The Scow docket: it's OK to cast crucial vote that benefits your daughter

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: Thomas G. Miller v. Zoning Board of Appeals of the Village of Lyndon Station
​
Majority: Justice Rebecca F. Dallet (13 pages), for a unanimous court.

Dallet

The upshot

Trustee Jan Miller serves on the Village Board of Lyndon Station. She cast the deciding vote in favor of her daughter and son-in-law's application to amend the Village's zoning ordinance to rezone their vacant residential property for commercial development. A local business owner, Thomas Miller (no relation), argues that the vote violated his right to due process because Trustee Miller was partial to her daughter and son-in-law's rezoning application. We reject this argument because there is no due process right to impartial decision-makers when a legislative body like the Village Board enacts, repeals, or amends a generally applicable law like the zoning ordinance. Accordingly, we affirm the court of appeals' decision. 

---

Background

Kristi and Larry Whaley own a 1.87 acre property in Lyndon Station. Although most nearby properties are zoned as commercial, their property was zoned as residential. 

The Whaleys contracted to sell their property on the condition that it be rezoned for commercial development. They then applied for rezoning pursuant to the Village's regular process, which proceeds as follows: The application is first sent to the Village's five-member Plan Commission for a public meeting and vote on whether to recommend the zoning change. If the Plan Commission recommends the change, the three-member Village Board then holds a public hearing at which it must consider statements by the applicant and anyone else who wants to speak. Finally, the Village Board votes on whether to amend the zoning ordinance. 

Trustee Miller serves on both the Plan Commission and the Village Board. She is also Kristi Whaley's mother and lived with the Whaleys during the relevant period. Shortly after the Whaleys filed their rezoning application, some residents expressed concerns that Trustee Miller had a conflict of interest.

The Plan Commission (with Trustee Miller participating) voted to recommend that the Village Board approve the Whaleys' application and amend the zoning ordinance. Subsequently, the Village Board held a public hearing where Thomas Miller and others spoke against the proposed rezoning. Thomas Miller owns Miller's General Store and opposed the rezoning for several reasons, including because the prospective buyer planned to redevelop the property into a chain store that would compete with his business. Thomas Miller and other residents also questioned whether Trustee Miller had a conflict of interest that should preclude her from participating in the vote. 

Trustee Miller's participation was decisive in the Village Board's 2-1 vote to grant the Whaleys' application and amend the zoning ordinance. Thomas Miller appealed to the Village's Zoning Board of Appeals (ZBA) arguing that "[t]here was a clear conflict of interest involving the vote from Trustee Jan Miller." The ZBA subsequently upheld the Village Board's vote to amend the zoning ordinance. 

Thomas Miller went to court. Juneau County Circuit Judge William A. Sharp reversed the ZBA's decision, ruling that the Village Board vote violated due process because she was not a fair and impartial decision-maker. The Whaleys appealed, and the Court of Appeals reversed Sharp.

The guts

Thomas Miller's central claim is that Trustee Miller's participation in the Village Board's vote to amend the zoning ordinance violated his right to due process.

                                                                                                                  ***

In order to establish a violation of procedural due process, a plaintiff must demonstrate both: (1) the deprivation of a protected liberty interest – "life, liberty, or property" – by state action and (2) that the process he received before that deprivation fell short of the minimum the Constitution requires. We focus on the second of these two requirements because it is dispositive of Miller's claim. 

                                                                                                                  ***

For adjudicative actions like deciding civil or criminal cases, "a fair trial in a fair tribunal is a basic requirement of due process." Thus, even though we presume that judges act "fairly, impartially, and without bias," proof of a "serious risk of actual bias can objectively rise to the level of a due process violation." This standard applies not only to formal judicial proceedings but also to "administrative agencies which adjudicate." Accordingly, when adjudicative acts are involved, procedural due process requires impartial decision-makers.

When legislative actions are at issue, however, those affected by legislation "are not entitled to any process beyond that provided by the legislative process." That is because "[t]he act of legislating necessarily entails political trading, compromise, and ad hoc decisionmaking." In other words, legislators are partial to legislation all the time; indeed, they often run for office promising to use legislative power to accomplish specific policy objectives. And the primary check on legislators acting contrary to the public interest when legislating is the political process.  Accordingly, because "a legislative determination provides all the process that is due," partiality on the part of legislators does not violate the Due Process Clause. 

                                                                                                                  ***

We hold that the Village Board's vote to amend the zoning ordinance and rezone the Whaleys' property was a legislative act. The Village Board rezoned the Whaleys' property by amending the Village's generally applicable zoning ordinance. In other words, the Village Board changed the law. It did not apply existing law to individual facts or circumstances, as it would if it were making an adjudicative decision like whether to grant a variance or permit a legal non-conforming use. . . . Moreover, unlike an adjudicative decision, the Village Board's amendment to the zoning ordinance applies "prospectively, [and does] not impos[e] a sanction for past conduct."

It is true, of course, that this particular amendment came about only after the Whaleys applied for the zoning change and affected only the Whaleys' property directly. But that does not alter our analysis. . . .

What matters is that the Village Board made a prospective change by enacting, repealing, or amending existing generally applicable law. The Village Board's action was thus legislative in nature, and for that reason, Miller was not entitled to an impartial decision-maker.