Archive for May, 2011

Follow the Rules or Lose #217! Name the right person when you go to court.

Tuesday, May 31st, 2011

In the published decision of Acevedo v City of Kenshoa, Linda Acevedo began operating a day care center, which violated the Kenosha zoning ordinance.  When the city zoning department became aware of the violation, it ordered her to stop.  She appealed to the City of Kenosha Zoning Board of Appeals, which affirmed her violation.  She sought certiorari review in court, naming the City of Kenosha as the defendant.  The City moved to dismiss, arguing that the Zoning Board of Appeals, not the City was the property party.  Although Acevedo was able to show that other cases very similar to hers had been handled by courts when cities, not boards, were named as defendants, the Appeals Court noted that the issue of who was the proper defendant had not been raised in those cases, and thus had not been decided.  In reviewing the plain language of the law, the court said it was clear that the correct defendant would be the Board, not the City.  Thus the Court never reached the merits of Acevedo’s case.  Although this may seem to be a rather harsh technicality, it does continue a long tradition of courts being careful to make sure the proper defendant is sued, and sloppiness in naming a defendant can lead to dismissal.