statutory language enacted by
the legislature has "little connection to the highway order
process" and lacks any "useful guidance." It is not this
court's job to make up the law, but the lead opinion does so
because the legislature unmindfully incorporated the statutory
language governing municipal administrative appeals (§ 68.13)
into the statute governing appeals over highway orders (§ 82.15)
where it simply does not fit.
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¶44 Nonetheless, I join the lead opinion in reversing and
remanding because I conclude Pulera's petition is not untimely.
None of the three proposed trigger dates work, and Pulera did
not receive a "final determination" because the notice she
received did not include the map the statute dictates must be
included in order to be a "highway order."1 The time period for
certiorari review would not expire until 30 days after Pulera
received the "final determination"——that is, a highway order
containing the requisite scale map. I would not create the
bright-line rule set forth in the lead opinion, but I agree with
the mandate. Accordingly, I respectfully concur.
¶45 I write separately for three reasons: (1) to urge the
legislature to enact a statute specifically governing appeals
challenging the issuance of and refusal to issue highway orders;
(2) to question whether Pulera was "aggrieved" by the Towns'
highway orders or whether Pulera was instead aggrieved by Rock
County's alteration of the intersection before the highway
orders were issued and recorded with the register of deeds; and
(3) to highlight Rock County's apparent disregard for Chapter 82
by reconstructing the roads before obtaining the statutorily-
required highway orders.
1
A "highway order" must include "a legal description of
what the order intends to accomplish and a scale map of the land
affected by the order." Wis. Stat. § 82.01(3). Requiring the
inclusion of a scale map necessitates a written and not an oral
order.
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I
¶46 In 2011, this court decided Dawson v. Town of Jackson,
2011 WI 77, 336 Wis. 2d 318, 801 N.W.2d 316, which described the
lack of clarity in Wis. Stat. § 68.13(1) regarding highway
orders: "The phrase 'receipt of a final determination' is not
clear in the context of a highway order." See Dawson, 336
Wis. 2d 318, ¶66 n.5. In Dawson, which involved a town's
decision to deny a request for a highway order, this court
surmised that the 30-day time limit might be triggered by either
the date the town votes to "grant or deny" a request involving a
highway order or "the date that a notice of that determination
is received by an applicant, if a notice is sent." Id.
(emphasis added). This court resolved Dawson without deciding
the trigger date for the 30-day time limit because, no matter
what trigger date applied, Dawson did not meet the 30-day
deadline. Id.
¶47 Six years later, this court is called upon again to
apply the incongruous words the statutes say control an appeal
of a highway order. Read together, the statutes are so unclear
that the two circuit courts deciding Pulera's petitions applied
different trigger dates. The Walworth County Circuit Court
dismissed Pulera's petition as untimely by using the date the
Town voted to issue the highway order because Pulera attended
the meeting. In contrast, the Rock County Circuit Court
dismissed Pulera's petition as untimely because she did not file
it within 30 days of receiving "actual" notice of the not-yet-
recorded highway order.
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¶48 As the court of appeals explained, both
interpretations are problematic. Using the town vote as the
trigger date ignores the "receipt" language of the statute,
disregards the statutory definition of "highway order," and
would give notice only to persons in attendance. Using receipt
of the unrecorded highway order is problematic because the
statutes do not contemplate sending an aggrieved person a copy
of the highway order. A receipt-based trigger date could also
vary from person to person, depending on when each aggrieved
person requested and received the highway order. In the present
case, Pulera received the highway orders only because she asked
each Town to send them, and what she received did not constitute
statutorily-compliant highway orders because they did not
include maps.
¶49 Pulera suggests a third possible trigger date: the
date the highway orders are recorded with the register of deeds.
She argues that recording signifies a final determination and
provides a date certain that will be the same for any person
aggrieved. The lead opinion adopts Pulera's approach and
decides the trigger date is the date the highway order is filed
with the register of deeds. Although this resolution may sound
reasonable, it does not come from the language of the statute
the legislature tells us to apply.
¶50 My analysis focuses on the text of the statute: "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." Wis. Stat. § 68.13(1). "Receipt" is
4
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not defined in the statute, but according to Black's Law
Dictionary it means "[t]he act of receiving something" or "[a]
written acknowledgement that something has been received."
Receipt, Black's Law Dictionary (10th ed. 2014). A non-legal
dictionary similarly defines "receipt" as "[t]he act of
receiving" or "[a] written acknowledgment that a specified
article . . . has been received." Receipt, American Heritage
Dictionary (5th ed. 2011). The statutory language says the 30
days begin to run on the date the person is in "receipt of the
final determination." How can a person be deemed in receipt of
the final determination at the time the highway order is
recorded at the register of deeds? The register of deeds is
certainly in "receipt" when the document is recorded, but under
the plain meaning of "receipt" no aggrieved person could be in
"receipt" by virtue of such recording. How could an aggrieved
person know the highway order has been recorded? Would this
require an aggrieved person to check the register of deeds daily
after the town vote? Here, Rock and Walworth Counties each
recorded the highway order at the respective register of deeds
on different dates: Rock recorded its highway order 55 days
after the joint town meeting, and Walworth recorded its highway
order 24 days after the joint town meeting. So, should the lead
opinion's bright-line rule run 30 days from the first recording
or 30 days from the last recording? Would this interpretation
be subject to a discovery rule, making "receipt" the date the
aggrieved person discovers or should have discovered the highway
order has been recorded? Whatever "receipt" means in the
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statute, the general recording of a document at the register of
deeds cannot possibly constitute receipt by any person aggrieved
by a highway order. If this is what the legislature had in mind
it could have plainly said so.
¶51 The legislature has been on notice for at least six
years (since this court decided Dawson) that the statutory
language it tells us to apply in highway order cases does not
work, and I write to urge the legislature to enact a statute
outlining timeframes for appealing the issuance of a highway
order as well as the denial of a highway order. Perhaps the
legislature will adopt the trigger date the lead opinion
suggests, but the legislature rather than this court should
choose. If the legislature selects the date of recording at the
register of deeds for issued orders, it must enact a separate
trigger date for cases where the town board refuses to issue a
highway order, because refusals do not require a recording at
the register of deeds. Clarity in this area of the law is
needed, and I respectfully urge the legislature to promptly
address it.
II
¶52 As a foundational matter, I question whether Pulera
was aggrieved by the Towns' retroactive highway orders or
whether Pulera was instead aggrieved by Rock County's act of
altering the intersection before the Towns issued highway orders
and recorded them with the register of deeds. Wisconsin Stat.
§ 68.06 defines a "person aggrieved" as "any
individual . . . whose rights, duties or privileges are
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Nos. 2015AP1016 & 2015AP1119.rgb
adversely affected by a determination of a municipal authority."2
By the time the Towns voted to issue the highway orders, the
construction project altering the intersection was done. How
can these hollow highway orders have aggrieved anyone? The
orders were an after-the-fact formality to dot the i's and cross
the t's. The highway orders were not the official approval
permitting the project to begin; they were ostensibly a way to
legitimize what had already been finished a year earlier.
¶53 Pulera complains that she was adversely affected by
the alteration of the intersection. It appears to me her
grievance lies with Rock County, which altered an intersection
and discontinued two existing roads without the requisite
highway orders.3 She was not aggrieved by the issuance of
2
Note that Wis. Stat. § 68.01 provides:
Any person having a substantial interest which is
adversely affected by an administrative determination
of a governing body, board, commission, committee,
agency, officer or employee of a municipality or agent
acting on behalf of a municipality as set forth in
68.02, may have such determination reviewed as
provided in this chapter.
3
I acknowledge that Pulera attempted to challenge the Rock
County Board of Supervisors' reversal of its decision precluding
the proposed redesign of the intersection, and that her petition
seeking judicial review was dismissed on the ground that the
County's action was not reviewable because it was a "legislative
enactment," see Wis. Stat. § 68.03(1), and because Wis. Stat.
§ 82.01(6) applies only to cities, villages, and towns. See
Pulera v. Coopman, No. 2013AP322, unpublished slip op. (Wis. Ct.
App. Nov. 13, 2013). In that case it appears, however, that
Pulera only sought review of the Rock County Board of
Supervisor's reversal of its initial decision to leave the
intersection as it was. That suit did not challenge Rock
County's or the Rock County Highway Department's physical
alteration of the intersection without any apparent fulfillment
(continued)
7
Nos. 2015AP1016 & 2015AP1119.rgb
paperwork that obviously had no effect on a completed
construction project.
III
¶54 A related issue lurks beneath the surface of this case
but neither party raised it: did the Rock County Highway
Department violate the law by altering an intersection and
discontinuing town roads without first obtaining the
statutorily-required highway order? The record is limited as to
why the Rock County Highway Department ignored the statutorily-
required procedures set forth in Wis. Stat. ch. 82, "Town
Highways."
¶55 Some facts are not in dispute. The intersection at
County Highway M and North County Line Road was changed. Town
roads were eliminated. North County Line Road runs along the
border with Rock County on one side and Walworth County on the
other. Construction began in June 2012 and was completed by
August 2013.
¶56 Wisconsin Stat. §§ 82.10-.12 set forth the procedures
controlling such construction. Sections 82.10(1) and (2)
of the procedural requirements of Wis. Stat. § 82.21(1)(b),
which provides that "[t]he procedure to lay out, alter, or
discontinue a highway on the line between a town and another
town . . . shall begin only when . . . in each affected
municipality . . . [t]he town board, city council, or village
board introduces a resolution to lay out, alter, or discontinue
a town line highway." (Emphasis added.) Although a county
board has broad discretion in addressing highway construction
projects under Wis. Stat. § 83.03(1), this intersection involved
town roads. When town roads are involved, the county must
comply with the law set forth in Wis. Stat. ch. 82.
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Nos. 2015AP1016 & 2015AP1119.rgb
identify who can initiate the process and the documents required
to do so. Sections 82.10(3) and (4) provide notice requirements
and specify who must receive notice. Section 82.11 requires the
town board to "personally examine the highway or proposed
highway" and "hold a public hearing to decide, in its
discretion, whether granting the application or resolution is in
the public interest." Section 82.12 describes the time the town
board has to decide whether to issue or not issue the highway
order, as well as the recording requirements if a highway order
is issued.
¶57 Rock County did not follow the statutory process
before beginning or completing construction. The County began
construction before getting highway orders from either Town.
When the Town Board of Richmond sent a letter to the Rock County
Highway Department explaining it unanimously voted to leave the
intersection as is, it was ignored. The position of the Town
Board of Johnstown is not as apparent. What is clear is that
neither Town issued highway orders until after construction was
completed in August 2013. The statutorily-required highway
orders were issued only after the Richmond Town Board and the
Johnstown Town Board held a joint meeting on September 9, 2014.
The Richmond Town Board recorded its highway order approving the
new intersection on October 3, 2014. The Johnstown Town Board
recorded its highway order approving the new intersection on
November 3, 2014. From this record, it appears that the Rock
County Highway Department did not follow the statutory
procedures in Wis. Stat. ch. 82, performed the construction in
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Nos. 2015AP1016 & 2015AP1119.rgb
violation of the law, and thereby forced the Towns' issuance of
highway orders.
¶58 Laws are not written to be ignored. People who live
and work in these towns travel these roads and are affected by
the layout of town highways. The legislature has determined
that when town highways are "laid out, altered, or discontinued"
certain procedures affording notice and due process to those
most affected must be followed. The Rock County Highway
Department apparently decided these laws did not apply.
Regardless of whether there are facts not in this record to
explain Rock County's actions, all county highway departments
changing a town's highways should take care to follow the basic
procedures and law set forth in Wis. Stat. ch. 82. Failure to
follow these procedures deprives people who are adversely
affected by the decisions of their governing bodies of any
meaningful recourse.
¶59 For these reasons, I respectfully concur.
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Nos. 2015AP1016 & 2015AP1119.awb
¶60 ANN WALSH BRADLEY, J. (dissenting). We are asked to
determine what event triggers the thirty-day deadline for filing
a certiorari petition for judicial review of a town highway
order. Specifically, we are tasked with interpreting the terms
of Wis. Stat. § 68.13(1) (providing for certiorari review) in
conjunction with the terms of Wis. Stat. § 82.15 (governing
appeals of highway orders).
¶61 There are several areas of intrinsic disconnect
between these statutory provisions that cannot be easily and
forthrightly reconciled. We have previously brought our
concerns about these statutes to the attention of the
legislature and do so again here.1 Accordingly, there is no
clear answer as to when the certiorari filing deadline for
judicial review of a town highway order begins to run.
¶62 Given this conundrum, we are asked to discern whether
either of the interpretations advanced by the parties provide a
workable solution under the statutes as they are currently
written. The petitioner, Margaret Pulera, argues that the
triggering event is the recording with the register of deeds of
a highway order adopting a proposed change. The respondents,
Towns of Richmond and Johnstown, counter that the triggering
event is the date of a publicly noticed hearing at which the
town board votes to grant or deny a highway order.
1
See Dawson v. Town of Jackson, 2011 WI 77, 336 Wis. 2d
318, 801 N.W.2d 316.
1
Nos. 2015AP1016 & 2015AP1119.awb
¶63 The lead opinion adopts the petitioner's
interpretation.2 Lead op., ¶2. According to the lead opinion,
it is the recording of the highway order with the register of
deeds that "best comports with the language and structure of
Wis. Stat. § 68.13 and Wis. Stat. § 82.15." Id.
¶64 As the court of appeals certification acknowledged,
there are strengths and flaws to each interpretation.3 The lead
2
I use the term "lead" opinion for two reasons. First, I
am concerned that without this cue, the reader may mistakenly
believe that the first opinion has precedential value. Although
four justices join in the mandate of the opinion to reverse the
circuit courts' orders and remand for certiorari review
(Roggensack, C.J., joined by Ziegler, J., Gableman J., and
Rebecca Grassl Bradley, J.), it represents the reasoning of only
three justices (Roggensack, C.J., joined by Ziegler, J., and
Gableman, J.). Kelly, J., did not participate. Accordingly,
there is no opinion that represents the reasoning of the
majority of the court.
Second, I use the term "lead" opinion because although it
is undefined in our Internal Operating Procedures, its use here
is consistent with past description. I have said "that a lead
opinion is one that states (and agrees with) the mandate of a
majority of the justices, but represents the reasoning of less
than a majority of the participating justices." State v. Lynch,
2016 WI 66, ¶ 143, 371 Wis.2d 1, 885 N.W.2d 89 (Abrahamson & Ann
Walsh Bradley, J.J., concurring in part, dissenting in part)
(citing Hoffer Props., LLC v. State, Dep't of Transp., 2016 WI
5, 366 Wis.2d 372, 874 N.W.2d 533); see also State v. Weber,
2016 WI 96, ¶83 n. 1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann Walsh
Bradley, J., dissenting).
3
In Pulera v. Town of Richmond and Town of Johnston, Nos.
2015AP1016 and 2015AP1119, unpublished certification (Wis. Ct.
App. Dec. 23, 2015), the court of appeals discussed three
possible triggering events: (1) the town board vote on a
proposed highway change; (2) the recording of a highway order
adopting a proposed change; or (3) actual notice of the town
board's determination.
(continued)
2
Nos. 2015AP1016 & 2015AP1119.awb
opinion errs in failing to acknowledge the flaws of the
interpretation it adopts. In particular, adopting the date of
the recording of the highway order addresses only half of the
problem. It provides no triggering event for certiorari review
when a town board issues no highway order because it votes
against a proposed change. Additionally, the necessary notice
that will be provided by the lead opinion's procedure is
unpredictable at best and illusory at worst.
¶65 Contrary to the lead opinion, I determine that the
date of the town vote is the event triggering the deadline for
certiorari review. Admittedly, the date of the town vote does
not fit perfectly with the statutory language. However, this
The strengths and flaws of the first two approaches
advanced by the parties are set forth in the analysis section
below. Because neither party asks this court to adopt the date
of actual notice as the triggering event, I do not analyze it.
Nevertheless, I set forth the advantages and disadvantages
of that interpretation as proffered in the certification of the
court of appeals. It explained that one positive aspect of this
interpretation was that it closely tracked the statutory
language requiring "receipt of a final determination." Wis.
Stat. § 68.13(1). However, it acknowledged that a significant
flaw in this interpretation is that there is no requirement in
the town highway chapter that highway orders be sent to anyone
other than the register of deeds, the town clerk, and the county
highway commissioner. Wis. Stat. § 82.12(2).
Additionally, the court of appeals determined that if the
thirty-day deadline for each petitioner starts to run from only
the petitioner's receipt of the highway order, this could lead
to a continuing series of certiorari filing dates that are
individual to each potential petitioner. This would result in
problems due to lack of finality and leave the town uncertain as
to when it could begin the actual road work without the
possibility of judicial review.
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interpretation has the advantage of providing notice and a
review procedure to the largest number of interested parties on
a date certain.
¶66 Accordingly, I respectfully dissent.
I
¶67 Before discussing the advantages and disadvantages of
each interpretation, I provide a brief analysis of the statutory
provisions at issue. Pursuant to Wis. Stat. § 82.15, which
provides for judicial review of highway orders, "[a]ny person
aggrieved by a highway order, or a refusal to issue such an
order, may seek judicial review under s. 68.13." The cross-
referenced judicial review statute provides in relevant part
that "[a]ny party to a proceeding resulting in a final
determination may seek review thereof by certiorari within 30
days of receipt of the final determination." Wis. Stat.
§ 68.13(1).
¶68 There are several areas of disconnect between these
statutory provisions. The highway order process does not use
the term "final determination" or any similar term. Nor does it
have a "party to a proceeding" in the same manner as does a
municipal administrative proceeding under Wis. Stat. ch. 68.
Additionally, because there is no requirement that a highway
order be sent to all interested parties, it is not clear how to
apply the requirement that a certiorari petition be filed within
thirty days of "receipt" of the "final determination." Wis.
Stat. § 68.12(1).
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Nos. 2015AP1016 & 2015AP1119.awb
¶69 The lead opinion resolves the issue presented by
concluding that "the thirty-day period during which certiorari
review is available for a town board's highway order to lay out,
alter or discontinue a highway begins to run on the date that
the highway order is recorded by the register of deeds." Lead
op., ¶2. Admittedly, this interpretation has some advantages.
At the time it is recorded, the highway order will be in its
final legal form. As the lead opinion explains, this comports
with the statutory language allowing review of a "final
determination." Wis. Stat. § 68.13(1).
¶70 However, there are several significant flaws
associated with determining that the recording of the highway
order with the register of deeds triggers the certiorari filing
deadline. First, as the lead opinion acknowledges in a
footnote, its new rule applies only to petitioners seeking
certiorari review of a town board vote to issue a highway order,
adopting a proposed change. Lead op., ¶30 n.20. Accordingly,
the lead opinion provides no solution for petitioners seeking
certiorari review of a decision to deny a proposed change. As
it explains, "[i]n such a case, the town will not issue a
highway order, so there will be nothing to record." Id.
¶71 This is problematic because a whole category of people
are left without a procedure for review. Under Wis. Stat.
§ 82.15, the thirty-day deadline for filing a petition for
certiorari review is the same regardless of whether a town board
votes for or against a proposed highway change. Yet, when a
town board votes against a highway change, the lead opinion
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Nos. 2015AP1016 & 2015AP1119.awb
leaves those potential petitioners clueless and void of any
direction or avenue for review. See Lead op., ¶30 n.20.
¶72 Second, the lead opinion further errs in contending
that "persons and parties seeking certiorari review of a highway
order easily can ascertain the start of that thirty-day period."
Lead op., ¶28. It should acknowledge, as the court of appeals
indicated in its certification, that the only way for potential
petitioners to know when the highway order is recorded is to
repeatedly check the land records. See Pulera v. Town of
Richmond and Town of Johnston, Nos. 2015AP1016 and 2015AP1119,
unpublished certification (Wis. Ct. App. Dec. 23, 2015). In
reality, the lead opinion's interpretation does not mandate
notice to anyone other than the register of deeds, the town
clerk, or the county highway commissioner. See Wis. Stat.
§ 82.12(2). For all others it is a "constantly seek and you may
find" notice procedure.
¶73 Third, because there is no time limit for the
recording of the highway order with the register of deeds, this
interpretation has the potential to indefinitely delay the
review process. This constant seeking could last for an
indeterminate and unpredictable length of time. If the highway
order is never filed, then any review is illusory.
¶74 Finally, the lead opinion's analogy to Wis. Stat.
§ 840.11, which governs petitions to alter streets, parks, and
other public places, is misplaced. See lead op., ¶24. The
notice provided here is distinguishable because of the
differences between the interested parties requiring notice.
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¶75 Wisconsin Stat. § 840.11(2) provides that no final
order shall be notice to any subsequent purchaser or
encumbrancer unless recorded in the office of the register of
deeds. It is reasonable to put the onus on a potential
purchaser to check with the register of deeds before purchasing
property. It is less reasonable to require an unknown number of
potential petitioners to continually check with the register of
deeds to determine if a highway order has been recorded.
II
¶76 Contrary to the lead opinion, I interpret the date of
the public town vote as the event triggering the deadline for
certiorari review. There are several advantages to this
interpretation.
¶77 First, and most significant, it would provide all
petitioners with the same filing deadline regardless of whether
the town board voted to adopt or deny the proposed change.
Second, factual disputes about the date of the vote are unlikely
and thus the date is a date certain. Third, this is the
earliest event from which the certiorari filing date could begin
to run, meaning that the town board decision would become final
at the earliest possible date.
¶78 Finally, before a vote can be taken, notice
requirements must be met. Wisconsin Stat. § 82.10(3) requires
public notice of any meeting where the town intends to vote on a
resolution to reconfigure a road. "The notice shall contain a
legal description of the highway to be discontinued or of the
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Nos. 2015AP1016 & 2015AP1119.awb
proposed highway to be laid out or altered and a scale map of
the land that would be affected . . . ." Id.
¶79 Like all of the possible interpretations, the date of
the town vote also has disadvantages. The lead opinion is
correct that the vote of a town board does not create a written
"highway order." Lead op., ¶20. A "highway order" is defined
as a written document that contains a legal description and a
scale map. Wis. Stat. § 82.01(3). Yet, as noted above, through
the mandated public notice, potential petitioners have the
required information.
¶80 Admittedly, not all potential petitioners may attend
the town board meeting or receive notice of the vote after it
occurs. Although this solution is not a perfect fit with the
statutory language, the issue of notice is lessened here because
a town vote on a proposed highway change takes place at a
publicly noticed meeting. As the Walworth County circuit court
explained in ruling that the triggering event was the date of
the town board vote, "[a]nybody that is interested in what is
going to happen at that intersection attends those meetings and
finds out what happens." Br. of Pet., app. at 69. The circuit
court further reasoned that unlike the recording of the highway
order, the date of the vote would provide a specific date on
which all interested parties would receive notice.
¶81 Although none of the possible interpretations is a
perfect fit, the advantages of using this event as the
triggering event outweigh the disadvantages. Additionally, in
Dawson v. Town of Jackson, 2011 WI 77, ¶66 n.5, 336 Wis. 2d 318,
8
Nos. 2015AP1016 & 2015AP1119.awb
801 N.W.2d 316, this court highlighted the statutory
imperfections at issue in this case and advanced a solution
consistent with this interpretation.
¶82 In sum, I interpret the date of the town vote as the
event triggering the deadline for certiorari review of a highway
order. The date of the town vote does not fit perfectly with
the statutory language. However, this interpretation has the
advantage of providing notice and a review procedure to the
largest number of interested parties on a date certain.
¶83 I commend the petitioner in this case for advancing
her cause in the interest of ensuring safe roadways in her
community. However, because she sought certiorari review more
than thirty days after the town vote, I conclude that her
petitions were untimely.
¶84 Accordingly, I respectfully dissent.
¶85 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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1