2023 WI 46

SUPREME COURT OF WISCONSIN

CASE NO.: 2021AP1764

COMPLETE TITLE: Thomas G. Miller,

 Plaintiff-Respondent-Petitioner,

 v.

Zoning Board of Appeals of the Village of Lyndon 

Station and Village Board of Lyndon Station,

 Defendants,

Larry Whaley and Kristi Whaley,

 Intervenors-Appellants.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 404 Wis. 2d 539, 980 N.W.2d 295

PDC No: 2022 WI App 51 - Published 

OPINION FILED: June 6, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 13, 2023 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Juneau 

JUDGE: William Andrew Sharp 

JUSTICES:

DALLET, J., delivered the majority opinion for a unanimous 

Court.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs 

filed by Kathleen Henry and Dairyland Public Interest Law, 

Madison. There was an oral argument by Kathleen Henry. 

For the intervenors-appellants, there was a brief filed by 

Mitchell R. Olson, Zachariah J. Sibley, Michael P. Van Kleunen, 

and Axley Brynelson, LLP, Madison. There was an oral argument by 

Zachariah J. Sibley. 
2023 WI 46

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2021AP1764

(L.C. No. 2020CV178)

STATE OF WISCONSIN : IN SUPREME COURT

Thomas G. Miller,

 Plaintiff-Respondent-Petitioner,

 v.

Zoning Board of Appeals of the Village of 

Lyndon Station and Village Board of Lyndon 

Station,

 Defendants,

Larry Whaley and Kristi Whaley,

 Intervenors-Appellants.

FILED

JUN 6, 2023

Sheila T. Reiff

Clerk of Supreme Court

DALLET, J., delivered the majority opinion for a unanimous 

Court.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 REBECCA FRANK DALLET, J. 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 
No. 2021AP1764 

2

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. 

I

¶2 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. 

¶3 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 Commission1 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. 

 

1 Although the Village Code provides for a seven-member Plan 

Commission, just five members were serving at the time the 

Whaleys submitted their application. See Village Code § 101.4. 
No. 2021AP1764 

3

¶4 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.2 Shortly after the 

Whaleys filed their rezoning application, some residents 

expressed concerns that Trustee Miller had a conflict of 

interest.3 

¶5 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. 

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. Miller and other residents also questioned 

whether Trustee Miller had a conflict of interest that should 

preclude her from participating in the vote. 

 

2 The Whaleys move to strike the facts regarding Trustee 

Miller's relationship to the Whaleys because they were not a 

part of the certiorari record compiled by the Village. Because 

we rule for the Whaleys on the merits, we deny this motion as 

moot. 

3 The Village's attorney determined that there was no 

statutory conflict of interest under Wis. Stat. § 19.59 (2021-

22) since Trustee Miller would not receive "any monetary values 

[sic] from the [rez]oning of the property in question." 

Although Miller argued in the circuit court that Trustee 

Miller's participation in the Village Board's vote nevertheless 

violated this statute, he now concedes that it did not. 

Accordingly, we do not address § 19.59 further. 
No. 2021AP1764 

4

¶6 Trustee Miller's participation was decisive in the 

Village Board's 2-1 vote to grant the Whaleys' application and 

amend the zoning ordinance. 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. 

¶7 Miller sought certiorari review of the ZBA's decision 

pursuant to Wis. Stat. § 62.23(7)(e)10. (2021-22),4 again 

alleging that Trustee Miller should not have participated in the 

Village Board vote. The Whaleys intervened to defend the ZBA's 

decision. The circuit court5 reversed the ZBA's decision, 

concluding that Trustee Miller's participation in the Village 

Board vote violated due process because she was not a fair and 

impartial decision-maker. 

¶8 The Whaleys6 appealed and the court of appeals 

reversed. See Miller v. Zoning Bd. of Appeals, 2022 WI App 51, 

¶2, 404 Wis. 2d 539, 980 N.W.2d 295. The court of appeals 

assumed that Trustee Miller "was partial to her daughter and 

son-in-law's rezoning request," but nonetheless concluded that 

her participation in the vote did not violate due process. See

 

4 All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version unless otherwise indicated.

5 The Honorable William Andrew Sharp of the Juneau County 

Circuit Court presided.

6 Neither the Village nor the ZBA appealed the circuit 

court's decision. 
No. 2021AP1764 

5

id. ¶¶26, 33. To explain why, the court of appeals 

distinguished between adjudicative acts, which involve 

"application of [a] zoning ordinance to a particular set of 

facts and circumstances," and legislative acts like amending a 

zoning ordinance. Id., ¶¶40-41. For adjudicative acts, the 

court of appeals explained that due process requires an 

impartial decision-maker. Id., ¶40. But according to the court 

of appeals, the same is not true of legislative determinations 

like those at issue here——deciding whether to enact, repeal, or 

amend a generally applicable law like a zoning ordinance. See

id., ¶¶39-42. In that context, the court of appeals held that 

an impartial decision-maker is not required. See id. 

II

¶9 We review the ZBA's decision pursuant to Wis. Stat. 

§ 62.23(7)(e)10., which permits statutory certiorari review of 

such decisions. Statutory certiorari review encompasses, among 

other considerations,7 whether the ZBA "proceeded on a correct 

theory of law." Moreschi v. Village of Williams Bay, 2020 WI 

95, ¶15, 395 Wis. 2d 55, 953 N.W.2d 318 (quoting another 

source). Proceeding on a correct theory of law includes 

complying with the requirements of due process. See Marris v. 

 

7 The other considerations are: (1) whether the ZBA acted 

within its jurisdiction; (2) whether its actions were 

"arbitrary, oppressive, or unreasonable and represented its will 

and not its judgment"; and (3) "whether the board might 

reasonably make the order or determination in question based on 

the evidence." See State ex rel. Ziervogel v. Wash. Cnty. Bd. 

of Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401. 
No. 2021AP1764 

6

City of Cedarburg, 176 Wis. 2d 14, 24, 498 N.W.2d 842 (1993). 

Whether the ZBA proceeded on a correct theory of law is a 

question of law we review de novo while according a "presumption 

of correctness and validity" to the ZBA's decision. State ex 

rel. Ziervogel v. Wash. Cnty. Bd. of Adjustment, 2004 WI 23, 

¶¶13-14, 269 Wis. 2d 549, 676 N.W.2d 401. 

III

¶10 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.8 

¶11 This claim is grounded in the guarantees of procedural 

due process contained in the Fourteenth Amendment to the United 

States Constitution and Article I, § 1 of the Wisconsin 

Constitution.9 Procedural due process bars "a deprivation by 

state action of a constitutionally protected interest in life, 

 

8 At times Miller's brief suggests that Trustee Miller's 

participation in the Plan Commission's decision to recommend 

that the Village Board amend the zoning ordinance also violated 

due process. The relief he seeks, however, is "revers[al of] 

the decision of the ZBA and [Village] Board," not the Plan 

Commission. Moreover, Miller does not develop a separate 

argument for why the requirements of procedural due process 

would differ before the Plan Commission and the Village Board. 

Accordingly, we focus solely on whether Trustee Miller's 

participation in the Village Board's vote to amend the zoning 

ordinance violated due process. 

9 Although the text of Article I, § 1 of the Wisconsin 

Constitution and the Fourteenth Amendment to the United States 

Constitution differ, Miller does not argue that they provide 

different procedural due process protections. Accordingly, we 

treat these two provisions as coextensive for purposes of this 

discussion. 
No. 2021AP1764 

7

liberty, or property without due process of law." Thorp v. Town 

of Lebanon, 2000 WI 60, ¶53, 235 Wis. 2d 610, 612 N.W.2d 59 

(quoting Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 

473, 565 N.W.2d 521 (1997)). As this language implies, 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. See Ky. 

Dep't of Corrs. v. Thompson, 490 U.S. 454, 459-60 (1989). We 

focus on the second of these two requirements because it is 

dispositive of Miller's claim. 

¶12 The minimum procedural protections required by the Due 

Process Clause vary depending on the context. See Mathews v. 

Eldridge, 424 U.S. 319, 334 (1976) ("Due process is flexible and 

calls for such procedural protections as the particular 

situation demands." (quoting another source)). "[I]n deciding 

what the Due Process Clause requires when the State deprives 

persons of life, liberty or property, the Supreme Court has long 

distinguished between legislative and adjudicative action." 

Jones v. Governor of Fla., 975 F.3d 1016, 1048 (11th Cir. 2020) 

(citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 

U.S. 441, 445-46 (1915)). 

¶13 For adjudicative actions like deciding civil or 

criminal cases, "a fair trial in a fair tribunal is a basic 

requirement of due process." Caperton v. A.T. Massey Coal Co., 

556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 
No. 2021AP1764 

8

136 (1955)). 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." Miller v. Carroll, 2020 WI 56, ¶¶21-22, 392 

Wis. 2d 49, 944 N.W.2d 542 (citing Caperton, 556 U.S. at 868). 

This standard applies not only to formal judicial proceedings 

but also to "administrative agencies which adjudicate." Withrow 

v. Larkin, 421 U.S. 35, 46 (1975). Accordingly, when

adjudicative acts are involved, procedural due process requires 

impartial decision-makers. See, e.g., 75 Acres, LLC v. MiamiDade County, 338 F.3d 1288, 1294 (11th Cir. 2003).

¶14 When legislative actions are at issue, however, those 

affected by legislation "are not entitled to any process beyond 

that provided by the legislative process." Jones, 975 F.3d at 

1048 (emphasis in original). That is because "[t]he act of 

legislating necessarily entails political trading, compromise, 

and ad hoc decisionmaking." Rogin v. Bensalem Township, 616 

F.2d 680, 693 (3d Cir. 1980). 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. See id. at 694; see also Bi-Metallic, 239 

U.S. at 445 (explaining that the rights of those affected by 

legislation "are protected in the only way that they can be in a 

complex society, by their power, immediate or remote, over those 

who make the rule"). Accordingly, because "a legislative 
No. 2021AP1764 

9

determination provides all the process that is due," partiality 

on the part of legislators does not violate the Due Process 

Clause. Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 

722, 738 (7th Cir. 2020) (quoting another source); see also, 

e.g., Santa Fe All. for Pub. Health & Safety v. City of Santa 

Fe, 993 F.3d 802, 818 (10th Cir. 2021); Samson v. City of 

Bainbridge Island, 683 F.3d 1051, 1060-61 (9th Cir. 2012); Grand 

River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 174 (2d 

Cir. 2005). 

¶15 Our cases similarly distinguish between legislative 

and adjudicative acts when determining what procedural due 

process protections are required. For example, in Quinn v. Town 

of Dodgeville, 122 Wis. 2d 570, 364 N.W.2d 149 (1985), we held 

that a town board resolution blocking a county board proposal to 

amend a zoning ordinance was a legislative act.10 See id. at 

584-85; see also Buhler v. Racine County, 33 Wis. 2d 137, 146, 

146 N.W.2d 403 (1966) ("[Z]oning is a legislative function."). 

That was because "[a]n ordinance amendment," even one that 

affects only a small amount of land or a handful of people, 

"changes the ordinance but does not execute or implement its 

 

10 Wisconsin Stat. § 59.97(5)(e)6. (1983-84), now renumbered 

as Wis. Stat. § 59.59(5)(e)6., gives town boards the power to 

block certain county board amendments to zoning ordinances. 
No. 2021AP1764 

10

provisions."11 Quinn, 122 Wis. 2d at 584-85. We therefore held 

that due process did not require additional notice to a 

landowner or an opportunity to be heard beyond that already 

guaranteed by statute before the town board blocked the zoning 

amendment. See id. 

¶16 Miller argues that the distinction between legislative 

and adjudicative acts is not relevant to deciding whether due 

process requires impartial decision-makers. Instead, he says 

that our decision in Marris v. City of Cedarburg, 176 

Wis. 2d 14, 498 N.W.2d 842 (1993) held that there is a due 

process right to impartial decision-makers in rezoning matters, 

regardless of whether the rezoning decision at issue is 

legislative or adjudicative. 

¶17 In Marris, a landowner applied to her local zoning 

board of appeals for recognition of a legal non-conforming use 

of her property. Id. at 19. She argued that she was denied "a 

fair and impartial hearing under . . . common law concepts of 

due process and fair play" when the zoning board's chairperson 

indicated that he had prejudged her application. Id. at 24; see 

also id. at 24-29. We agreed that the landowner was denied a 

 

11 "Spot zoning," "the practice whereby a single lot or area 

is granted privileges which are not granted or extended to other 

land in the vicinity . . . is not illegal per se in Wisconsin." 

Cushman v. City of Racine, 39 Wis. 2d 303, 306-07, 159 N.W.2d 67 

(1968). It may, however, violate the Fourteenth Amendment's 

Equal Protection Clause under certain circumstances. See

Buhler, 33 Wis. 2d at 145-46. Nevertheless, Miller does not 

allege that the Board's vote to amend the Village's zoning 

ordinance constitutes spot zoning or violates the Equal 

Protection Clause. 
No. 2021AP1764 

11

fair hearing, and observed that "[a]lthough the parties 

characterize the Board's hearing as adjudicative, we need not 

label these proceedings quasi-legislative or [adjudicative] to 

determine whether the decision-maker must be impartial." Id. at 

24 n.6. Rather, we explained that "[w]e need look only to the 

characteristics of the proceeding to determine whether the 

decision-maker must be impartial." Id. Because the application 

required the zoning board to make "factual determinations about 

an individual property owner and then apply those facts to the 

ordinance," we held that an impartial decision-maker was 

required. Id. 

¶18 Marris does not, as Miller asserts, hold that the 

legislative/adjudicative distinction is irrelevant to deciding 

whether due process requires an impartial decision-maker in a 

particular context. On the contrary, Marris emphasized the 

importance of the "characteristics of the proceeding" to 

determining what process is due. See id. When Marris examined 

those characteristics, it held that an impartial decision-maker 

was required because "[t]he zoning decision in this case 

require[d] that the [b]oard examine a specific piece of land and 

the activities of a particular property owner," "engage in factfinding and then make a decision based on the application of 

those facts to the [existing zoning] ordinance." Id. at 26. 

Thus, even though we did not label it as such, the board's 

decision in Marris was adjudicative——it focused on how to apply 

the existing zoning law to particular facts and circumstances, 

not on whether to enact, alter, or repeal the existing zoning 
No. 2021AP1764 

12

law. See id.; see also Step Now Citizens Grp. v. Town of Utica 

Plan. & Zoning Comm'n, 2003 WI App 109, ¶48, 264 Wis. 2d 662, 

663 N.W.2d 833 (explaining that Marris involved an adjudicative, 

not legislative, decision). The approach in Marris is therefore 

consistent with the one taken by Quinn, which examined the 

circumstances of the specific government action at issue to 

determine whether it was legislative or adjudicative. See

Quinn, 120 Wis. 2d at 585 ("An ordinance amendment is 

legislation since it changes the ordinance but does not execute 

or implement its provisions."). 

¶19 Applying that approach to this case, 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. See, e.g., State v. 

Outagamie Cnty. Bd. of Adjustment, 2001 WI 78, ¶41, 244 

Wis. 2d 613, 628 N.W.2d 376 (stating that a decision about 

whether to grant a variance excusing compliance with an 

ordinance was adjudicative); Step Now, 264 Wis. 2d 662, ¶48 

(describing determinations about whether to permit nonconforming uses of property as adjudicative). Moreover, unlike 

an adjudicative decision, the Village Board's amendment to the 

zoning ordinance applies "prospectively, [and does] not impos[e] 
No. 2021AP1764 

13

a sanction for past conduct." L C & S, Inc. v. Warren Cnty. 

Area Plan Comm'n, 244 F.3d 601, 604 (7th Cir. 2001). 

¶20 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. As we explained in Quinn, rezoning by 

amending a local government's zoning ordinance "does not lose 

its legislative character simply because the number of people 

affected or the size of the land is small."12 122 Wis. 2d at 

584. 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. Accordingly, we affirm the court of 

appeals' decision.13 

By the Court.—The decision of the court of appeals is 

affirmed.

 

12 In passing, Miller's reply brief suggests that we should 

overrule Quinn. We decline to address this argument because it 

is undeveloped. See Sw. Airlines Co. v. DOR, 2021 WI 54, ¶32 

n.10, 397 Wis. 2d 431, 960 N.W.2d 384 (explaining that "we 

generally do not address undeveloped arguments"). 

13 Because we reject Miller's claim on the merits we need 

not address the Whaleys' argument that we should vacate the 

lower courts' and ZBA's decisions because the ZBA lacked 

jurisdiction to review the Village Board's vote to amend the 

zoning ordinance under Wis. Stat. § 62.23(7)(e)7.b. 
No. 2021AP1764 

1