Vincent Milewski v. Town of Dover

2017 WI 79SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1523
COMPLETE TITLE: Vincent Milewski and Morganne MacDonald,
Plaintiffs-Appellants-Petitioners,
v.
Town of Dover, Board of Review for the Town of
Dover and Gardiner Appraisal Service, LLC as
Assessor for the Town of Dover,
Defendants-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 262, 881 N.W.2d 359(2016 – Unpublished)
OPINION FILED: July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Phillip A. Koss
JUSTICES:
CONCURRED: ROGGENSACK, C.J. concurs (opinion filed).
ZIEGLER, J. concurs, joined by GABLEMAN, J.
(opinion filed).
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Richard M. Esenberg, Brian W. McGrath, Thomas C.
Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee,
and oral argument by Richard M. Esenberg.
For the defendants-respondents Town of Dover and Board of
Review for the Town of Dover, there was a brief filed by Dustin
T. Woehl, Jason P. Gehring, and Kasdorf Lewis & Swietlik, SC,
Milwaukee, and oral argument by Jason P. Gehring.
For the defendant-respondent Gardiner Appraisal Service,
LLC, there was a brief filed by Mitchell R. Olson and Axley
Brynelson, LLP, Madison, and oral argument by Timothy M. Barber.
An amicus curiae brief was filed on behalf of Institute for
Justice by Lee U. McGrath and Meagan A. Forbes and Institute for
Justice, Minneapolis.
An amicus curiae brief was filed on behalf of Wisconsin
REALTORS® Association by Thomas D. Larson and Wisconsin
REALTORS® Association, Madison.
2
2017 WI 79NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1523
(L.C. No. 2014CV1482)
STATE OF WISCONSIN : IN SUPREME COURT
Vincent Milewski and Morganne MacDonald
Plaintiffs-Appellants-Petitioners, FILED
v.
JUL 7, 2017
Town of Dover, Board of Review for the Town of Diane M. Fremgen
Dover, and Gardiner Appraisal Service, LLC, As Clerk of Supreme Court
Assessor for the Town of Dover,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 DANIEL KELLY, J. Vincent Milewski and Morganne
MacDonald (collectively, the "Milewskis") own a home in the Town
of Dover. They want to challenge a tax assessor's recent
revaluation of their property. But they also want to prevent
the tax assessor from inspecting the interior of their home as a
part of that process. The Town says our statutes require them
No. 2015AP1523
to pick one or the other because they cannot do both.1 The
Milewskis ask us whether the Town can put them to this choice.2
I. BACKGROUND
¶2 The Milewskis bring us a discrete question, but we see
that the answer will play out against an intricate and
delicately balanced set of tax statutes and constitutional
provisions. Although the following background provides little
more than a broad sketch of Wisconsin's system of real property
taxation, it should be enough to place the Milewskis' question
in an understandable context.
A. Wisconsin's tax assessment scheme
¶3 Article VIII, section 1 of the Wisconsin Constitution,
known as the Uniformity Clause, requires the uniform taxation of
real property,3 and Wis. Stat. ch. 70 provides the general
1
We will collectively refer to all the respondents as the
"Town," unless the context requires otherwise.
2
We review the unpublished decision of the court of
appeals, Milewski v. Town of Dover, No. 2015AP1523, unpublished
slip op. (Wis. Ct. App. May 4, 2016), affirming the Racine
County circuit court's order dismissing the Milewskis' claims
(the Honorable Phillip A. Koss, presiding).
3
The Uniformity Clause provides that:
The rule of taxation shall be uniform but the
legislature may empower cities, villages or towns to
collect and return taxes on real estate located
therein by optional methods. Taxes shall be levied
upon such property with such classifications as to
forests and minerals including or separate or severed
from the land, as the legislature shall prescribe.
Taxation of agricultural land and undeveloped land,
both as defined by law, need not be uniform with the
taxation of each other nor with the taxation of other
(continued)
2
No. 2015AP1523
procedure by which municipalities carry out this duty. In
Wisconsin, "[r]eal property shall be valued by the assessor in
the manner specified in the Wisconsin property assessment manual
provided under [Wis. Stat. § 73.03(2a)] from actual view or from
the best information that the assessor can practicably
obtain . . . ." Wis. Stat. § 70.32(1) (2015-16)4 (emphasis
added). The Wisconsin Property Assessment Manual provides that
"[i]n the case of real property, actual view requires a detailed
viewing of the interior and exterior of all buildings and
improvements and the recording of complete cost, age, use, and
accounting treatments." Wis. Dep't of Revenue, Wisconsin
Property Assessment Manual, 10-55 (2017).
¶4 If the property owner is dissatisfied with the
assessor's valuation, he may bring his objection to the local
real property. Taxation of merchants' stock-in-trade,
manufactures' materials and finished products, and
livestock need not be uniform with the taxation of
real property and other personal property, but the
taxation of all such merchants' stock-in-trade,
manufacturers' materials and finished products and
livestock shall be uniform, except that the
legislature may provide that the value thereof shall
be determined on an average basis. Taxes may also be
imposed on incomes, privileges and occupations, which
taxes may be graduated and progressive, and reasonable
exemptions may be provided.
Wis. Const. art. VIII, § 1.
4
All subsequent references to the Wisconsin statutes are to
the 2015-16 version unless otherwise indicated.
3
No. 2015AP1523
board of review. Wis. Stat. § 70.47(7)(a).5 He may do so,
however, only after he has first allowed a tax assessor to view
his property:
No person shall be allowed to appear before the board
of review, to testify to the board by telephone or to
contest the amount of any assessment of real or
personal property if the person has refused a
reasonable written request by certified mail of the
assessor to view such property.
Wis. Stat. § 70.47(7)(aa). At the board of review hearing, the
owner may present evidence in support of what he believes to be
the proper valuation. Wis. Stat. § 70.47(8). Based on that
evidence, the board of review decides whether to adjust the
assessor's valuation. Wis. Stat. § 70.47(9)(a). If the owner
disagrees with the board of review's conclusion, he may seek
certiorari review by the circuit court. Wis. Stat. § 70.47(13).
¶5 Some property owners, however, may want a circuit
court, rather than the town's board of review, to make the
initial determination of whether the assessor's valuation is
accurate. Such an owner may file a claim for excessive
assessment in the circuit court under Wis. Stat. § 74.37(2). He
must still, however, follow the pre-hearing procedures for
challenging the valuation before the board of review, as
outlined above: "No claim or action for an excessive assessment
may be brought under this section unless the procedures for
5
Each town creates its own board of review. The town's
common council decides who sits on the board, but the members
typically include the mayor, town clerk, and such other officers
as the council should designate. See Wis. Stat. § 70.46(1).
4
No. 2015AP1523
objecting to assessments under [§] 70.47 . . . have been
complied with." Wis. Stat. § 74.37(4)(a). After completing
these pre-hearing procedures, the owner asks the board of review
for a hearing waiver. Wis. Stat. § 70.47(8m). Once granted,
the owner may file his complaint in the circuit court.
B. The Town of Dover Revalues the Milewskis' Property
¶6 In 2013, the Town of Dover reassessed all the
properties in its jurisdiction and contracted with Gardiner
Appraisal Service, LLC ("Gardiner") to assign a value to each
such property. Gardiner's attention eventually turned to the
Milewskis' home (the "Property"), which had a pre-2013 assessed
value of $273,900, and an estimated fair market value of
$277,761. Gardiner sent the Milewskis a notice stating that it
"must view the interior of your property for the Town wide
revaluation program which is in progress" and that "[a]n
assessor will stop to view your property on Tues, Aug 20 at 6:10
pm."
¶7 When the assessor arrived, Ms. MacDonald invited him
into their yard and told him he was welcome to view the
Property's exterior; however, she further informed him he would
not be allowed inside the home. The assessor declined Ms.
MacDonald's invitation to view the Property's exterior and left
without asking her any questions about the Property.
¶8 A few months later, the Milewskis received a certified
letter from Gardiner stating that the assessor had not "viewed
the interior of your buildings" and asked that they schedule a
time for him to do so. The Milewskis sent the Town a letter
5
No. 2015AP1523
objecting to the requested interior inspection. Gardiner made
no further attempt to view the interior of the Property and
assessed it at a value of $307,100——a 12.12 percent increase
from the previous assessment of $273,900.6
¶9 After learning of the new assessment, Mr. Milewski
attended open book sessions to review the assessed values of
other properties in the subdivision.7 Based on his research, Mr.
Milewski learned that of the 43 parcels in the subdivision, only
four properties, including the Milewskis', did not have their
interiors inspected during the 2013 assessment. Of those four
properties, all four saw an increase in their initial
assessment. The other 39 properties that did have their
interiors inspected saw their assessed value decrease. After
receiving the initial assessments, the owners of two of the four
properties that had not had their interiors inspected allowed
Gardiner to conduct an inspection of their home's interior and
the assessments for those properties were then reduced. Thus,
the only two properties in the 43-parcel subdivision that saw an
increased assessment during the 2013 revaluation were those two
properties where the owners did not consent to Gardiner's view
of their home's interior.
6
The percentages we use throughout this opinion are those
reflected in the amended complaint.
7
Once the assessor has recorded the assessed values of the
town's property on the assessment rolls, the town clerk makes
the rolls available for public inspection during what is known
as "open book sessions." Wis. Stat. § 70.45.
6
No. 2015AP1523
C. The Milewskis Protest the Revaluation of the Property
¶10 The Milewskis filed an "Objection Form for Real
Property Assessment" with the Town, and about two weeks later,
they appeared at the November 25, 2013 Dover Board of Review
("BOR") hearing, where they intended to object to the assessment
of their Property. However, because the BOR determined they had
refused "a reasonable request by certified mail of the assessor
to view [their] property," the BOR refused to hear their
objection.
¶11 The Milewskis paid their 2013 property taxes and filed
a Notice of Claim and Claim with the Town Clerk under Wis. Stat.
§ 74.37, alleging the Property assessment was excessive and that
the Town had violated their Fourth Amendment rights. The Town
denied the Milewskis' claim by taking no action on it within 90
days. See Wis. Stat. § 74.37(3)(a). The Milewskis later
followed the same procedure for their 2014 property taxes, with
the same result.
¶12 The Milewskis commenced this case with a complaint
that included a claim for excessive assessment under Wis. Stat.
§ 74.37, and a claim that Wis. Stat. § 70.47(7)(aa) and Wis.
Stat. § 74.37(4)(a), as applied to the Milewskis, are
unconstitutional because they conditioned their right to
challenge the assessor's valuation of the Property on submission
to a search of their home. The parties filed cross-motions for
summary judgment. The circuit court granted the Town's, the
BOR's, and Gardiner's motions and dismissed the Milewskis'
7
No. 2015AP1523
claims. The court of appeals affirmed the circuit court, and we
granted the Milewskis' petition for review.
II. STANDARD OF REVIEW
¶13 Summary judgment is appropriate when there are no
genuine disputes as to any material facts and the moving party
is entitled to judgment as a matter of law. See Wis. Stat.
§ 802.08(2). We review a grant of summary judgment de novo,
applying the same methodology as the circuit court. Belding v.
Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373.
While our review is independent from the circuit court and court
of appeals, we benefit from their analyses. See Preisler v.
Gen. Cas. Ins. Co., 2014 WI 135, ¶16, 360 Wis. 2d 129, 857
N.W.2d 136.
¶14 A facial challenge to a statute's constitutionality
also presents a question of law that we review de novo. Aicher
v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99,
613 N.W.2d 849. We presume statutes are constitutional; the
party asserting the constitutional infirmity must establish its
argument beyond a reasonable doubt. State v. Wood, 2010 WI 17,
¶15, 323 Wis. 2d 321, 780 N.W.2d 63.
¶15 The Milewskis say they are not contesting the
constitutionality of the statutes in question, only how they
were applied to them. In such a challenge there is no
presumption the statute has been applied in a constitutional
manner. In re Gwenevere T., 2011 WI 30, ¶48, 333 Wis. 2d 273,
797 N.W.2d 854 ("neither party faces a presumption that the
statute was constitutionally applied."). We assume the
8
No. 2015AP1523
constitutionality of the statutes, and require the challenger to
prove the unconstitutional application of the statutes beyond a
reasonable doubt. Soc'y Ins. V. LIRC, 2010 WI 68, ¶27, 326
Wis. 2d 444, 786 N.W.2d 385; In re Gwenevere T., 333
Wis. 2d 273, ¶47 (In an "as-applied" challenge, "the presumption
that the statute is constitutional applies, just as it does in a
facial challenge.").
III. DISCUSSION
¶16 The Milewskis understand themselves to be on the horns
of a dilemma. The Town told them they must either submit to a
tax assessor's inspection of the interior of their home or lose
the right to challenge the revaluation of their Property. The
Milewskis say the Town may not make them ransom their due
process rights with a search of their home. The Fourth and
Fourteenth Amendments, they say, protect the sanctity of their
home as well as their right to contest the Town's revaluation.8
Put to the choice between the two, the Milewskis opted not to
allow the tax assessor's inspection. So the Board of Review
refused to hear their challenge.
¶17 The Town sees no dilemma. Instead, it sees only a
polite request to enter a home to perform the reasonable task of
determining how much it is worth so that the Town may properly
allocate the tax burden, as contemplated by our statutes and the
8
The Fourth Amendment applies to the states through the
Fourteenth Amendment. See, e.g., State v. Kramer, 2009 WI 14,
¶18 & n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio,
367 U.S. 643 (1961)).
9
No. 2015AP1523
Wisconsin Constitution. See Wis. Const. art. VIII, § 1; Wis.
Stat. § 70.01. The Town readily admits the Milewskis may not
challenge their assessment if they do not grant the inspection
request. But it maintains that a tax assessor's "viewing" of
the interior of the Milewskis' property is not a "search" within
the meaning of the Fourth Amendment. Even if such a viewing
constitutes a search, the Town says, it is either self-evidently
reasonable, or it is exempted from the Fourth Amendment's
operation by the "compelling 'special' need to look inside
people's homes" to satisfy the constitutional requirement that
taxation of all properties in the Town be uniform. In any
event, the Town says, one of the alleged horns is missing, so
there can be no dilemma.
¶18 The task before us is straightforward. First, we must
determine whether the Milewskis' situation affects the
constitutionally-protected rights they asserted. So we will
examine whether there is a due-process right to contest a tax
assessor's valuation of real property, and whether a tax
assessor's nonconsensual, warrantless inspection of the interior
of a home would be an unreasonable search. Second, if this
situation really does implicate two constitutionally-protected
rights, we will inquire into whether the exercise of one can be
conditioned on surrender of the other. And finally, if this
conditioning is impermissible, we must determine whether it
results from an inexorable statutory command, or is instead the
result of how the Town applied the statutes to the Milewskis.
10
No. 2015AP1523
A. Rights Claimed by the Milewskis
1. Due Process
¶19 The Milewskis were unable to challenge the revaluation
of their Property before the Board of Review because the Town
said Wis. Stat. § 70.47(7)(aa) rebuffs all those who do not
first submit to a tax assessor's inspection of the interior of
their homes. And they found the courthouse doors barred because
Wis. Stat. § 74.37(4)(a) requires them to follow the procedural
requirements of § 70.47, including the interior home inspection,
before filing an excessive assessment claim. So their taxes
have increased, but without any corresponding opportunity for
administrative or judicial review of the added burden.
¶20 The Milewskis say the Town may not impose a tax that
is not ultimately subject to judicial review without violating
their due-process rights. A due-process challenge requires the
complainant to establish two components. First, she must prove
she has been deprived of a recognized right. Aicher, 237
Wis. 2d 99, ¶80. And second, she must prove that she has not
been afforded process commensurate with the deprivation. Id.The focus of such claims is not on whether the State may
infringe the right in question, but whether it has engaged the
proper procedure in doing so. "In procedural due process
claims, the deprivation by state action of a constitutionally
protected interest in 'life, liberty, or property' is not in
itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law."
Zinermon v. Burch, 494 U.S. 113, 125 (1990). This
11
No. 2015AP1523
constitutional guarantee protects an individual from the
erroneous exercise of the State's authority. "Procedural due
process rules are meant to protect persons . . . from the
mistaken or unjustified deprivation of life, liberty, or
property." Carey v. Piphus, 435 U.S. 247, 259 (1978). "Such
rules 'minimize substantively unfair or mistaken deprivations
of' life, liberty, or property by enabling persons to contest
the basis upon which a State proposes to deprive them of
protected interests." Id. at 259–60.
¶21 The United States Constitution specifically extends
the guarantee of due process to the deprivation of property:
"No state shall . . . deprive any person of life, liberty, or
property, without due process of law . . . ." U.S. Const.
amend. XIV, § 1. Our Wisconsin constitution provides that
"[a]ll people are born equally free and independent, and have
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed." Wis. Const. art. 1, § 1. Although the text of the
U.S. and Wisconsin constitutional provisions differ, they
"provide identical procedural due process protections." Cty. of
Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 393, 588
N.W.2d 236 (1999).
¶22 For constitutional purposes, a tax is a deprivation of
property: "[E]xaction of a tax constitutes a deprivation of
property . . . ." McKesson Corp. v. Div. of Alcoholic
Beverages and Tobacco, Dept. of Business Regulation of Fla., 496
12
No. 2015AP1523
U.S. 18, 36 (1990). Consequently, a state imposing a tax "must
provide procedural safeguards against unlawful exactions in
order to satisfy the commands of the Due Process Clause." Id.¶23 We know the nature of these safeguards well: "The
elements of procedural due process are notice and an opportunity
to be heard, or to defend or respond, in an orderly proceeding,
adapted to the nature of the case in accord with established
rules." State v. Thompson, 2012 WI 90, ¶46, 342 Wis. 2d 674,
818 N.W.2d 904 (quoting 16C C.J.S. Constitutional Law § 1444, at
188 (2005)); see also Penterman v. Wis. Elec. Power Co., 211
Wis. 2d 458, 474, 565 N.W.2d 521 (1997) (Due Process "entitles
the individual to a fair opportunity to present his or her
claim."). The review must be "adequate, effective, and
meaningful." Bounds v. Smith, 430 U.S. 817, 822 (1977),
overruled in part on other grounds by Lewis v. Casey, 518
U.S. 343 (1996). Whether the process is pre-deprivation or
post, it must certainly occur:
[W]e have described the root requirement of the Due
Process Clause as being that an individual be given an
opportunity for a hearing before he is deprived of any
significant property interest, . . . [but] it is well
established that a State need not provide
predeprivation process for the exaction of taxes.
McKesson Corp., 496 U.S. at 37 (internal citations and marks
omitted).
¶24 The Milewskis have been subjected to a tax——a
deprivation of property——but they have been forbidden any
process by which to challenge it. So, absent an adequate
explanation for how this came to pass, they have been denied
13
No. 2015AP1523
their Fourteenth Amendment due-process rights.9 The Town says
there has been no violation because the Milewskis made the
9
The dissent says one must keep "two realities firmly in
mind":
¶126 One. The Town's assessor did not enter the
interior of the Milewskis' home. No search of the
Milewskis' home occurred.
* * *
¶128 Two, the Milewskis have received full due process
hearings in three courts——in the circuit court, in the
court of appeals, and in this court. Furthermore, the
Milewskis retained and exercised rights under the
statutes to a hearing in which they challenged the
assessment on specified grounds.
Dissent, ¶¶125-26, 128. The first of these "realities" is
important only if the second is true. It is not.
The Board of Review, relying on Wis. Stat. § 70.47(7)(aa),
denied the Milewskis' request to appear and present their
challenge to the reassessment because they had refused the home
inspection. The circuit court did not address the assessment
because it concluded there was no constitutional violation in
requiring the Milewskis to allow a home inspection as a
precondition to its challenge. The court of appeals reviewed
and affirmed this determination. And we are addressing the
constitutionality of the statutory scheme, not the assessment of
the Milewskis' home. So at no time have the Milewskis been able
to present their excessive assessment claim to any tribunal.
Not even the Town attempted the dissent's contra-factual
argument. Instead, it candidly acknowledged that the Milewskis
lost the right to challenge their assessment by refusing the
home inspection, stating, for example, that "the result of this
refusal is that they [the Milewskis] would be unable to
challenge the assessment." The dissent's position is not
supported by the facts or the Town itself.
(continued)
14
No. 2015AP1523
affirmative decision to deny the tax assessor an interior
inspection of their home. Foreclosing an administrative or
judicial review of the revaluation, they say, is the "legal,
logical, and natural result" of that decision, for to do
otherwise would be "inconsistent with well-established law on
the property owner's burden of proof because the homeowner has
the affirmative burden of proving that the fair market value is
different than the assessor's determination being challenged."
Thus, "[w]ithout putting the interior of their home——which
comprises about 70% of its value——into evidence," the Town
concludes, "the homeowners logically, and equitably, cannot meet
their burden of proving the fair market value is different from
what the assessor determines."
¶25 This argument conflates two important, but distinct,
principles. The right to a hearing is not the same thing as the
burden of proof one must satisfy by the end of that hearing.
Nor do the concepts protect the same interests. The former
ensures access to a neutral magistrate to resolve disputes and
is constitutionally guaranteed. The latter is a prudential
recognition that he who seeks to change the status quo must
So the most that can be said of the dissent's argument is
that the Milewskis have been able to litigate whether they
should be allowed to litigate the new tax assessment. That, of
course, is not the same thing as actually challenging the tax
assessment, as even the Town admits.
15
No. 2015AP1523
overcome its inertia, and is subject to adjustment based on
policy considerations.10
¶26 We agree with the Town that the Milewskis must be
prepared to offer evidence sufficient to overcome the assessor's
conclusion if they hope to change the Property's valuation. A
challenger must "in good faith present[] evidence to such board
[of review] in support of such objections and [make] full
disclosure before said board, under oath of all of that person's
property liable to assessment in such district and the value
thereof." Wis. Stat. § 70.47(7)(a). This obligation is
significant because the assessor's valuation is presumptively
correct. Wis. Stat. § 70.47(8)(i) ("The board shall presume
that the assessor's valuation is correct. That presumption may
be rebutted by a sufficient showing by the objector that the
valuation is incorrect."); Wis. Stat. § 70.49(2) ("The value of
all real and personal property entered into the assessment
10
As we noted in State v. Big John:
The question of which party has the burden of proof on
this issue is determined by the application of the
five-factor analysis outlined in McCormick, Handbook
of the Law of Evidence, § 337 at 787-89 (2d ed. 1972),
and adopted by this court in State v. McFarren, 62
Wis.2d 492, 499-503, 215 N.W.2d 459 (1974). The five
factors to be considered are: (1) the natural
tendency to place the burden on the party desiring
change; (2) special policy considerations such as
those disfavoring certain defenses; (3) convenience;
(4) fairness; and (5) the judicial estimate of
probabilities.
State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988).
16
No. 2015AP1523
roll . . . in all actions and proceedings involving such values,
[is] presumptive evidence that all such properties have been
justly and equitably assessed in proper relationship to each
other."). We express no opinion on whether the Milewskis will
be able to carry their burden of proof upon the contest of the
Property's value, but that has nothing to do with whether they
have the right to hazard the attempt. The Milewskis may not be
denied due process with respect to the revaluation of their
Property.11
2. Freedom From Unreasonable Searches
¶27 We next determine whether a tax assessor's warrantless
inspection of the interior of a home would be an unreasonable
search. On this subject, the Fourth Amendment to the United
States Constitution says:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
11
The dissent is concerned we are restoring the Milewskis'
due-process rights without penalizing them for exercising their
Fourth Amendment rights. Dissent, ¶183 ("According to the lead
opinion, a property owner can, without any adverse consequences,
refuse an assessor an actual view of the real property and
apparently can still contest the amount of the assessment.")
First, the suggestion that someone should be penalized for
exercising his constitutionally-protected rights is more than a
little chilling. And second, we have not said the Milewskis
will not suffer adverse consequences from refusing the home
inspection. As this paragraph recognizes, their choice may have
created substantial impediments to successfully challenging the
Town's reassessment. However, the consequences are not a
penalty for exercising their rights, but are instead the
potential result of applying required evidentiary standards to
their claim.
17
No. 2015AP1523
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. Its Wisconsin counterpart, found in
Article I, section 11 of the Wisconsin Constitution,12 is
substantively identical, and we normally interpret it
coextensively with the United States Supreme Court's
interpretation of the Fourth Amendment.13 See, e.g., State v.
Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing
State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752
N.W.2d 748).
¶28 The constitutionality of a tax assessor's inspection
of the interior of a home turns on three questions. First,
whether the inspection is a search at all within the meaning of
the Fourth Amendment. Second, whether the inspection (if it is
a search) fits within a recognized exception to the Fourth
Amendment's operation. And third, if no recognized exception
covers the inspection, whether it is nonetheless reasonable.
12
"The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the persons
or things to be seized." Wis. Const. art. I, § 11.
13
Our references to the Fourth Amendment throughout this
opinion also encompass Article 1, sec. 11 of the Wisconsin
Constitution unless otherwise noted.
18
No. 2015AP1523
a. Is an "Interior View" a "Search"?
¶29 Whether a tax assessor's "viewing" has constitutional
significance depends on what the term "search" meant at the time
of the Fourth Amendment's adoption. Kyllo v. United States, 533
U.S. 27, 34 (2001) (The court must "assur[e] preservation of
that degree of privacy against government that existed when the
Fourth Amendment was adopted."). To obtain a baseline
understanding of what manner of intrusion comprises a "search,"
the United States Supreme Court recently had reference to the
English case of Entick v. Carrington.14 See United States v.
Jones, 565 U.S. 400, 404-05 (2012). The Court had previously
described this case (Entick) as a "'monument of English
freedom'" that was "undoubtedly familiar to every American
statesman at the time the Constitution was adopted, and
considered to be the true and ultimate expression of
constitutional law . . . ." Brower v. Cty. of Inyo, 489
U.S. 593, 596 (1989) (internal marks omitted) (quoting Boyd v.
United States, 116 U.S. 616, 626 (1886) (overruled on other
grounds).
¶30 In Entick, the Jones Court found a close connection
between "searches" and the law of trespass. Jones, 565 U.S. at
405. There, Lord Camden admonished that "'[o]ur law holds the
property of every man so sacred, that no man can set his foot
upon his neighbour's close without his leave; if he does he is a
14
95 Eng. Rep. 807 (C.P. 1765).
19
No. 2015AP1523
trespasser, though he does no damage at all; if he will tread
upon his neighbour's ground, he must justify it by law.'"
Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).15
With that principle in mind, the Jones Court had no difficulty
concluding a search occurred when government agents attached a
tracking device to an individual's automobile. Id. at 404-05.
When "[t]he Government physically occupie[s] private property
for the purpose of obtaining information[,]" the Court said,
there is "no doubt that such a physical intrusion would have
been considered a 'search' within the meaning of the Fourth
Amendment when it was adopted." Id. at 404; State v. Sobczak,
2013 WI 52, ¶12, 347 Wis. 2d 724, 833 N.W.2d 59 (same).16
¶31 When the government proposes to enter a home to obtain
information relevant to levying a tax, we have even more precise
historical guidance at hand. "In order to ascertain the nature
of the proceedings intended by the fourth amendment to the
constitution under the terms 'unreasonable searches and
seizures,' it is only necessary to recall the contemporary or
15
Trespass, of course, is not the only government intrusion
that can cause a Fourth Amendment violation. United States v.
Jones, 565 U.S. 400, 411 ("we do not make trespass the exclusive
test" for identifying a Fourth Amendment violation).
16
"It has long been established that the Fourth Amendment
places the greatest protection around the home, as it was
drafted in part to codify 'the overriding respect for the
sanctity of the home that has been embedded in our traditions
since the origins of the Republic.'" State v. Sobczak,
2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Payton
v. New York, 445 U.S. 573, 601 (1980)).
20
No. 2015AP1523
then recent history of the controversies on the subject, both in
this country and in England." Boyd, 116 U.S. at 624-25. One of
those controversies, which still informs our view of the Fourth
Amendment, was the practice of granting revenue agents general
warrants to search homes for taxable items:
"Vivid in the memory of the newly independent
Americans were those general warrants known as writs
of assistance under which officers of the Crown had so
bedeviled the colonists. The hated writs of
assistance had given customs officials blanket
authority to search where they pleased for goods
imported in violation of British tax laws. They were
denounced by James Otis as 'the worst instrument of
arbitrary power, the most destructive of English
liberty, and the fundamental principles of law, that
ever was found in an English law book,' because they
placed 'the liberty of every man in the hands of every
petty officer.' The historic occasion of that
denunciation, in 1761 at Boston, has been
characterized as 'perhaps the most prominent event
which inaugurated the resistance of the colonies to
the oppressions of the mother country.'"
Payton v. New York, 445 U.S. 573, 583 n.21 (1980) (quoting
Stanford v. Texas, 379 U.S. 476, 481–82 (1965) (quoting Boyd,
116 U.S. at 616, 625)).
¶32 This history tells us that, at the time the Fourth
Amendment was adopted, a "search" occurred when a government
agent trespassed on private property in pursuit of revenue-
raising information. Our statutes preserve the home's sanctity
against revenue agents by making it clear that tax assessors
trespass if they enter a home without consent. See Wis. Stat.
§ 943.13(4m)(am)4. (no trespass exemption for tax assessors
entering residences or buildings within curtilage); see also
21
No. 2015AP1523
Wis. Stat. § 70.05(4m) ("A property owner may deny entry to an
assessor if the owner has given prior notice to the assessor
that the assessor may not enter the property without the
property owner's permission."). So, as Entick observed, and
Jones confirmed, if a tax assessor "'will tread upon his
neighbour's ground, he must justify it by law.'" Jones, 565
U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).
¶33 This is not, however, how the Town views its proposed
inspection of the Milewskis' home. It sees the Fourth Amendment
primarily through a procedural lens in which the purpose for the
government agent's presence in the home is less significant than
the manner by which he came to be there. It says no search
takes place under these circumstances because the assessor sends
a letter that provides "advance notice to homeowners when
requesting to view their home for an assessment," which
"explains the purpose behind the assessment, the right to refuse
the request and the consequences of that refusal." "[T]he
advance notice[] gives the homeowner ample opportunity to
question the legitimacy, nature, and scope of the assessment."
The interior view does not "involve a 'true search for
violations,'" and there are no "criminal consequences for
denying entry." Instead, refusal "result[s] only in possible
financial consequences that the homeowner is informed of before
choosing" whether to allow the tax assessor entry to her home.
These procedures, and their attendant limitations on a
government agent's discretion, inform the Town's conclusion that
22
No. 2015AP1523
no search occurs when an assessor enters a home in search of
something to tax.
¶34 The Town's argument, however, gets a little ahead of
itself. The question at this stage of the analysis is whether
the tax assessor would be performing a search within the meaning
of the Fourth Amendment by viewing the interior of the
Milewskis' home. Whether he gives advance notice of when the
viewing will occur, or provides assurance that refusing him an
audience will cause merely financial penalties, may or may not
have something to say about the reasonableness of a search, but
it says nothing about whether his "viewing" belongs in the
Fourth Amendment "search" category. The Jones Court cast that
query in strictly functional terms, declaring that a search
occurs when "[t]he Government physically occupie[s] private
property for the purpose of obtaining information." 565 U.S. at
404. The formalities surrounding the viewing do not define what
the viewing actually is.
¶35 The Town offered Wyman v. James as an example of how a
government agent may enter a home without triggering a search
within the meaning of the Fourth Amendment. 400 U.S. 309(1971). The eponymous Mrs. James applied for, and received,
financial benefits under the federal Aid to Families with
Dependent Children program ("AFDC"). Id. at 313-14. The State
of New York, in administering the AFDC program for state
residents, required periodic home visits by a caseworker to
ensure the beneficiaries were putting program funds to the
intended uses. See id. at 313-16. Mrs. James filed a civil
23
No. 2015AP1523
rights action alleging the home visits were searches that
violated the Fourth Amendment. Id. at 314-15.
¶36 The Supreme Court did not agree. It acknowledged that
the visits had both "rehabilitative and investigative" aspects,
but brushed off the latter because it "is given too broad a
character and far more emphasis than it deserves if it is
equated with a search in the traditional criminal law context."
Id. at 317. Concentrating instead on the consensual nature of
home visits, and the fact that withholding consent merely
stopped the flow of AFDC benefits, the Court found no search
within the meaning of the Fourth Amendment:
We note, too, that the visitation in itself is not
forced or compelled, and that the beneficiary's denial
of permission is not a criminal act. If consent to
the visitation is withheld, no visitation takes place.
The aid then never begins or merely ceases, as the
case may be. There is no entry of the home and there
is no search.
Id. at 317-18. Underlining the importance of consent to its
analysis, the Court signaled that the home visits could become
searches should they lose their consensual nature:
If however, we were to assume that a caseworker's home
visit, before or subsequent to the beneficiary's
initial qualification for benefits, somehow (perhaps
because the average beneficiary might feel she is in
no position to refuse consent to the visit), and
despite its interview nature, does possess some of the
characteristics of a search in the traditional sense,
we nevertheless conclude that the visit does not fall
within the Fourth Amendment's proscription. This is
because it does not descend to the level of
unreasonableness. It is unreasonableness which is the
Fourth Amendment's standard.
Id. at 318.
24
No. 2015AP1523
¶37 Wyman provides no assistance in determining whether
the tax assessor's proposed view of the interior of the
Milewskis' home is a Fourth Amendment search. It does not
actually define what manner of activity qualifies as a search
for Fourth Amendment purposes. Instead, it asks whether the
homeowner has excused the government agent from complying with
constitutional requirements at all. The Fourth Amendment, of
course, does not prohibit consensual searches. See, e.g.,
Florida v. Bostick, 501 U.S. 429, 439 (1991) ("The Fourth
Amendment proscribes unreasonable searches and seizures; it does
not proscribe voluntary cooperation"); see also, United States
v. Williams, 521 F.3d 902, 905 (8th Cir. 2008) ("Consensual
searches do not violate the Fourth Amendment . . . ."). The
Fourth Amendment is no barrier to consensual searches not
because the activity is not a search, but because consent
removes the search from Fourth Amendment scrutiny. So it is
only in the absence of consent that we need to determine whether
a certain activity has constitutional significance. Because
Wyman relied on consent as the decisional principle, it did not
explicitly decide whether the caseworker's activity in Mrs.
James' home constituted a search.
¶38 The Town argues that if the Milewskis and Mrs. James'
situations are not sufficiently comparable, we should analogize
this case to an analogy employed by the Wyman Court:
It seems to us that the situation is akin to that
where an Internal Revenue Service agent, in making a
routine civil audit of a taxpayer's income tax return,
asks that the taxpayer produce for the agent's review
25
No. 2015AP1523
some proof of a deduction the taxpayer has asserted to
his benefit in the computation of his tax. If the
taxpayer refuses, there is, absent fraud, only a
disallowance of the claimed deduction and a consequent
additional tax. The taxpayer is fully within his
"rights" in refusing to produce the proof, but in
maintaining and asserting those rights a tax detriment
results and it is a detriment of the taxpayer's own
making. So here Mrs. James has the "right" to refuse
the home visit, but a consequence in the form of
cessation of aid, similar to the taxpayer's resultant
additional tax, flows from that refusal. The choice
is entirely hers, and nothing of constitutional
magnitude is involved.
400 U.S. at 324.
¶39 This analysis offers no guidance and, indeed,
illustrates the limited utility of recursive analogies. An
analogy is helpful when it illuminates a central proposition by
considering it in a different, but logically related, context.
Building one analogy on another risks shifting the focus from
the central proposition to something peripheral, as occurred
here. The Wyman Court employed the IRS analogy in determining
whether the caseworker's home visit was constitutionally
reasonable. That is, it was not using the analogy to determine
whether the home visit was a search——it was assuming, as part of
its premises, that the visit was a search within the Fourth
Amendment's comprehension. So when the Town asserts a "viewing"
is not a search because, like "the hypothetical plaintiff in the
[Wyman] Court's example, Milewski and MacDonald face no criminal
penalties for refusing entry into their home[;] [t]he only
consequence is a tax detriment of their own making," it builds
its foundation on the IRS analogy's premise that the visit was a
search. Thus, the recursive analogies resulted in a petitio
26
No. 2015AP1523
principii error (positing an argument's conclusion in the
premises). Wyman's analogy, therefore, has nothing instructive
to say about whether an "interior viewing" is a search within
the meaning of the Fourth Amendment.
¶40 In determining whether a tax assessor conducts a
constitutionally-significant search when viewing the interior of
a home, we apply the elegantly simple Jones formulation: If a
government agent occupies private property for the purpose of
obtaining information, he is conducting a search within the
meaning of the Fourth Amendment. The Town's own argument
confirms this would be a search. It is the Town's central point
that a tax assessor must physically enter the Milewskis' home to
conduct an interior view. And by describing the viewing as "a
simple requirement that taxpayers disclose the information
relevant to the value of their home," the Town admitted the
purpose of the assessor's presence would be to obtain revenue-
related information. Thus, a tax assessor who enters a home to
conduct an "interior view" occupies private property for the
purpose of obtaining information and is therefore conducting a
search within the meaning of the Fourth Amendment.
b. Exception to the Fourth Amendment
¶41 The Town asserts that a tax assessor's search of a
home fits within the "special needs" exception to the Fourth
Amendment's protection. It refers us to City of Indianapolis v.
Edmond for instruction. 531 U.S. 32 (2000). There we find that
the United States Supreme Court has recognized a mélange of
27
No. 2015AP1523
circumstances in which searches are constitutionally reasonable
even in the absence of individualized suspicion of wrongdoing:
[W]e have upheld certain regimes of suspicionless
searches where the program was designed to serve
"special needs, beyond the normal need for law
enforcement." See, e.g., Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646 (1995) (random drug testing of
student-athletes); Treasury Emps. v. Von Raab, 489
U.S. 656 (1989) (drug tests for United States Customs
Service employees seeking transfer or promotion to
certain positions); Skinner v. Ry. Labor Execs. Assn.,
489 U.S. 602 (1989) (drug and alcohol tests for
railway employees involved in train accidents or found
to be in violation of particular safety regulations).
We have also allowed searches for certain
administrative purposes without particularized
suspicion of misconduct, provided that those searches
are appropriately limited. See, e.g., New York v.
Burger, 482 U.S. 691, 702–704 (1987) (warrantless
administrative inspection of premises of "closely
regulated" business); Michigan v. Tyler, 436 U.S. 499,
507–509, 511–512 (1978) (administrative inspection of
fire-damaged premises to determine cause of blaze);
Camara v. Mun. Court of City and Cty. of San
Francisco, 387 U.S. 523, 534–539 (1967)
(administrative inspection to ensure compliance with
city housing code).
Edmond, 531 U.S. at 37. The Town asks us to add tax assessment
searches to this potpourri because revenue collection is a
"special need," and the search is "not aimed at all at criminal—
—or even civil code——enforcement."
¶42 Whatever the merits of those exceptions, the Town has
not directed our attention to any case suggesting that assessing
or collecting taxes is a need so special that it excuses
compliance with the Fourth Amendment. Nor have we found any.
To the contrary, G.M. Leasing Corp. v. United States, 429
U.S. 338 (1977), teaches that the Fourth Amendment admits of no
28
No. 2015AP1523
"tax revenue" special exception. In that case, the Court
considered whether United States revenue agents could enter a
corporation's business offices without a warrant to seize
various books and records useful to their tax collection
efforts. See id. at 352-53. The United States made an argument
similar to what the Town offers us: "The respondents argue that
there is a broad exception to the Fourth Amendment that allows
warrantless intrusions into privacy in the furtherance of
enforcement of the tax laws." Id. at 354. It also maintained
that "the history of the common law in England and the laws in
several States prior to the adoption of the Bill of Rights
support the view that the Fourth Amendment was not intended to
cover intrusions into privacy in the enforcement of the tax
laws." Id. at 355.
¶43 After noting the government's unquestionable authority
to "lay and collect Taxes," the Court nonetheless recognized
that "one of the primary evils intended to be eliminated by the
Fourth Amendment was the massive intrusion on privacy undertaken
in the collection of taxes pursuant to general warrants and
writs of assistance." Id. The Court found no evidence
supporting the United States' assertion that the Fourth
Amendment was historically understood as not reaching matters of
revenue. Id. ("We do not find in the cited materials anything
approaching the clear evidence that would be required to create
so great an exception to the Fourth Amendment's protections
against warrantless intrusions into privacy."). So the Court
affirmed the Fourth Amendment's application to searches in aid
29
No. 2015AP1523
of tax revenues: "The intrusion into petitioner's office is
therefore governed by the normal Fourth Amendment rule that
'except in certain carefully defined classes of cases, a search
of private property without proper consent is "unreasonable"
unless it has been authorized by a valid search warrant.'" G.M.
Leasing Corp., 429 U.S. at 358 (quoting Camara, 387 U.S. at 528–
29). The Supreme Court's reasoning neatly answers the Town's
argument, and so we decline the invitation to declare that
administering the property tax statutes is a "special need" that
exempts tax assessment searches from the Fourth Amendment's
proscriptions.17
c. Is an "Interior View" a Reasonable Search?
¶44 Because the Fourth Amendment forbids only
"unreasonable" searches, we must determine whether——
notwithstanding the inapplicability of any recognized exception
to the Fourth Amendment——it is nonetheless reasonable to require
homeowners to submit to a tax assessor's periodic inspection of
the interior of their homes. The basic framework of our inquiry
is as follows:
Under our general Fourth Amendment approach we examine
the totality of the circumstances to determine whether
a search is reasonable within the meaning of the
Fourth Amendment. Whether a search is reasonable is
17
The dissent justifies nonconsensual, warrantless home
inspections as an aid in administration of our property tax
laws. But the United States Supreme Court has already rejected
that rationale. See G.M. Leasing Corp. v. United States, 429
U.S. 338 (1977). The dissent does not explain how this
justification can co-exist with G.M. Leasing Corp.
30
No. 2015AP1523
determined by assessing, on the one hand, the degree
to which it intrudes upon an individual's privacy and,
on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.
Samson v. California, 547 U.S. 843, 848 (2006) (internal marks
and citations omitted). Because we are addressing the propriety
of a potential warrantless home search, we presume it would be
unreasonable and therefore unconstitutional. "It is a 'basic
principle of Fourth Amendment law' that searches and seizures
inside a home without a warrant are presumptively unreasonable."
Payton, 445 U.S. at 586; see also Camara, 387 U.S. at 528-29("[O]ne governing principle, justified by history and by current
experience, has consistently been followed: except in certain
carefully defined classes of cases, a search of private property
without proper consent is 'unreasonable' unless it has been
authorized by a valid search warrant.") (citing Stoner v.
California, 376 U.S. 483 (1964); United States v. Jeffers, 342
U.S. 48 (1951) overruled on other grounds by Rakas v. Illinois,
439 U.S. 128 (1978); McDonald v. United States, 335 U.S. 451(1948); Agnello v. United States, 269 U.S. 20 (1925)). It is
the Town's burden to demonstrate a nonconsensual, warrantless
search of the Milewskis' home is reasonable even though it does
not fit within a recognized exception to the Fourth Amendment.
¶45 The Town does not say there is anything peculiar about
the Milewskis' home that requires an interior inspection. In
fact, its thesis is quite the contrary——it says that every home
in the Town of Dover must be open to a tax assessor's inspection
without any particularized demonstration of need. Therefore, we
31
No. 2015AP1523
understand the Town to be asking us to adopt a bright-line rule
that warrantless home searches, conducted by tax assessors in
conformance with the requirements of Wis. Stat. ch. 70, are
reasonable as a matter of law.
¶46 The Town says such searches are reasonable for three
reasons. First, they are useful in ensuring compliance with our
constitution's "Uniformity Clause." Second, the intrusion is
relatively minor. And third, a warrant would be a mere
formality, which demonstrates such searches are always
reasonable.
i. The Uniformity Clause
¶47 The process by which Wisconsin municipalities raise
revenues makes a proper valuation of real property not just
important, but essential to fulfillment of the constitutional
command that "[t]he rule of taxation shall be uniform . . . ."
See Wis. Const. art. VIII, § 1. The process begins with the
municipality calculating how much revenue it needs from property
taxes. See Jack Stark, The Uniformity Clause of the Wisconsin
Constitution, 76 Marq. L. Rev. 577 (1993). It then determines
the total value of taxable property in the jurisdiction. Id. at
577-78. Finally, it sets the mill rate18 at a level that will
18
Investopedia defines mill rate as follows: "The mill
rate, also referred to as the millage rate, is a figure
representing the amount per $1,000 of the assessed value of
property, which is used to calculate the amount of property tax.
The term 'millage' is derived from a Latin word meaning
'thousandth,' with 1 mill being equal to 1/1,000th of a currency
unit." See Mill Rate, Investopedia,
http://www.investopedia.com/terms/m/millrate.asp (last visited
June 28, 2017).
32
No. 2015AP1523
generate the required revenue. Id. at 578. A property owner
calculates his tax liability by multiplying the mill rate by the
assessed value of his property. Id. Raising or lowering the
assessed value of a particular property, therefore, does not
change the amount of revenue the municipality raises. It simply
changes the allocation of the tax burden amongst the
municipality's property owners. The purpose of the Uniformity
Clause is to ensure the tax burden is allocated proportionally
to the value of each person's property. Gottlieb v. City of
Milwaukee, 33 Wis. 2d 408, 426, 147 N.W.2d 633 (1967) (The
purpose of the uniformity clause is "to protect the citizen
against unequal, and consequently unjust taxation." (quoting
Weeks v. City of Milwaukee, 10 Wis. 186, 201 (1860)).
¶48 Satisfying the Uniformity Clause requires not just a
uniform tax rate, but a uniform method of determining the value
of the property to which that rate will apply.
The act of laying a tax on property consists of
several distinct steps, such as the assessment or
fixing of its value, the establishing of the rate,
etc.; and in order to have the rule or course of
proceeding uniform, each step taken must be uniform.
The valuation must be uniform, the rate must be
uniform. Thus uniformity in such a proceeding becomes
equality; and there can be no uniform rule which is
not at the same time an equal rule, operating alike
upon all the taxable property throughout the
territorial limits of the state, municipality or local
subdivision of the government, within and for which
the tax is to be raised.
Knowlton v. Bd. of Supervisors of Rock Cty., 9 Wis. 410, 420-21
(1859). Our statutes prescribe that uniform methodology: "Real
property shall be valued by the assessor in the manner specified
33
No. 2015AP1523
in the Wisconsin property assessment manual provided under
s. 73.03(2a) from actual view or from the best information that
the assessor can practicably obtain, at the full value which
could ordinarily be obtained therefor at private sale." Wis.
Stat. § 70.32(1).
¶49 The Town asserts its home searches are necessary to
carry out the Uniformity Clause mandate. It notes that the
Wisconsin Property Assessment Manual19 says "the assessor must
make a thorough, detailed, and objective viewing of each
property, noting relevant characteristics as they relate to
physical condition, effective age, and functional utility."
Wis. Dep't of Revenue, Wisconsin Property Assessment Manual, 12-
20 (2017) (hereinafter "WPAM"). With respect to real property,
Gardiner says the Manual insists on an interior view of all
buildings: "In the case of real property, actual view requires
19
The Wisconsin Property Assessment Manual is published by
the Wisconsin Department of Revenue as required by statute. The
manual must accomplish the following:
The manual shall discuss and illustrate accepted
assessment methods, techniques and practices with a
view to more nearly uniform and more consistent
assessments of property at the local level. The
manual shall be amended by the department from time to
time to reflect advances in the science of assessment,
court decisions concerning assessment practices,
costs, and statistical and other information
considered valuable to local assessors by the
department.
Wis. Stat. § 73.03(2a).
34
No. 2015AP1523
a detailed viewing of the interior and exterior of all buildings
and improvements and the recording of complete cost, age, use,
and accounting treatments." Id. at 10-55. Gardiner also refers
to a number of appraisal guidelines emphasizing the importance
of interior inspections.
¶50 The Town and Gardiner are likely right that an
interior view of the Milewskis' home would be the most direct
method of obtaining the information necessary to perform a
revaluation. But this is only one of the statutorily-prescribed
methods of developing a valuation: "Real property shall be
valued . . . from actual view or from the best information that
the assessor can practicably obtain . . . ." Wis. Stat.
§ 70.32(1) (emphasis added). The statute gives the assessor two
potential sources of information with which to develop a
valuation. It lists those sources in the disjunctive, and
suggests no preference for one over the other.20 The Manual
acknowledges and reflects these options. WPAM at 10-55 ("The
statutes require that real . . . property be valued from actual
view or the best information obtainable." (Emphasis added.)).
20
"[S]tatutory interpretation 'begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 612 N.W.2d 659).
35
No. 2015AP1523
So the plain meaning of the statute is that an assessor may
develop a valuation out of either source of information.21
¶51 The Town's actions, as well as other statutes, tell us
that the Uniformity Clause does not require an interior
inspection of the Milewskis' home. A homeowner has a statutory
right to deny a tax assessor entry, and an assessor who enters
anyway is a trespasser. See Wis. Stat. § 70.05(4m), Wis. Stat.
§ 943.13(4m)(am)4. Yet, securing one's property against the tax
assessor does not grind the valuation mechanism to a halt, as
the Town itself demonstrated. The Town proved itself capable of
valuing the Milewskis' home notwithstanding its inability to
perform an interior inspection. It may be that the valuation is
incorrect, as the Milewskis claim, but the Town presumably
sought the "best information that the assessor [could]
practicably obtain", as allowed by Wis. Stat. § 70.32(1), and
developed the valuation accordingly. If proceeding under this
alternative was not consistent with the Uniformity Clause, then
the Town indicts itself for violating the constitution by
assigning a value to the Milewskis' home without an interior
21
The dissent says these really are not disjunctive
options, and spends most of its analytical space trying to empty
all meaning out of the second option into the first. But if the
second option really means nothing more than the first, then the
legislature acted frivolously when it added that option to the
statute. See I Sandborn & Berryman Ann. Stats. (1889) § 1052.
We try not to treat legislative enactments as surplusage. State
ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633,
¶46 ("Statutory language is read where possible to give
reasonable effect to every word, in order to avoid
surplusage.").
36
No. 2015AP1523
inspection. And if the Town based its valuation on something
other than an "actual view" or the "best information"
practicably available, it has not said what it was or where it
obtained the authority to do so. Thus, the Town cannot argue,
without contradicting itself, that the Uniformity Clause
requires an interior inspection while simultaneously taxing the
Milewskis based on a valuation it developed without such an
inspection.
¶52 Finally, if the Uniformity Clause does not allow
valuations based on the "best information" option (the option
the Town appears to have exercised), then the constitutionality
of Wis. Stat. § 70.32(1) becomes suspect. But no one has made
such an argument, and because we presume our statutes are
constitutional, we will not indulge any such speculation. See,
e.g., In re Gwenevere T., 333 Wis. 2d 273, ¶46 ("Statutes are
generally presumed constitutional" and we will not find
otherwise unless "there is proof beyond a reasonable doubt that
the statute is unconstitutional."). Thus, we conclude that
although an interior inspection may be useful, convenient, and
expedient in developing a valuation, the Uniformity Clause does
not require it.
ii. Minor Intrusion
¶53 The home does not stand on the same footing as other
spaces protected by the Fourth Amendment: "[W]hen it comes to
the Fourth Amendment, the home is first among equals." Florida
v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013). We do
37
No. 2015AP1523
not equivocate on this principle. "There can be no doubt that
'the Fourth Amendment has drawn a firm line at the entrance to
the house'" and that "it is our duty to zealously guard that
line." Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445
U.S. at 590).
¶54 So when the Town says a tax assessor's uninvited visit
is a "relatively minor" intrusion in one's home, we look closely
at what he proposes to do there. Gardiner said it would conduct
a "detailed viewing of the interior . . . of all buildings and
improvements and the recording of complete cost, age, use, and
accounting treatments." It says "[i]t is essential that the
assessor perform a thorough, detailed, and objective viewing of
each property" that is "field verified and accurate." Part of
what Gardiner would be seeking is evidence of the home's
"effective age," which requires it to carefully consider "abuse,
neglect, general maintenance, and all other influences on the
physical condition of the improvements." This search requires
the assessor to "inspect the interior of a minimum of 90%" of
the home. In the process of the search, the assessor
scrutinizes such personal spaces as bedrooms, kitchens,
basements, and bathrooms. If this was a medical examination,
"minor intrusion" is not the description that would come to
mind.
¶55 The Town and Gardiner also say such searches are
relatively minor intrusions because they are preceded by notice,
and the homeowner has an opportunity to schedule the search. It
says this procedure even "gives homeowners time to tuck away any
38
No. 2015AP1523
personal property they do not want the assessor to see." While
this procedural politeness is certainly welcome, it does nothing
to detract from the offense given by the search itself. As Boyd
recognized, the Fourth Amendment's principles "apply to all
invasions on the part of the government and its employees of the
sanctity of a man's home and the privacies of life." 116 U.S.
at 630. The Fourth Amendment is less concerned with the
politeness with which the government agent enters a home than it
is with the fact he is there at all. "It is not the breaking of
his doors, and the rummaging of his drawers, that constitutes
the essence of the offense; but it is the invasion of his
indefeasible right of personal security, personal liberty, and
private property . . . ." Id.¶56 The Town further asserts the intrusion is minor
because it "is clearly less than in searches where the
government is checking the homeowner's compliance with civil or
criminal rules and the homeowner faces the specter of being
found guilty of violations and having to pay fines or criminal
consequences." That may be true, but it misapprehends the
significance of this constitutionally-protected right. The
purpose of the Fourth Amendment is not to provide an opportunity
to secret away the fruits and instrumentalities of crime
(although it can sometimes have that incidental effect). The
point is to protect a person's right to be secure in one's home,
to lie in repose, or partake of what activities one wishes, free
of the government's watchful eye. The Fourth Amendment's
promise is that a person may stand in his door and tell the
39
No. 2015AP1523
government agent "you shall not pass": "[P]hysical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed . . . ." United States v. U.S. Dist.
Court for E. Dist. of Mich., So. Div., 407 U.S. 297, 313 (1972).
¶57 The intrusiveness of a search lies on a continuum; a
pat-down incident to a Terry stop22 might lie near one end, while
towards the other end lies a search of one's home so
microscopically punctilious that it can pry even into the
owner's most private of thoughts.23 Somewhere along that
continuum the government hits the zealously guarded "firm line
22
Terry v. Ohio, 392 U.S. 1 (1968).
23
See State ex rel. Two Unnamed Pet'rs v. Peterson, 2015
WI 85, ¶18, 363 Wis. 2d 1, 866 N.W.2d 165 (the sought-after
information included emails on computers seized during the
search).
40
No. 2015AP1523
at the entrance of the house." Beyond that line there are no
minor intrusions.24
iii. Warrant
¶58 The Town asserts we may deduce the reasonableness of a
tax assessor's search by considering what an application for an
administrative search warrant might say. Because the assessor
has the duty to inspect the interior of everyone's home, the
Town argues, every application for an administrative warrant
would be the same, and would simply repeat the contents of the
notice already sent to the homeowner. With no requirement to
find a particularized need for the search, the argument goes,
the warrant application process would be a kabuki play ending
with the magistrate's predestined approval. If every
application necessarily results in issuance of a warrant, then
such searches are categorically reasonable.
24
One of the concurrences says this statement is too broad.
Justice Ziegler's concurrence, ¶103. This should be an entirely
unremarkable statement, and it is troubling that, apparently, it
is not. If we cannot rouse ourselves enough to say this, then
maybe Justice Ann Walsh Bradley is right when she said, just
this term, that our jurisprudence "continues the erosion of the
Fourth Amendment." State v. Floyd, 2017 WI ___, ¶48, ___
Wis. 2d___, ___ N.W.2d ___ (Ann Walsh Bradley, J., dissenting).
And if that is the case, then we should stop making grand-
sounding statements like "There can be no doubt that 'the Fourth
Amendment has drawn a firm line at the entrance to the house'"
and that "it is our duty to zealously guard that line."
Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445 U.S. at 590).
We should say what we mean, and if what we mean is that finding
an uninvited government agent trespassing in one's home can be a
"minor" intrusion, then it would be far more accurate to say
that we lackadaisically observe a permeable line somewhere in or
around the house.
41
No. 2015AP1523
¶59 We find a parallel to the Town's argument in Camara.
There, the Court considered whether a municipal health inspector
must obtain a warrant to annually conduct routine interior
inspections for evidence of building code violations. It was
asserted that the "decision to inspect an entire municipal area
is based upon legislative or administrative assessment of broad
factors such as the area's age and condition." Id. 387 U.S. at
532. Thus, "[u]nless the magistrate is to review such policy
matters, he must issue a 'rubber stamp' warrant which provides
no protection at all to the property owner." Id.¶60 The Camara Court disagreed. It noted that in a
warrantless inspection regime "the occupant has no way of
knowing whether enforcement of the municipal code involved
requires inspection of his premises, no way of knowing the
lawful limits of the inspector's power to search, and no way of
knowing whether the inspector himself is acting under proper
authorization." Id. This leaves the building's occupant at the
mercy of "the discretion of the official in the field." Id.The warrant requirement exists for the specific purpose of
limiting such discretion: "This is precisely the discretion to
invade private property which we have consistently circumscribed
by a requirement that a disinterested party warrant the need to
search." Id. at 532-33. It concluded that a statutorily-
prescribed search regime was no substitute for a neutral
magistrate's review before intruding in someone's home. "We
simply cannot say that the protections provided by the warrant
procedure are not needed in this context; broad statutory
42
No. 2015AP1523
safeguards are no substitute for individualized review,
particularly when those safeguards may only be invoked at the
risk of a criminal penalty." Id. at 533.
¶61 A warrant requirement here would be even more
justified than in Camara. There, the health inspector had an
indisputable statutory obligation to conduct interior searches.
The same is not true here. As we discussed above, the tax
assessor may base his valuation on either an actual view of the
home or, instead, the "best information" practicably available
to him. If he believes the "best information" available still
leaves him with insufficient data on which to build a
constitutionally-sound valuation for a specific home, he may
explain why that is so in his application for an administrative
warrant. As in Camara, the warrant will also perform the
salutary function of advising the homeowner of the lawful basis
for the inspection of his home, describing the search's proper
limits, and identifying the assessor as one with authority to
search. A warrant requirement in these circumstances would be
no meaningless paper-shuffle.25
* * *
¶62 A tax assessor's inspection of a home's interior is a
search within the meaning of the Fourth Amendment, and so it is
25
Notwithstanding the striking similarities between the
legislative schemes at issue both here and in Camara v.
Municipal Court of City and County of San Francisco, 387
U.S. 523 (1967), the dissent does not explain why San Francisco
needed a warrant, but the Town of Dover does not.
43
No. 2015AP1523
presumptively unreasonable——and therefore unconstitutional——in
the absence of a warrant. The Town has offered nothing that
overcomes that presumption, and so we find that a tax assessor's
warrantless search of a home would be unconstitutional without
consent.
B. The Dilemma
¶63 So the Milewskis really did, and do, face a dilemma.
They have a right to challenge the revaluation of their
Property, as well as a right to prevent the tax assessor from
inspecting the interior of their home without consent. The
question now is whether the Town may require them to surrender
one as the price for exercising the other. We all learned how
to address this type of situation when we were children: Two
wrongs don't make a right. It would have been a constitutional
wrong to perform a warrantless search of the Milewskis' home in
search of taxable value, and it was in fact a constitutional
wrong to deprive them of their due process rights. Forcing a
person to choose between constitutional injuries does not make
the one he chooses any less injurious.
¶64 The purpose of giving a right constitutional stature
is to protect it from legislative or executive suspension. If,
instead of setting two rights at odds, a statute flatly banned
judicial review of a tax assessor's revaluation of real
property, a brief recitation of our due-process catechism would
summarily consign it to the realm of unconstitutional acts.
Likewise, a legislative act authorizing an unreasonable search
of a person's home would experience a similarly swift demise.
44
No. 2015AP1523
Because we can so easily dispatch such obvious assaults, it
would be odd if what cannot be done directly could yet be
accomplished indirectly through the expedient of juxtaposing one
constitutional right against another.
It would be a palpable incongruity to strike down an
act of state legislation which, by words of express
divestment, seeks to strip the citizen of rights
guaranteed by the federal Constitution, but to uphold
an act by which the same result is accomplished under
the guise of a surrender of a right in exchange for a
valuable privilege which the state threatens otherwise
to withhold.
Frost v. R.R. Comm'n of Cal., 271 U.S. 583, 593 (1926).26
¶65 The attempt to negate one constitutional right by
pitting it against another is a gambit not unknown to the law.
One of the earlier cases to address this situation, Simmons v.
United States, 390 U.S. 377, 394 (1968), considered whether a
defendant must choose between his Fourth and Fifth Amendment
rights. There, the FBI had conducted a search that netted a
suitcase belonging to one of the defendants, Mr. Garrett, which
contained incriminating evidence. Id. at 380-81. Mr. Garret
faced the same type of dilemma as the Milewskis. Under the
rules then obtaining, a motion to suppress the evidence as
unconstitutionally procured would require Mr. Garrett to testify
26
A sophisticated statutory scheme that deprives the
Milewskis of either their Fourth or Fourteenth Amendment rights
is no more acceptable than a blunt exercise of legislative
authority that accomplishes the same thing. See, e.g., Lane v.
Wilson, 307 U.S. 268, 275 (1939). ("The [Fifteenth] Amendment
nullifies sophisticated as well as simple-minded modes of
discrimination . . . .").
45
No. 2015AP1523
that the suitcase belonged to him, but if he did so and the
motion failed, his suppression testimony could be used against
him at trial. Id. at 389-91. The Court observed that, in
contemplating his litigation strategy, "Garret was obliged
either to give up what he believed, with advice of counsel, to
be a valid Fourth Amendment claim or, in legal effect, to waive
his Fifth Amendment privilege against self-incrimination." Id.
at 394. He opted for the suppression motion, which failed, and
the government used his suppression testimony to obtain a
conviction. See id. at 389. The Simmons Court recognized the
"undeniable tension" this type of situation creates, and
concluded that it is "intolerable that one constitutional right
should have to be surrendered in order to assert another." Id.
at 394.
¶66 The Eleventh Circuit Court of Appeals considered a
similar undeniable tension, but there it was between the First
and Fourth Amendments. Bourgeois v. Peters, 387 F.3d 1303 (11th
Cir. 2004). Mr. Bourgeois wished to attend a political protest,
but the city of Columbus, Georgia required all those entering
the protest site to submit to a metal detector search. Id. at
1306-07. The City argued that relinquishing one of the
constitutional rights was consensual because no one was under an
obligation to attend the protest. See id. at 1324. Those who
valued their speech and assembly rights more highly than their
right to be free of unreasonable searches, the City said, would
voluntarily submit to a search. See id. Those who valued their
Fourth Amendment rights more highly would forego attendance at
46
No. 2015AP1523
the protest. See id. Either way, the potential attendees knew
the price of exercising their rights, and chose accordingly.
See id. There is more than an echo of this argument in the
Court of Appeals opinion, which reasoned that the Milewskis
"were well informed of the repercussions of refusing Gardiner's
reasonable request to view the interior of their home, and
Plaintiffs chose to abandon their right to challenge the tax
assessment before the BOR." Milewski v. Town of Dover, No.
2015AP1523, unpublished slip op., ¶21.
¶67 The Bourgeois court succinctly described the problem
with this type of reasoning: "[T]he very purpose of the
unconstitutional conditions doctrine is to prevent the
Government from subtly pressuring citizens, whether purposely or
inadvertently, into surrendering their rights." Bourgeois, 387
F.3d at 1324-25. It's troubling when the price of a
discretionary governmental benefit is loss of a constitutional
right; it's simply unacceptable when the State requires a person
to sideline one constitutional right before exercising another.
As the Bourgeois court observed, "[t]his case presents an
especially malignant unconstitutional condition because citizens
are being required to surrender a constitutional right—freedom
from unreasonable searches and seizures—not merely to receive a
discretionary benefit but to exercise two other fundamental
rights—freedom of speech and assembly." Id. at 1324. Worse
yet, there is no discernible principle that would limit the
malignancy. "If the state may compel the surrender of one
constitutional right as a condition of its favor, it may, in
47
No. 2015AP1523
like manner, compel a surrender of all." Frost, 271 U.S. at
594. We agree with the Frost Court's observation that "[i]t is
inconceivable that guaranties embedded in the Constitution of
the United States may thus be manipulated out of existence."
Id.; see also Smith v. Allwright, 321 U.S. 649, 664 (1944)
("Constitutional rights would be of little value if they could
be thus indirectly denied.").
¶68 The Milewskis exercised their right to deny the tax
assessor's request to inspect the interior of their home. For
the exercise of that constitutionally-protected right, they lost
the ability to contest their increased tax burden.27 The
27
One of the concurrences favors resolving this case on
statutory grounds——as a means of avoiding constitutional issues—
—by interpreting "view" in Wis. Stat. § 70.47(7)(aa) to mean
only "exterior view." Chief Justice Roggensack's concurrence,
¶92 ("[I]nterpreting 'view such property' under Wis. Stat.
§ 70.47(7)(aa) to be satisfied by an exterior view of the
property avoids the possibility that the statutory scheme would
operate to infringe the due process rights of a taxpayer by
denying the taxpayer the opportunity to be heard."). Because
the Milewskis offered Gardiner an exterior view, the concurrence
concludes, they satisfied the statute and should have been
allowed to challenge the assessment. Id., ¶97. But this
resolution doesn't avoid the constitutional issue, it just
avoids talking about it.
(continued)
48
No. 2015AP1523
constitution may not be put at odds with itself, and we do not
countenance penalties on the exercise of constitutional rights.28
Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551(1956) (preventing local government from conditioning right to
due process on disavowal of the Fifth Amendment protection
against self-incrimination); Shelton v. Tucker, 364 U.S. 479(1960) (preventing local government from conditioning employment
on impairment of constitutionally-protected free association
rights); see also Harman v. Forssenius, 380 U.S. 528, 540 (1965)
("It has long been established that a State may not impose a
The limiting construction the concurrence would place on
"view," it says, is necessary to "save the constitutionality of
the statutory scheme." Id., ¶94. It must have been the
interior inspection that put the statute at risk because that's
what the concurrence would exclude from the scope of the term
"view." And although it didn't say why the interior view
created constitutional peril, it must have been that it would
violate the Fourth Amendment. If that were not so, then no
"saving" construction would be necessary. So the Chief Justice
must have concluded, just as we did, that a nonconsensual,
warrantless interior inspection would violate the Fourth
Amendment. The only difference between her conclusion and ours
is that we said it aloud, while she said it sotto voce. We
should say such things aloud.
28
The dissent says revoking someone's due process rights is
a reasonable "constitutional inducement" to obtain a person's
consent to a search of one's home. See dissent, ¶170.
Constitutionally valid consent, however, must be given freely
and voluntarily. See State v. Artic, 2010 WI 83, ¶32, 327
Wis. 2d 392, 786 N.W.2d 430 ("The State bears the burden of
proving that consent was given freely and voluntarily . . . .").
Stated in the negative, effective consent cannot be "the product
of duress or coercion, express or implied . . . ." Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973). Threatening someone
with the loss of a constitutional right sounds an awful lot like
"duress or coercion."
49
No. 2015AP1523
penalty upon those who exercise a right guaranteed by the
Constitution." (citing Frost, 271 U.S. at 593)).29 The Milewskis
suffered an abridgement of their Fourteenth Amendment rights
solely because they exercised their Fourth Amendment rights,
which is a real and immediate constitutional injury.30
29
The Harman Court considered a Virginia statute that
forced voters to choose between (a) an onerous yearly
registration process and (b) payment of a poll tax. The Court
observed that the latter option violated the 24th Amendment,
while the former acted as a substantial encumbrance on "[t]he
right to vote freely for the candidate of one's choice[, which]
is of the essence of a democratic society . . . ." Harman v.
Forssenius, 380 U.S. 528, 540 (1965) (quoting Reynolds v. Sims,
377 U.S. 533, 555 (1964)). "Restrictions on that right," it
said, "strike at the heart of representative government."
Harman, 380 U.S. at 540 (quoting Reynolds, 377 U.S. at 555). So
Virginia voters were faced with a Milewski-like conundrum:
Submit to an unconstitutional poll tax, or suffer an encumbrance
on the right to vote that strikes at the heart of representative
government. The Harman Court concluded Virginia could not put
its citizens to that choice.
30
One of the concurrences is concerned by our decision to
opine on the "unconstitutional conditions doctrine" because it
was not briefed. Justice Ziegler's concurrence, ¶101. It is
fair to say this subject comprised virtually the entirety of the
Milewskis' briefing. As relevant here, the doctrine expresses
the basic principle that the State may not put constitutional
rights at odds with each other such that a person must surrender
one as the price of exercising the other. See, e.g., Slowchower
v. Bd. of Higher Ed. of City of New York, 350 U.S. 551 (1956);
Simmons v. United States, 390 U.S. 377 (1968); Bourgeois v.
Peters, 387 F.3d 1303 (11th Cir. 2004).
That is precisely, and only, what the Milewskis argued.
They said they have a due-process right to challenge their tax
reassessment, they have the simultaneous right to prevent
government agents from searching their home, and they said the
statutes told them they had to choose between those rights. We
have not addressed anything the parties have not briefed.
(continued)
50
No. 2015AP1523
¶69 The only remaining question is whether application of
Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) will invariably cause
this injury under all circumstances. If they will, we must
declare them unconstitutional on their face to the extent they
foreclose judicial review of a tax assessor's revaluation.31 If
they do not, of necessity, inflict this injury, then the
constitutional infirmity lies only in how they were applied to
the Milewskis. The Milewskis say their challenge is the latter,
while the Town says the Milewskis are really arguing that the
statutes are facially unconstitutional.
The concurrence also says existing cases demonstrate the
unconstitutional conditions doctrine is applicable only when the
State conditions access to a government-provided benefit upon
surrender of a constitutional right. Justice Ziegler's
concurrence, ¶101. While courts most frequently discuss the
doctrine in that context, they also address it in the context of
juxtaposed constitutional rights (as we described above). In
any event, concluding from this that the doctrine protects
access to government benefits but not constitutional rights is
to make government benefits a higher order of rights than those
protected by our Constitutions. Neither law nor logic supports
such a proposition.
Finally, the concurrence agrees the Milewskis could not be
constitutionally required to choose between their Fourth and
Fourteenth Amendment rights. Justice Ziegler's concurrence,
¶100. But it does not explain how or why it would reach that
conclusion without aid of the very principles it rejects.
31
Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786
N.W.2d 385 ("[A] facial constitutional challenge attacks the law
itself as drafted by the legislature, claiming the law is void
from its beginning to the end and that it cannot be
constitutionally enforced under any circumstances . . . .").
51
No. 2015AP1523
¶70 We find only that Wis. Stat. §§ 70.47(7)(aa) &
74.37(4)(a) were unconstitutionally applied to the Milewskis.
The former provision states, in its entirety:
No person shall be allowed to appear before the board
of review, to testify to the board by telephone or to
contest the amount of any assessment of real or
personal property if the person has refused a
reasonable written request by certified mail of the
assessor to view such property.
Wis. Stat. § 70.47(7)(aa). The statute does not, by its express
terms, say where the assessor will be when he conducts his
"view" of the property. However, it does assume he will be
somewhere that requires the owner's consent. If it were
otherwise, there would be no need to ask permission——the
assessor could simply conduct the "view" without contacting the
owner at all. It is not immediately apparent to us that a Venn
diagram of "places where an assessor may not be without consent"
and "places the Fourth Amendment protects against unreasonable
searches" would depict completely overlapping circles. To the
extent they diverge, the statutory provision is not facially
unconstitutional. This question was not addressed directly, and
nothing in the parties' briefs indicates such a divergence is
not possible, so we reserve for another day the determination of
its facial soundness. We hold only that this statute may not be
read to require a "viewing" that would violate the Fourth
Amendment.
¶71 The parties have not identified any inherent
constitutional infirmity in Wis. Stat. § 74.37(4)(a). This
provision simply requires a property owner to comply with the
52
No. 2015AP1523
board of review procedures before filing a claim for excessive
assessment in circuit court: "No claim or action for an
excessive assessment may be brought under this section unless
the procedures for objecting to assessments under [Wis. Stat.
§] 70.47 . . . have been complied with." § 74.37(4)(a). In
this case, however, those procedures included the Board of
Review's determination that the Milewskis must submit to an
unconstitutional search of their home before presenting their
challenge. Because § 74.37(4)(a) incorporated the
unconstitutional application of § 70.47(7)(aa), it too was
unconstitutionally applied to the Milewskis.
IV. CONCLUSION
¶72 Applying Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) in
a manner that required submission to a tax assessor's search as
a precondition to challenging the revaluation of their property
violated the Milewskis' due process rights as guaranteed by the
Fourteenth Amendment to the United States Constitution, and
Article I section 1 of the Wisconsin Constitution.
Consequently, we reverse the court of appeals and remand to the
circuit court for further proceedings consistent with this
opinion.
By the Court.—The decision of the court of appeals is
reversed and the matter is remanded to the circuit court for
further proceedings consistent with this opinion.
53
No. 2015AP1523.pdr
¶73 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I
agree with the lead opinion that the Milewskis are entitled to a
hearing to contest their tax assessment, and therefore I concur
in the mandate. I write separately because I conclude that the
Milewskis are statutorily entitled to a hearing even though they
did not permit a tax assessor to enter the interior of their
home. Therefore, because I would not address the constitutional
issues discussed by the lead opinion, I do not join the lead
opinion, but respectfully concur.
I. BACKGROUND
¶74 The lead opinion ably sets forth relevant facts, and
therefore I relay only those facts that are helpful to
understanding my discussion that follows.
¶75 The Milewskis received a written notice that a tax
assessor, Gardiner, would visit their home to view their
property.1 When Gardiner arrived, Ms. MacDonald permitted
Gardiner to view the exterior of their home. She offered to let
Gardiner through a gate and into their yard so that he could
view the entire exterior of their home. Gardiner declined this
invitation and left the property.
¶76 Gardiner valued the Milewskis' property significantly
higher than it previously had been valued. Mr. Milewski
appeared at the Town of Dover Board of Review (board of review)
to object to the valuation of their property. The board of
1
The notice requested an interior view of their home.
1
No. 2015AP1523.pdr
review denied Mr. Milewski the opportunity to appear because he
had not permitted the assessor to view the interior of his home.
¶77 The Milewskis paid their taxes for 2013 and sought
review of their tax assessment in circuit court under Wis. Stat.
§ 74.37. The Town of Dover Board of Review and Gardiner moved
for summary judgment. They contended that the Milewskis lost
their right to contest the valuation of their property before
the board of review, and, as a corollary, the right to challenge
their tax assessment as excessive in circuit court.
¶78 The Milewskis moved for partial summary judgment and
argued, in part, that they were entitled to a hearing to object
to their tax assessment because Wis. Stat. § 70.47(7)(aa) is
satisfied by a taxpayer who permits an exterior view of his
property, and the Milewskis permitted such a view.
¶79 The circuit court granted summary judgment in favor of
the Town of Dover and Gardiner, and the court of appeals
affirmed. We granted the Milewskis' petition for review. I
would reverse the court of appeals and remand to the circuit
court for a hearing on the Milewskis' excessive tax assessment
claim.
II. DISCUSSION
A. Standard of Review
¶80 The present case requires the court to interpret and
apply the statutory provisions that govern the valuation of real
property and the ability of a taxpayer to contest a tax
assessment. "Interpretation and application of a statute
present questions of law that we review independently, while
2
No. 2015AP1523.pdr
benefitting from the analyses of the circuit court and court of
appeals." Sorenson v. Batchelder, 2016 WI 34, ¶10, 368 Wis. 2d
140, 885 N.W.2d 362 (citing Pool v. City of Sheboygan, 2007 WI
38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415).
B. Statutory Interpretation
¶81 "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (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., ¶45 (citing Bruno v.
Milwaukee Cty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660
N.W.2d 656).
¶82 These principles guide our interpretation of the three
pertinent statutes in this case: Wis. Stat. § 70.32(1); Wis.
Stat. § 70.47(7)(aa); and Wis. Stat. § 74.37. The circuit court
and the court of appeals concluded that these provisions prevent
the Milewskis from contesting the valuation of their home and
the validity of their tax assessment.
¶83 Wisconsin Stat. § 70.32(1) describes the way in which
an assessor is required to value real property. It provides,
"Real property shall be valued by the assessor in the manner
specified in the Wisconsin property assessment manual provided
under s. 73.03(2a) from actual view or from the best information
3
No. 2015AP1523.pdr
that the assessor can practicably obtain, at the full value
which could ordinarily be obtained therefor at private sale."
Wis. Stat. § 70.32(1). Therefore, there are two permissible
ways in which an assessor may value real property: (1) through
an actual view of the property; or (2) based on the best
information available to the assessor. Of course, an assessor
may rely on the best information available because an actual
view of a property is not always feasible. See generally
Boorman v. Juneau Cty., 76 Wis. 550, 45 N.W. 675, 676 (1890)
("We cannot hold that the mere failure of the assessor to value
the lands from actual view invalidated the assessment.").
¶84 A taxpayer who is dissatisfied with the value accorded
his real property is allowed to contest the valuation before a
board of review. Wis. Stat. § 70.47. Section 70.47(7) outlines
the process a taxpayer must follow to receive a hearing before a
board of review. § 70.47(a) ("Objections to the amount or
valuation of property shall first be made in writing and filed
with the clerk of the board of review within the first 2 hours
of the board's first scheduled meeting . . . .").
¶85 A hearing before a board of review allows a taxpayer
to object to the valuation of his property; however, a taxpayer
also has the option of claiming his tax assessment is excessive.
Specifically, a taxpayer may pay the taxes that were imposed and
sue for a refund in circuit court. Wis. Stat. § 74.37(1) ("In
this section, a 'claim for an excessive assessment' or an
'action for an excessive assessment' means a claim or action,
respectively, by an aggrieved person to recover that amount of
4
No. 2015AP1523.pdr
general property tax imposed because the assessment of property
was excessive.").
¶86 Under Wis. Stat. § 70.47, a taxpayer is required to
satisfy certain procedural requirements before he may obtain a
hearing to object to the valuation of his property. And, a
taxpayer who is procedurally barred from challenging the
valuation of his property before a board of review is also
precluded from seeking review of his tax assessment in circuit
court. Wis. Stat. § 74.37(4)(a) ("No claim or action for an
excessive assessment may be brought under this section unless
the procedures for objecting to assessments under s. 70.47,
except under s. 70.47(13), have been complied with.").
¶87 Wisconsin Stat. § 70.47(7) explains the ways in which
an individual can lose the right to object to a tax assessment.
For example, a taxpayer who refuses the request of an assessor
to view his property is prevented from contesting the valuation
of his property before a board of review and is likewise barred
from challenging his tax assessment as excessive in circuit
court. Wis. Stat. § 70.47(7)(aa). Therefore, if an assessor
requests to "view" the taxpayer's real property, and the owner
of the property refuses this request, the owner is prevented
from taking any measure to challenge his tax assessment.
Specifically, § 70.47(7)(aa) provides,
No person shall be allowed to appear before the board
of review, to testify to the board by telephone or to
contest the amount of any assessment of real or
personal property if the person has refused a
reasonable written request by certified mail of the
assessor to view such property.
5
No. 2015AP1523.pdr
Under this provision, an assessor may request the opportunity to
view a taxpayer's property, but the assessor is not obligated to
specify those parts of the property the assessor wishes to view.
Accordingly, a "view" may include only the exterior, only the
interior or both.
¶88 Although this provision requires an individual to
permit an assessor to "view" his property, nothing in Wis. Stat.
§ 70.47(7)(aa) requires that a taxpayer permit an assessor to
view the interior of his home. See State v. Pratt, 36
Wis. 2d 312, 317, 153 N.W.2d 18 (1967) ("In construing or
'interpreting' a statute the court is not at liberty to
disregard the plain, clear words of the statute."). Rather,
§ 70.47(7)(aa) provides that an assessor must be given the
opportunity to "view such property." And, the phrase "view such
property" is not defined so as to require an interior view of
the structures on the property in order for a view of the
property to have occurred.
¶89 "View" or "viewing" is defined as "[t]o look at,
examine, or inspect" or alternatively as "[a]n examination using
the eyes; a look." View, The American Heritage Dictionary, 1931
(5th ed. 2011). An assessor may examine a taxpayer's property
without entering the interior of his home. Therefore, an
examination of a property for purposes of valuing said property
does not necessarily require an assessor to view the interior of
any structures located on the parcel of real property.
¶90 The legislature could have used the word "enter"
instead of "view," which may have suggested that interior access
6
No. 2015AP1523.pdr
to any structures on the property is required. See Kalal, 271
Wis. 2d 633, ¶44 ("We assume that the legislature's intent is
expressed in the statutory language."). It did not. But the
legislature has used the word "enter" in other contexts
involving the assessment of property. Wis. Stat. § 70.05(4m).
"When the legislature chooses to use two different words, we
generally consider each separately and presume that different
words have different meanings." Augsburger v. Homestead Mut.
Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874(internal quotations omitted).
¶91 Importantly, nowhere else in the statutory scheme does
it mandate an interior view of a taxpayer's property. And, this
interpretation of Wis. Stat. § 70.47(7)(aa) does not prevent an
assessor from correctly assessing the value of the home under
Wis. Stat. § 70.32 or the Wisconsin Property Assessment Manual.
If a taxpayer allows for an exterior view of the home, then that
is "the best information that the assessor can practicably
obtain." § 70.32.
¶92 Moreover, interpreting "view such property" under Wis.
Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the
property avoids the possibility that the statutory scheme would
operate to infringe the due process rights of a taxpayer by
denying the taxpayer the opportunity to be heard.
¶93 The lead opinion's due process analysis is predicated
on the presumption that Wis. Stat. § 70.47(7)(aa) precludes the
right to be heard for a taxpayer who denies an assessor a view
of any part of his home. However, we generally avoid
7
No. 2015AP1523.pdr
interpreting a statute in a way that would cause constitutional
problems. See Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1,
884 N.W.2d 484 ("We presume that statutes are constitutional and
if any doubt exists about the statute's constitutionality, the
court must resolve that doubt in favor of upholding the
statute." (internal citations omitted)).
¶94 Even if the plain language of the statute could be
read to require interior access to a taxpayer's property,
interpreting the statute such that it is satisfied by an
exterior view preserves its constitutionality. See Milwaukee
Branch of NAACP v. Walker, 2014 WI 98, ¶63, 357 Wis. 2d 469, 851
N.W.2d 262. "If a saving construction . . . preserves the
constitutionality of the statute, we will employ it." Id. "We
do so in order to avoid a constitutional conflict." Id., ¶64.
"Stated otherwise, when we determine that there is a statutory
flaw that may have constitutional significance, we ascertain
whether the government rule or statute can be interpreted in a
manner that will avoid a constitutional conflict." Id. As
discussed above, it is possible to interpret the statute such
that an exterior view of a taxpayer's property is sufficient.
This interpretation allows a taxpayer a hearing to contest his
tax assessment if he permits an exterior view of his property,
thereby rendering the statutory scheme constitutional.
Accordingly, this court should interpret Wis. Stat.
§ 70.47(7)(aa) such that an exterior view of the property is
sufficient in order to "save" the constitutionality of the
statutory scheme.
8
No. 2015AP1523.pdr
¶95 Consequently, I would interpret Wis. Stat.
§ 70.47(7)(aa) consistent with a taxpayer's due process right to
be heard. The interpretation accords a taxpayer who permits an
exterior view of his property a hearing under § 70.47(7)(aa) and
also the right to maintain a refund action under Wis. Stat.
§ 74.37.
¶96 However, a taxpayer who provides only an external view
of his property is not entitled to produce evidence of the
interior condition of his home at a hearing before the board of
review or in a claim for excessive assessment before a circuit
court. During those proceedings, the taxpayer may cross-examine
the individual who valued his property to determine if the
assessor came to a reasonable conclusion as to its value.2
Through this process, a taxpayer will be able to determine if
the assessor relied on the best information available to assess
his property, as required under Wis. Stat. § 70.32(1).
Additionally, a taxpayer may introduce other evidence unrelated
to the interior condition of the property to show his tax
assessment was unjust or unreasonable.
2
Assessors, or an authorized representative of the
assessor, are required to attend such a hearing. See Wis. Stat.
§ 70.48 ("The assessor or the assessor's authorized
representative shall attend without order or subpoena all
hearings before the board of review and under oath submit to
examination and fully disclose to the board such information as
the assessor may have touching the assessment and any other
matters pertinent to the inquiry being made.").
9
No. 2015AP1523.pdr
C. Milewskis' Tax Assessment
¶97 In the present case, the Milewskis satisfied the
conditions of Wis. Stat. § 70.47(7)(aa), and therefore they are
entitled to challenge their tax assessment as excessive under
Wis. Stat. § 74.37. When the assessor, Gardiner, arrived at
their home, Ms. MacDonald offered to provide the inspector with
an exterior view of their home. She offered to open the gate to
their yard and let him view the entirety of the exterior. As a
result, she offered to let Gardiner "view" the property, which
is all that § 70.47(7)(aa) requires in order for a taxpayer to
obtain a hearing before a board of review. It is of no
consequence that Gardiner declined the Milewskis' invitation to
examine the exterior of their home.
¶98 Therefore, the Milewskis satisfied the conditions
necessary to be able to challenge their taxes as excessive in
circuit court under Wis. Stat. § 74.37. I would remand to the
circuit court for a hearing on this claim. However, during the
hearing, the Milewskis are not entitled to present evidence as
to the condition of the interior of their home. Instead, they
may examine Gardiner in order to determine the validity and
soundness of the methodology upon which he based the valuation
of their property. Additionally, they may introduce other
evidence of the value of their property as appropriate.
III. CONCLUSION
¶99 In light of the foregoing, I conclude that the
Milewskis are statutorily entitled to a hearing even though they
did not permit a tax assessor to enter the interior of their
10
No. 2015AP1523.pdr
home. Therefore, because I would not address the constitutional
issues discussed by the lead opinion, I do not join the lead
opinion, but respectfully concur.
11
No. 2015AP1523.akz
¶100 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I
respectfully concur in the mandate. I agree with the result
reached by the lead opinion in this case, as well as the lead
opinion's basic rationale and much of the lead opinion's
analysis. That is, I agree that the Town could not, consistent
with the United States Constitution and the Wisconsin
Constitution, compel the Milewskis to choose between exercising
their constitutional right to challenge a governmental
deprivation of their property and exercising their
constitutional right to refuse governmental entry into their
home. This Scylla and Charybdis, however, has seemingly been
analyzed under the rubric of the "unconstitutional conditions
doctrine" by the lead opinion. I am concerned with this
characterization.
¶101 I concur only in the mandate principally because of
the lead opinion's unprecedented decision to rely on the
"unconstitutional conditions doctrine," a term absent from the
briefing in this case. The perils of addressing unbriefed
issues are illustrated by the lead opinion's discussion. A
review of existing case law demonstrates that the
unconstitutional conditions doctrine is more complex than the
lead opinion's analysis suggests, and that it has most
typically, if not always, according to the Supreme Court, arisen
in cases which involve government benefits. See, e.g., Koontz
v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct.
2586, 2594 (2013) ("We have said in a variety of contexts that
'the government may not deny a benefit to a person because he
1
No. 2015AP1523.akz
exercises a constitutional right.' . . . Those cases reflect an
overarching principle, known as the unconstitutional conditions
doctrine, that vindicates the Constitution's enumerated rights
by preventing the government from coercing people into giving
them up." (emphasis added)); id. at 2596 ("Virtually all of our
unconstitutional conditions cases involve a gratuitous
governmental benefit of some kind."); Planned Parenthood of
Ind., Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962,
986 (7th Cir. 2012) ("The first step in any unconstitutional-
conditions claim is to identify the nature and scope of the
constitutional right arguably imperiled by the denial of a
public benefit." (emphasis added)); Madison Teachers, Inc. v.
Walker, 2014 WI 99, ¶¶29-35, 358 Wis. 2d 1, 851 N.W.2d 337(suggesting that the unconstitutional conditions doctrine
embodies the principle that "it is impermissible for the
government to condition the receipt of a tangible benefit on the
relinquishment of a constitutionally protected right" (emphasis
added)); Kathleen M. Sullivan, Unconstitutional Conditions, 102
Harv. L. Rev. 1413, 1415 (1989) ("The doctrine of
unconstitutional conditions holds that government may not grant
a benefit on the condition that the beneficiary surrender a
constitutional right, even if the government may withhold that
benefit altogether." (emphasis added)).1
1
For example, the lead opinion pulls language from Frost &
Frost Trucking Co. v. Railroad Commission of California, 271
U.S. 583, 592-93 (1926). That case was an unconstitutional
conditions case, but it involved a "gratuitous governmental
benefit." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
___, 133 S. Ct. 2586, 2596 (2013).
2
No. 2015AP1523.akz
¶102 Perhaps this doctrine should be applied in this case
(which does not involve a governmental benefit), but I would
prefer to see briefing and argument on that question before
establishing a rule in Wisconsin. Experience teaches that broad
legal statements untethered to the specific facts of the case,
like those present in the lead opinion's section on the
unconstitutional conditions doctrine, can easily metastasize in
our legal system and become "virtual engine[s] of destruction
for countless legislative judgments which have heretofore been
thought wholly consistent with . . . the Constitution."
Weinberger v. Salfi, 422 U.S. 749, 772 (1975) (discussing the
irrebuttable presumption doctrine). Judicial restraint dictates
that we decide this case narrowly, especially given the numerous
constitutional considerations involved.2
¶103 Aside from this deficiency, other aspects of the lead
opinion suffer from the same proclivity for overbroadness. For
instance, the lead opinion is not content to reject the argument
that home intrusions of the type involved under the specific
facts at issue are minor; it instead concludes that no
governmental entry into a home under any hypothetical set of
circumstances can ever be minor. See lead op., ¶57. The
statement sounds impressive, but I do not understand the need
for such sweeping remarks. While the lead opinion may be
2
I do not necessarily reject all of the principles provided
in the lead opinion's discussion. I simply disagree with the
lead opinion's use of the unconstitutional conditions doctrine
to resolve this case.
3
No. 2015AP1523.akz
entirely correct, I am not willing to decide an infinite number
of potential future cases without briefing and argument. To
take another example, while the lead opinion could easily quote
well-established Fourth Amendment maxims for some of the
principles it cites in its opinion, it instead chooses to reword
them in ways that could be easily misunderstood. See, e.g.,
lead op., ¶37 ("[C]onsent removes the search from Fourth
Amendment scrutiny.").
¶104 In sum, while I would like to join the lead opinion, I
cannot do so for fear of its potential effects on existing case
law and the ways in which it could be cited in the future.
¶105 For the foregoing reasons, I respectfully concur in
the mandate.
¶106 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
4
No. 2015AP1523.ssa
¶107 SHIRLEY S. ABRAHAMSON, J. (dissenting).1 I would
affirm the judgment of the circuit court and the decision of the
court of appeals in favor of the Town of Dover.2 The statutes
challenged are presumed constitutional. The challengers have
1
Five justices agree with the mandate set forth in Justice
Daniel Kelly's opinion (which appears as the first opinion in
the instant case). The mandate is that the decision of the
court of appeals is reversed and the cause is remanded. Only
Justice Rebecca G. Bradley joins Justice Kelly's opinion. Chief
Justice Patience D. Roggensack joins Justice Kelly's mandate,
writing separately in concurrence. Justice Annette K. Ziegler
(joined by Justice Michael J. Gableman) joins Justice Kelly's
mandate, writing separately in concurrence. Justice Ann Walsh
Bradley joins this dissent.
Justice Kelly's opinion is referred to as a lead opinion
because four justices do not agree with or join its reasoning.
As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We 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.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874
N.W.2d 533)).
2
The parties disagree whether the Milewskis made a facial
or an as-applied challenge to the constitutionality of the
statutes. The lead opinion agrees with the Milewskis that their
challenge is an as-applied challenge. Lead op., ¶¶69-71. I am
not persuaded. I caution, as the United States Supreme Court
has cautioned, that "the distinction between facial and as-
applied challenges is not so well defined that it has some
automatic effect or that it must always control the pleadings
and disposition in every case involving a constitutional
challenge." Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 331 (2010).
1
No. 2015AP1523.ssa
not carried their heavy burden to prove the statutes
unconstitutional beyond a reasonable doubt.3
¶108 The legislature has declared that if a real property
owner wishes to contest the amount of an assessment at the board
of review or circuit court, the property owner must, on the
reasonable written request of the assessor, allow the assessor
an "actual view" of the real property. See Wis. Stat.
§§ 70.47(7)(aa), 70.32(1).
¶109 The statutory words "actual view" have been
interpreted as including both an interior and exterior view of
the real property.4 The instant case involves the Milewskis'
3
The Milewskis bear a heavy burden. See Tammy W.-G. v.
Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 299, 797 N.W.2d 854("In a facial challenge, the challenger must persuade us that
the 'heavy burden' to overcome the presumption of
constitutionality has been met, and that there is proof beyond a
reasonable doubt that the statute is unconstitutional"); Clear
Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App 15, ¶33,
374 Wis. 2d 348, 893 N.W.2d 24 (noting "the heavy burden
challengers face on an as-applied equal protection claim and the
strong presumption in favor of a taxing decision of
government").
4
The Wisconsin Property Assessment Manual interprets
"actual view" of property to include an "interior view." See
Wisconsin Property Assessment Manual at 4-3, 10-55, 21-18 to 21-
20 (2017).
All subsequent references to the Manual are to the 2017
version. For a discussion of the Manual, see ¶¶143-145, infra.
At least as early as the 1860s the legislature has required
assessors to value real property upon actual view. Marsh v. Bd.
of Supervisors, 42 Wis. 502, 514 (1877). The Marsh court
concluded that the requirement of an actual view and the
statutory enumerated factors the assessor must consider help
ensure "an equal and faithful assessment of all property subject
to taxation."
2
No. 2015AP1523.ssa
refusing to allow the assessor to view the interior of their
real property, a home. I therefore focus on this issue, as does
the lead opinion. Other taxpayers may refuse to give an
assessor a view of the exterior of the real property or both the
exterior and interior. Substantially the same or similar issues
may arise in these instances.5
¶110 The lead opinion asserts that the legislature has
conferred on the Milewskis an unconstitutional choice of Option
A or Option B:
¶111 If the Milewskis choose Option A, they consent to an
assessor's viewing the interior of their home (thereby forgoing
their Fourth Amendment right to bar the government from their
home) and can contest the amount of the assessment in a hearing
before the Board of Review and a court (thereby exercising their
Fourteenth Amendment due process right to a hearing to contest
the amount of the assessment).
¶112 If the Milewskis choose Option B, they refuse to allow
an assessor to view the interior of their home (thereby
exercising their Fourth Amendment right to bar the government
5
Chief Justice Patience Roggensack's concurrence offers an
unexpected and surprising interpretation of the phrases "actual
view" and "view such property" in Wis. Stat. §§ 70.32(1) and
70.47(7)(aa), respectively. The concurrence contends that these
phrases do not refer to an interior view of the real property.
This interpretation (not proffered by the parties) does not
resolve the issue of the constitutionality of the statutes at
issue when the property owner does not allow an assessor a view
of the exterior of the real property, which is curtilage. See
Oliver v. United States, 466 U.S. 170 (1984); State v. Dumstrey,
2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502.
3
No. 2015AP1523.ssa
from their home) and cannot contest the amount of the assessment
in a hearing before the Board of Review and a court (thereby
forgoing their Fourteenth Amendment due process right to a
hearing to contest the amount of the assessment, according to
the lead opinion).
¶113 I conclude that an assessor's entry into the interior
of the home is a search under the Fourth Amendment. I further
conclude, as did the circuit court and court of appeals, that
Wis. Stat. § 70.47(7)(aa) and § 74.37(4)(a), the challenged
statutes, do not violate the Milewskis' Fourth Amendment or
Fourteenth Amendment rights (or analogous state constitutional
rights).
¶114 Section 70.47(7)(aa) governs proceedings before the
board of review and bars a person who refuses to allow an
assessor to view property from appearing or testifying before
the board or contesting the amount of the assessment:
(aa) No person shall be allowed to appear before the
board of review, to testify to the board by telephone
or to contest the amount of any assessment of real or
personal property if the person has refused a
reasonable written request by certified mail of the
assessor to view such property.
¶115 Section 74.37(4)(a) governs proceedings before the
circuit court and bars a claim or action for an excessive
assessment unless the property owner complied with the procedure
for objecting to assessments prescribed in § 70.47(7)(aa):
(a) No claim or action for an excessive
assessment may be brought under this section
unless the procedures for objecting to
assessments under s. 70.47, except under
70.47(13), have been complied with. . . .
4
No. 2015AP1523.ssa
¶116 Wisconsin is not alone in tying a challenge to the
amount of a property assessment to a property owner's permitting
a taxing authority to view the real property.6
¶117 Although the lead opinion describes its task as
"straightforward," it engages in a lengthy, overly complex
discussion. It focuses on numerous intricacies, including the
special needs exception to the Fourth Amendment and the messy,
ill-understood "unconstitutional conditions" doctrine.7 It
misses the big picture as well as the components of the tax
assessment statutes.8
¶118 My analysis of the issues proceeds as follows:
¶119 Part I sets forth two realities essential to
understanding the instant case: The Milewskis did not surrender
their Fourth Amendment rights; the assessor never entered the
home. The Milewskis retain rights under the statutes to a due
process hearing in which to contest their assessment; they
exercised these rights.
6
See, e.g., Minn. Stat. §§ 273.20, 274.01(b) (2016); Mass.
Gen. Laws, ch. 58A, § 8A (2016).
7
Justice Annette Ziegler's concurrence appropriately
outlines some difficulties with the "unconstitutional
conditions" doctrine, but much more can be said about the
unworkability of the doctrine and the flaws in the lead
opinion's discussion of this doctrine.
8
"[T]he tax appeal administrative procedures of chs. 70 and
74 of the Wisconsin statutes are a highly evolved and carefully
interwoven set of statutes providing a comprehensive remedy for
individuals seeking redress for excessive assessments." Hermann
v. Town of Delavan, 215 Wis. 2d 370, 394, 572 N.W.2d 855 (1998).
5
No. 2015AP1523.ssa
¶120 In Part II, I examine Wis. Stat. § 70.32(1) and
determine that the legislative directions to assessors regarding
the methods of valuation express a preference for an "actual
view" of the real property, meaning the view of the interior and
exterior. The lead opinion rests on a fundamental
misinterpretation of § 70.32(1).
¶121 Part III examines the legislature's reasonable,
constitutional inducement to property owners to consent to an
assessor's actual view of the real property by imposing a
reasonable, constitutional restraint on the property owner's
ability to contest the amount of an assessment. The legislative
provisions advance significant, legitimate governmental
objectives.
¶122 In Part IV, I analogize the challenged tax statutes to
Wisconsin's Implied Consent Law by which the State has imposed a
choice on drivers. The effect of this constitutional choice is
to discourage a driver's exercise of a Fourth Amendment right to
be free from intrusive government searches of the person by a
blood draw.
¶123 In Part V, I show that the challenged tax statutes are
but a specific application of the unremarkable principle that a
taxpayer must make full disclosure of material information to a
taxing authority or face civil tax consequences for failing to
divulge the information. This principle of "make a full
disclosure or lose a claim or defense" also exists in other
areas of the law.
6
No. 2015AP1523.ssa
¶124 Part VI concludes the analysis by probing the meaning
of the mandate of the lead opinion.
I
¶125 The reader should approach the instant case keeping
two realities firmly in mind:
¶126 One. the Town's assessor did not enter the interior of
the Milewskis' home. No search of the Milewskis' home occurred.9
And no search would have occurred without their express consent.
The Milewskis did not surrender any constitutional right to be
free from an unreasonable search.10 See lead op., ¶¶6-12.
9
The circuit court observed that no search occurred:
Circuit Court: [Milewski] here very nicely says: You
can come——you can come in the yard, you can look
around, but you can't go in. They don't go in, do
they?
Milewski's Attorney: No, they do not.
Circuit Court: So there's no Fourth Amendment
violation at all.
Milewski's Attorney: There's no search.
10
Wisconsin Stat. § 70.05(4m) limits the availability and
scope of an assessor's entry to view a property:
A taxation district assessor may not enter upon a
person's real property for purposes of conducting an
assessment under this chapter more than once in each
year, except that an assessor may enter upon a
person's real property for purposes of conducting an
assessment under this chapter more often if the
property owner consents. A property owner may deny
entry to an assessor if the owner has given prior
notice to the assessor that the assessor may not enter
the property without the property owner's permission.
(continued)
7
No. 2015AP1523.ssa
¶127 No assessor forced his or her way into the home,
enlisted the aid of law enforcement officers to enter the home,
or otherwise interfered with the Milewskis' exercise of their
right to deny an assessor entry into the home. No physical
occupation or entry without a warrant11 or without consent
occurred, was attempted, or was even contemplated.12
¶128 Two, the Milewskis have received full due process
hearings in three courts——in the circuit court, in the court of
appeals, and in this court. Furthermore, the Milewskis retained
and exercised rights under the statutes to a hearing in which
they challenged the assessment as excessive on specified
grounds.
¶129 The lead opinion misleadingly suggests that the
Milewskis have been subjected to a tax and "have been forbidden
any process by which to challenge it." Lead op., ¶24. Three
Any request to view the interior of the property must be
reasonable, made in writing, and delivered by certified mail.
Wis. Stat. § 70.47(7)(aa).
11
Wisconsin Stat. § 66.0119 provides for "special
inspection warrants" for many purposes, including "property
assessment."
In Camara v. Mun. Court, 387 U.S. 523 (1967), the Court
required a municipal health inspector to obtain a warrant to
conduct routine interior inspections for evidence of building
code violations.
12
Compare G.M. Leasing Corp. v. United States, 429 U.S.
338, 358 (1977) (concluding that the government's nonconsensual
search of a business office and seizure of furnishings, books,
and records contained therein was unreasonable and in violation
of the Fourth Amendment absent a warrant or exigent
circumstances).
8
No. 2015AP1523.ssa
courts have addressed the Milewskis' objections to the
assessment of their home and their challenge to the statutes at
issue. The Milewskis went the "whole nine yards" and lost on
the merits in two courts.
¶130 Moreover, the lead opinion misleadingly suggests that
as a result of the challenged statutes, the Milewskis lose "the
ability to contest their increased tax burden." Lead op., ¶¶24
n.9, 68. But property owners who refuse to allow an assessor an
actual view of the real property may nevertheless avail
themselves of procedures to challenge the legitimacy, nature,
and scope of the assessment.
¶131 Indeed, the Milewskis availed themselves of their
statutory right to a hearing challenging the assessment as
excessive. The Milewskis brought claims against Gardiner
Appraisal Service, LLC, the Town's assessor. They had a due
process hearing in circuit court in which they sought damages
from the Town's assessor on a claim of excessive assessment and
retaliation or coercion.13 See Wis. Stat. § 70.503.1413
The Wisconsin statutes include protection against
intentional (retaliatory) assessments. Should an assessor
attempt to punish a property owner by imposing a punitive
assessment, the assessor risks not only a fine but liability for
the amount of the excess tax imposed on the property owner.
14
Wisconsin Stat. § 70.503 provides for civil liability of
an assessor as follows:
Civil liability of assessor or member of board of
review. If any assessor, or person appointed or
designated under s. 70.055 or 70.75, or any member of
the board of review of any assessment district is
guilty of any violation or omission of duty as
specified in ss. 70.501 and 70.502, such persons shall
(continued)
9
No. 2015AP1523.ssa
¶132 The court of appeals affirmed the circuit court's
dismissal of these retaliatory assessment claims against
Gardiner Appraisal Service, holding that there was no evidence
that Gardiner Appraisal Service intentionally violated the law
by performing the assessment in a retaliatory manner.15 The
Milewskis did not seek review of this dismissal in this court.
¶133 Property owners also have the right to a due process
hearing if they claim that the request to view the interior of
the real property was unreasonable. See Wis. Stat.
§§ 70.05(4m), 70.47(7)(aa). The Milewskis do not assert that
be liable in damages to any person who may sustain
loss or injury thereby, to the amount of such loss or
injury; and any person sustaining such loss or injury
shall be entitled to all the remedies given by law in
actions for damages for tortious or wrongful
acts. . . .
Wisconsin Stat. § 70.501 provides for an assessor's
forfeiture to the state:
Fraudulent valuations by assessor. Any assessor, or
person appointed or designated under s. 70.055 or
70.75, who intentionally fixes the value of any
property assessed by that person at less or more than
the true value thereof prescribed by law for the
valuation of the same, or intentionally omits from
assessment any property liable to taxation in the
assessment district, or otherwise intentionally
violates or fails to perform any duty imposed upon
that person by law relating to the assessment of
property for taxation, shall forfeit to the state not
less than $50 nor more than $250.
15
See Milewski v. Town of Dover, No. 2015AP1523,
unpublished slip op., ¶¶22-25 (Wis. Ct. App. May 4, 2016).
10
No. 2015AP1523.ssa
the assessor's written request to view their real property
violated the statutory requirements.16
¶134 To be clear, the Milewskis were afforded due process
of law. The Milewskis challenged in the courts the tax
assessment system that led to the assessment of their real
property. The Milewskis also had statutory rights to the Board
of Review's determination of whether the assessment of their
property was excessive and retaliatory and whether the request
for an actual view of their property violated statutory
requirements.
¶135 Two realities: No search of the Milewskis' home
occurred. The Milewskis had a hearing under the statutes, and
they challenged the assessment as excessive in court
proceedings.
II
¶136 The task of prescribing a uniform method for valuing
property for taxation purposes lies with the legislature. Since
the 19th century, the legislature has directed assessors how to
value real property. The present statute is Wis. Stat.
§ 70.32(1).
16
Any request to view the property must be reasonable, made
in writing, and delivered by certified mail. Wis. Stat.
§ 70.47(7)(aa). The Milewskis do not assert that they were
unable to permit a view at the suggested time. Indeed, had this
been their reason for refusing the assessor a view of the
interior of the home, the Milewskis would have been given a
chance to reconsider their refusal, even after seeing the
proposed assessment. See Wisconsin Property Assessment Manual
at 21-16.
11
No. 2015AP1523.ssa
¶137 The lead opinion rests on a fundamental
misinterpretation of Wis. Stat. § 70.32(1).
¶138 The lead opinion concludes that an assessment can be
based either on an actual view or on the best information that
the assessor can practicably obtain, and that the legislature
has not expressed a preference for one method over the other.
The inevitable result of this reading is that the property owner
can dictate the valuation methodology by refusing to allow an
assessor an actual view of the real property.
¶139 The lead opinion at ¶51 reaches this interpretation by
relying solely on the text of the phrase "from actual view or
from the best information that the assessor can practicably
obtain" in the first sentence of Wis. Stat. § 70.32(1):
70.32 Real Estate, How Valued (1) Real property shall
be valued by the assessor in the manner specified in
the Wisconsin property assessment manual provided
under [Wis. Stat. §] 73.03(2a) from actual view or
from the best information that the assessor can
practicably obtain . . . . (Emphasis added.)
¶140 This narrow, either/or reading of the statute based on
the text of only one phrase in a lengthy statutory provision
contravenes the basic rule of statutory interpretation that a
statute be interpreted in context.17 Rather than reading this
phrase in isolation, it should be read in the context of the
entire section, in the context of the tax assessment statutes,
17
See Wis. Carry v. City of Madison, 2017 WI 19, ¶20, 373
Wis. 2d 543, 892 N.W.2d 233 ("We examine the statute's
contextualized words, put them into operation, and observe the
results to ensure we do not arrive at an unreasonable or absurd
conclusion.").
12
No. 2015AP1523.ssa
in the context of prior judicial interpretation of the statute,
and to avoid unreasonable or absurd consequences.18 This court
has instructed that the appropriate valuation methodology is
determined by looking "at the governing statutes, reviewed in
conjunction with basic principles of real property assessment as
described by case law, treatises, and the [Wisconsin] Property
Assessment Manual."19
¶141 Section 70.32(1) of the Wisconsin Statutes provides in
full as follows:
Wis. Stat. § 70.32 (1) Real property shall be valued
by the assessor in the manner specified in the
Wisconsin property assessment manual provided under s.
73.03(2a) from actual view or from the best
information that the assessor can practicably obtain,
at the full value which could ordinarily be obtained
therefor at private sale. In determining the value,
the assessor shall consider recent arm's-length sales
of the property to be assessed if according to
professionally acceptable appraisal practices those
sales conform to recent arm's-length sales of
reasonably comparable property; recent arm's-length
sales of reasonably comparable property; and all
factors that, according to professionally acceptable
appraisal practices, affect the value of the property
to be assessed. (Emphasis added.)
¶142 A reading of the full text of Wis. Stat. § 70.32(1)
demonstrates that the legislature has given assessors several
instructions about valuation of real property that inform the
18
See, e.g., Berkos v. Shipwreck Bay Condo. Ass'n, 2008 WI
App 122, ¶8, 313 Wis. 2d 609, 758 N.W.2d 215 ("Also relevant to
a statute's plain meaning is prior case law interpreting the
statute.")
19
Walgreen Co. v. City of Madison, 2008 WI 80, ¶19, 311
Wis. 2d 158, 752 N.W.2d 687.
13
No. 2015AP1523.ssa
interpretation of the statute's phrase "actual view or from the
best information that the assessor can practicably obtain":
• The legislature has instructed assessors to value real
property according to the Wisconsin Property
Assessment Manual.
• The legislature has instructed assessors to value real
property according to "professionally acceptable
appraisal practices."
• The legislature has instructed assessors to use a
hierarchy of valuations to value real property.
• As judicially interpreted, the legislature has
expressed a preference for valuation on the basis of
an actual view of the real property, although the
legislature has recognized that valuation requires
attention to other enumerated statutory factors and
the judgment and expertise of the assessor.
¶143 The first statutory direction to assessors in Wis.
Stat. § 70.32(1) is that real property be valued in the manner
specified in the Wisconsin Property Assessment Manual. The
Manual is published annually by the Department of Revenue. The
legislature envisions the Manual as setting forth accepted
assessment methods and reflecting advances in the science of
assessment, court decisions, and other information considered
valuable to local assessors. Wisconsin Stat. § 73.03(2a)
provides in relevant part as follows:
The manual shall discuss and illustrate accepted
assessment methods, techniques and practices with a
view to more nearly uniform and more consistent
assessments of property at the local level. The
14
No. 2015AP1523.ssa
manual shall be amended by the department from time to
time to reflect advances in the science of assessment,
court decisions concerning assessment practices,
costs, and statistical and other information
considered valuable to local assessors by the
department.
¶144 Assessors must adhere to the Manual, but when an
assessment is based on a directive in the Manual that does not
properly interpret Wisconsin law, the assessment may be
erroneous as a matter of law.20
¶145 The Wisconsin Property Assessment Manual mandates that
"actual view requires a detailed viewing of the interior and
exterior of all buildings and improvements and the recording of
complete cost, age, use, and accounting treatments." See
Wisconsin Property Assessment Manual at 10-55.21 This interior
view requirement makes sense. The assessor hired by the Town of
Dover in the instant case asserts that the interior of a home
constitutes about 70% of its value.22
20
Metro. Holding Co. v. Bd. of Review, 173 Wis. 2d 626,
632, 495 N.W.2d 314 (1993).
21
That an actual view requires an assessor to view the
interior of real property is an observation echoed throughout
the Wisconsin Property Assessment Manual. For example, at 6-12,
the Manual explains that "data collected on each property should
be complete, accurate, and consistent," requiring, inter alia,
that the assessor "[v]iew the interior of the building,
recording physical data." The Manual explains further that
"[p]hysical characteristics such as age, condition, design,
layout, quality of construction materials, and workmanship all
have an effect on the value of improvements." Wisconsin
Property Assessment Manual at 9-20. These characteristics
necessarily depend on an interior view.
22
Gardiner Appraisal Service is a party in the instant case
and filed a brief.
15
No. 2015AP1523.ssa
¶146 The lead opinion maintains that there is no need for
an interior inspection of the Milewski home. Lead op. ¶¶51-52.
Wrong! There is!
¶147 An assessor for the Town of Dover was last in the
interior of the Milewskis' residence in 2004. According to its
affidavit, Gardiner Appraisal Services could not verify whether
any remodeling had been performed since then. Thus, when the
assessor attempted to set a valuation for the Milewskis' house
without an interior inspection, he "could not accurately
determine the effective physical, functional and economic
obsolescence of the structure, curable or non-curable. . . . A
single remodel project, like a kitchen or bath, could have
significantly increased the value of the home."23
¶148 A second reason a view of the interior of the
Milewskis' home was especially crucial is that the Town was
conducting a full revaluation of all real property in the Town's
jurisdiction. A full revaluation refers to an assessment of all
the real property in the Town. See Wis. Stat. §§ 70.045,
70.05(5). A full revaluation is required periodically "to meet
the requirements of fair and uniform assessment." Wisconsin
Property Assessment Manual at 4-1.
¶149 Accordingly, the assessor in the instant case,
Gardiner Appraisal Services, performed the appraisal of the
Milewskis' house while doing a full revaluation of all the real
property in the Town of Dover to establish new, equitable
23
Defendant-Respondent, Gardiner Appraisal Service, LLC's,
Response Br. at 8.
16
No. 2015AP1523.ssa
assessments for all real properties. The written contract
between the Town of Dover and Gardiner Appraisal Services
required, inter alia, that "[the] assessor[] will view the
exterior and interior of all structures unless denied access
after mailing a request to owner by certified mail."
¶150 Requiring assessors to undertake an actual view of the
real property in a revaluation is a valid and reasonable
application of Wis. Stat. § 70.32(1), the Manual, and
professional appraisal practices.
¶151 The second direction in Wis. Stat. § 70.32(1) to
assessors regarding valuation is that the assessors comply with
"professionally acceptable appraisal practices." Emphasizing
the importance of the phrase, the statute references
"professionally acceptable appraisal practices" three times. In
its last use of the phrase, Wis. Stat. § 70.32(1) explicitly
states that "[i]n determining the value . . . the assessor shall
consider . . . all factors that, according to professionally
acceptable appraisal practices, affect the value of the property
to be assessed."
¶152 The Department of Revenue is directed to illustrate
accepted assessment methods in the Manual. Wis. Stat.
§ 70.03(2a).
¶153 Viewing the interior of a building is surely a
"professionally acceptable appraisal practice." Gardiner
Appraisal Service's brief and affidavit cite (and include
17
No. 2015AP1523.ssa
excerpts from) the Appraisal Institute's24 text Appraisal of Real
Estate at 219-20 (14th ed. 2013), which Gardiner Appraisal
Services describes as "a widely accepted treatise on assessment
methods."25
¶154 The text states that "the importance of a site visit
should not be underestimated." An appraiser's primary task
during a site visit is to write a "thorough building
description" that "helps the appraiser identify the extent and
24
The Appraisal Institute describes itself as "the world's
leading organization of professional real estate appraisers,"
and "has led the way in fostering and promoting the highest
standards of [appraisal] practice through its designation
programs, peer review process, education, research and
publishing endeavors." See
http://www.appraisalinstitute.org/about/.
25
This text has been cited in numerous Wisconsin cases in
which an appraisal or appraisal technique has been at issue.
See, e.g., Walgreen Co. v. City of Madison, 2008 WI 80, ¶3, 311
Wis. 2d 158, 164–65, 752 N.W.2d 687, 690 ("This holding is
consistent with the nationally recognized principle that '[a]
lease never increases the market value of real property rights
to the fee simple estate.' Appraisal Institute, The Appraisal
of Real Estate 473 (12th ed. 2001)."); ABKA Ltd. P'ship v. Bd.
of Rev. of Vill. of Fontana-on-Geneva Lake, 231 Wis. 2d 328,
354, 603 N.W.2d 217 (1999) (Wilcox, J., dissenting) (citing The
Appraisal Institute, The Appraisal of Real Estate 478 (11th ed.
1996)); Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 781, 580 N.W.2d
644 (1998) (citing The Appraisal Institute, The Appraisal of
Outdoor Advertising Signs (1994)). See also Adams Outdoor
Advert., Ltd. v. City of Madison, 2006 WI 104, ¶114 n.29, 294
Wis. 2d 441, 717 N.W.2d 803 (Abrahamson, C.J., dissenting)
(citing Ron L. Nation & Donald P. Oehlrich, The Valuation of
Billboard Structures, The Appraisal Journal, Oct. 1999, at 242
(publication of the Appraisal Institute).
Reference was also made to another Appraisal Institute
publication titled Summary Appraisal Report: Residential (2013)
for similar statements.
18
No. 2015AP1523.ssa
quality of building improvements, calculate their cost, and
identify physical deterioration and functional obsolescence."
The Appraisal of Real Estate at 220-21.
¶155 Further emphasizing the importance of an exterior and
interior view of real property as a professionally acceptable
appraisal practice, the text goes on to explain that if a site
visit was not made, the appraisal report must clearly and
conspicuously describe the "extraordinary assumption that the
site and building characteristics are as described even though
the appraiser has not confirmed that information through a site
visit." The Appraisal of Real Estate at 220.
¶156 This expressed, explicit distrust of an appraisal
conducted without an exterior and interior view strongly
supports the proposition that an on-site inspection is a
professionally accepted appraisal practice; valuations made
without on-site inspections should be the exception and not the
rule for professional appraisers.26
¶157 An actual view of the interior and exterior of a
building is, without question, a professionally acceptable
appraisal technique.
¶158 The third legislative direction in Wis. Stat.
§ 70.31(1) to assessors regarding valuation of real property is
that they comply with the hierarchy of valuation methodologies.
26
Fannie Mae, to which the Gardiner Appraisal Services
affidavit refers, also requires the inspection of the interior
and exterior of a building for an appraisal. See Fannie Mae,
"Appraisal and Property Report Policies and Forms Frequently
Asked Questions (FAQs)" at 4.
19
No. 2015AP1523.ssa
Assessors are obligated to follow what is known as the Markarian
three-tier hierarchy to value real property.27 See State ex rel.
Markarian v. City of Cudahy, 45 Wis. 2d 683, 173 N.W.2d 627(1970). The hierarchy set forth in § 70.32(1) and case law is
as follows.
¶159 First tier: An assessor must base the assessment of
the subject property on a recent arm's-length sale of the
property, if available.28 This is perhaps the only assessment
methodology that does not rely on data gleaned from an actual
view of the real property.
¶160 Of course, a recent arm's-length sale ordinarily
represents a consideration by the buyer of the interior and
exterior of the real property. Rational prospective homebuyers
would inspect the real property and not simply rely on a
seller's representations of the home, the record of permits
pulled for the home, or the assessed value of similar
properties.
27
"'An assessor has an obligation to follow the three tier
assessment analysis.'" Regency West Apartments LLC v. City of
Racine, 2016 WI 99, ¶26, 372 Wis. 2d 282, 888 N.W.2d 611(quoting Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI
104, ¶47, 294 Wis. 2d 441, 717 N.W.2d 803). See also Wisconsin
Property Assessment Manual at ch. 9.
28
See Adams Outdoor Advert., Ltd. v. City of Madison, 2006
WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Evidence of an
arms-length sale of the subject property is the best evidence of
true cash value.") (citing State ex rel. Keane v. Bd. of Review,
99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)).
20
No. 2015AP1523.ssa
¶161 Second Tier: If the subject property was not recently
sold, an assessor must base the assessment of the subject
property on sales of reasonably comparable property.
¶162 The sales comparison approach is "based on the premise
that similar properties will sell for similar prices on the open
market." Wisconsin Property Assessment Manual at 9-24. The
Manual requires using the sale price of properties that are
"similar to the subject property in age, condition, use, type of
construction, location, design, physical features and economic
characteristics." Wisconsin Property Assessment Manual at 9-24.
An important consideration in determining whether properties are
comparable is the improvements.29
¶163 Third Tier: If no sales of reasonably comparable
properties are available, an assessor may assess the subject
property using other assessment methodologies, such as cost and
income.30 In assessing under this tier, an assessor may consider
29
Rosen v. City of Milwaukee, 72 Wis. 2d 653, 686, 242
N.W.2d 681 (1976) ("Important considerations in determining
whether particular property is sufficiently similar to the
property being assessed to warrant reliance on its sale price as
evidence of market value include its location, including the
distance from the assessed property, its business or residential
advantages or disadvantages, its improvements, size and use.").
30
See, e.g., Adams Outdoor Advert., Ltd. v. City of
Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803("Only if there has been no arms-length sale and there are no
reasonably comparable sales may an assessor use any of the
third-tier assessment methodologies.") (citing State ex rel.
Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct.
App. 1980)); Great Lakes Quick Lube, LP v. City of Milwaukee,
2011 WI App 7, ¶¶17-18, 331 Wis. 2d 137, 794 N.W.2d 510 (citing
Allright Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶11,
317 Wis. 2d 228, 767 N.W.2d 567).
21
No. 2015AP1523.ssa
"all the factors collectively which have a bearing on value of
the property in order to determine its fair-market value."
Markarian, 45 Wis. 2d at 686. Gardiner Appraisal Services
asserts that without accurate information from an interior view
of the real property, it "is not possible to do an accurate
cost, market, or income approach to valuation."
¶164 A final direction to assessors comes from case law
interpreting Wis. Stat. § 70.32(1) and its precursors. The
court has recognized that the legislature has expressed a
preference for assessments based on an actual view of the real
property and that the legislature has also concluded that
valuation requires attention to other enumerated statutory
factors and requires the judgment and expertise of the assessor.
¶165 In the 1860s, the precursor to Wis. Stat. § 70.32(1)
referred to an "actual view" and enumerated various factors to
be considered in valuation, including "all buildings" and
"improvements of every description thereon."31 The disjunctive
31
See Wis. Stat. ch. 18, § 31 (1871) (cited in March v.
Board of Supervisors, 42 Wis. 502 (1877)). This statute states
that real property shall be valued by the assessor from actual
view and does not mention an alternative "best information" but
enumerates factors to be considered. It provides as follows:
§ 31. Real property shall be valued by the assessor
from actual view at the full value which could
ordinarily be obtained therefor at private sale, and
which the assessor shall believe the owner, if he
desires to sell, would accept in full payment. In
determining the value the assessors shall consider as
to each piece, its advantage or disadvantage of
location, quality of soil, quantity and quality of
standing timber, water privileges, mines, minerals,
quarries, or other valuable deposits known to be
available therein, and all buildings, fixed machinery
(continued)
22
No. 2015AP1523.ssa
phrase "or from the best information that the assessor can
practicably obtain" was later added to the statute.32
¶166 In considering the statute that included the
disjunctive phrase, the court accepted the idea that the
legislature expressed a preference for an actual view. The
court did not, however, invalidate the assessment when the
assessor failed to undertake an actual view. The court
acknowledged that "[i]t may be that a valuation from actual view
is always possible, but it is not always practicable." Boorman
and improvements of every description thereon, and
their value. Real property held under lease from any
religious, scientific, literary or benevolent
association, but otherwise exempt, shall be assessed
to the lessee. The assessor having fixed the value
shall enter the same opposite the proper tract in the
assessment roll. Property omitted from assessment the
previous year by mistake, shall be entered twice,
designating one entry as omitted for the year 18——.
(Emphasis added.)
32
See Wis. Stat. ch. 48, § 1052 (1889), which provides as
follows:
Real property shall be valued by the assessor either
from actual view or from the best information that the
assessor can practicably obtain, at the full value
which could ordinarily be obtained therefor at private
sale. In determining the value the assessor shall
consider, as to each piece, its advantage or
disadvantage of location, quality of soil, quantity of
standing timber, water privileges, mines, minerals,
quarries, or other valuable deposits known to be
available therein, and their value. Real property
held under lease from any religious, scientific,
literary or benevolent association, but otherwise
exempt, shall be assessed to the lessee. The
assessor, having fixed the value, shall enter the same
opposite the proper tract or lot in the assessment
roll. (Emphasis added.)
23
No. 2015AP1523.ssa
v. Juneau County, 76 Wis. 550, 553, 45 N.W. 675 (1890). The
Boorman court surmised that the assessor was acquainted with the
property from prior years.33
¶167 In sum, Wis. Stat. § 70.32(1) addresses and provides
direction to assessors regarding the methodology of valuation.
With its explicit reference to "actual view"; its references to
the Wisconsin Property Assessment Manual, "professionally
acceptable appraisal practices," and the hierarchy of assessment
methodologies; and its longstanding judicial interpretation,
Wis. Stat. § 70.32(1) suggests a preference for actual view in
an assessment——meaning interior and exterior view——and at the
same time empowers assessors to use their judgment and expertise
within the parameters set forth in the statute.
¶168 The lead opinion's narrow, either/or reading of Wis.
Stat. § 70.32(1) breaches a contextual reading and breaks with
precedent. The lead opinion's allowing the property owner in
effect to dictate the valuation methodology impairs the
functioning of the tax assessment system.
¶169 Because the legislature has established a preference
for an actual view in valuation of real property, the
legislature has also attempted to influence a property owner to
33
More recently, the court of appeals concluded that an
actual view was not required to conduct a comparable sales
analysis because the village assessor had been familiar with the
subject properties for 14 years. State ex rel. Kesselman v. Bd.
of Review, 133 Wis. 2d 122, 133, 394 N.W.2d 745 (Ct. App. 1986).
In Kesselman, "[t]he circuit court found that the assessor
failed to use the 'best information' available . . . because he
used only a drive-by inspection . . . ." Kesselman, 133 Wis. 2d
at 126-27.
24
No. 2015AP1523.ssa
permit an assessor an actual view of the real property. Indeed,
the legislature's decision to induce real property owners to
permit an assessor's actual view supports the proposition that
the legislature prefers that assessors have an actual view of
the real property.
III
¶170 To advance the significant, legitimate governmental
objective of uniformity and equity, the legislature has provided
a reasonable, constitutional inducement to property owners to
consent to an assessor's actual view of the real property: The
legislature imposes a reasonable, constitutional limit on the
ability of a property owner to contest the amount of an
assessment if the property owner prevents the assessor from
having an actual view of the real property.
¶171 I turn to the state constitutional requirement of
uniformity. The Uniformity Clause of the Wisconsin Constitution
dates back to the 1848 Constitution. It provides in relevant
part that "[t]he rule of taxation shall be uniform but the
legislature may empower cities, villages or towns to collect and
return taxes on real estate located therein by optional
methods. . . . " Wis. Const. art. VIII, § 1. See lead op., ¶3.
¶172 The Uniformity Clause requires that taxes be fairly
allocated among taxpayers. Comparable properties in the
district are to be assessed uniformly.34 "The purpose of the
34
Clear Channel Outdoor, Inc. v. City of Milwaukee, 374
Wis. 2d 348, ¶37, 374 Wis. 2d 348, 893 N.W.2d 24 (quoting U.S.
Oil Co., Inc. v. City of Milwaukee, 2011 WI App 4, ¶25, 331
Wis. 2d 407, 794 N.W.2d 904 (2010)).
25
No. 2015AP1523.ssa
Uniformity Clause is to ensure the tax burden is allocated
proportionally to the value of each person's property." Lead
op., ¶47.
¶173 The Uniformity Clause requires the same measuring
stick to be applied to comparable properties. "Satisfying the
Uniformity Clause requires . . . a uniform method of determining
the value of [] property . . . . " Lead op., ¶48.
¶174 The valuation of real property depends to a large
extent on the condition and quality of both the exterior and
interior of the real property. Thus, the requirement of an
actual view strongly relates to the state constitutional
requirement of uniformity.
¶175 Inaccuracy in the assessment of a parcel of real
property may result in inaccurate, and potentially unjust, tax
assessments of other real properties in that taxing
jurisdiction. See lead op., ¶¶47-48; Noah's Ark Family Park v.
Bd. of Review, 210 Wis. 2d 301, 310-12, 565 N.W.2d 230 (Ct. App.
1997) (Ct. App. op. adopted as op. of the Wisconsin Supreme
Court, 216 Wis. 2d 387, 390, 394, 573 N.W.2d 852 (1998)).
¶176 The lead opinion asserts that the Town "contradict[s]
itself" by arguing that the Uniformity Clause requires an
"actual view" and then nevertheless proceeds to assess the
Milewski real property using other assessment methodologies.
Lead op., ¶51. The lead opinion concludes that "[i]f proceeding
under this alternative was not consistent with the Uniformity
Clause, then the Town indicts itself for violating the
constitution . . . ." Lead op., ¶51.
26
No. 2015AP1523.ssa
¶177 The lead opinion stumbles. The Town's argument is not
contradictory: Once the Town proceeded to assess real property
using an "actual view," it applied the same methodology
throughout the Town complying with the Uniformity Clause and the
revaluation process. The Milewskis prevented the use of the
same methodology for their property. When the Milewskis refused
to allow the assessor an actual view of the real property, they
prevented the Town from complying with the mandate under the
Uniformity Clause to apply a uniform method of valuation. They
prevented the Town from treating similarly situated property
owners similarly. The Town had no choice but to use a different
method for valuing the Milewskis' real property.
¶178 The Town must nevertheless assess the Milewskis'
property. The Milewskis cannot escape assessment and taxation
by refusing to allow the assessor to view the interior of the
real property. To assess the Milewskis' real property, the Town
was forced to use the "best information that the assessor
[could] practicably obtain" in accordance with Wis. Stat.
§ 70.32(1).
¶179 To achieve even-handedness among real property owners
when a property owner refuses to allow an assessor an actual
view of the real property, the legislature imposes reasonable,
constitutional restrictions on the ability of property owners to
contest the amount of an assessment. The Town of Dover
describes achieving this goal of even-handedness among real
property owners in terms of avoiding the "free-rider" as
follows:
27
No. 2015AP1523.ssa
If most homeowners allow the assessor into their homes
to get an accurate assessment, but some homeowners are
allowed to force the assessor to make his or her
assessment without that crucial information and are
still allowed to try to decrease their assessment by
challenging it in other respects, the probable
consequence is that wealthy homeowners will be able to
avoid paying their fair share of taxes by hiding their
interior improvements.35
¶180 Unless the assessor has access to the interior of the
real property, the taxing entity is at a significant
disadvantage in justifying its assessment when challenged by the
property owner.
¶181 When a property owner challenges an assessment, there
is a rebuttable presumption that the assessment is correct.36 If
the property owner shows that the assessor has not adhered to
the statutes or the property owner presents significant contrary
evidence that establishes it is more probable than not that the
assessed value is not correct, the presumption ceases to apply.37
¶182 In the instant situation, the property owners (and
their expert) know the interior of the real property but the
Town (and its expert) do not. If the Town does not have
evidence regarding the interior of the real property, the Town
35
Brief of Defendant-Respondent Town of Dover and Board of
Review for the Town of Dover at 17.
36
Walgreen Co. v. City of Madison, 2008 WI 80, ¶17, 311
Wis. 2d 158, 752 N.W.2d 687; Adams Outdoor Advertising, Ltd. v.
City of Madison, 2006 WI 104, ¶26, 294 Wis. 2d 441, 717
N.W.2d 803.
37
Wis. Stat. § 70.47(13); Bonstores Realty One, LLC v. City
of Wauwatosa, 2013 WI App 131, ¶9, 351 Wis. 2d 439, 839
N.W.2d 893 (citing Wis. Stat. § 903.01 for the proposition that
an evidentiary presumption shifts the burden to the challenger).
28
No. 2015AP1523.ssa
cannot rebut the property owners' evidence. To avoid this
situation, the legislature has restricted the property owner's
ability to contest the amount of the assessment if the property
owner refuses the assessor an actual view.
¶183 According to the lead opinion, a property owner can,
without any adverse consequences, refuse an assessor an actual
view of the real property and apparently can still contest the
amount of the assessment. The result is two-fold: (1) The
property owner and the Town (which represents all property
owners) are not on an equal, fair, level "playing field" in
debating the amount of the assessment; and (2) the decision
maker will not have the full information that the assessor could
provide (if he or she had an actual view) upon which to
determine the amount of the assessment. As the court of appeals
concluded, "[t]he interior view of the home is one of the most
important pieces of evidence that the tax assessor must consider
when making an assessment. No other means are as effective to
provide an accurate valuation." Milewski v. Town of Dover, No.
2015AP1523, unpublished slip op., ¶19 (Wis. Ct. App. May 4,
2016).
¶184 An assessment decision resting on only one side's (the
property owner's) presentation of evidence relating to the
interior of the property is very apt to be erroneous. The law
recognizes the importance of a decision's being based on full
29
No. 2015AP1523.ssa
and complete information.38 Restricting the ability of a
property owner who refuses the assessor an actual view to
contest the amount of the assessment is thus necessary to assure
that both the property owner and the taxing entity have equal
access to material information and that the decision maker has
this information to enable it to establish a just and equitable
assessment.
¶185 The lead opinion asserts that the Milewskis may suffer
adverse consequences, "substantial impediments," and
"evidentiary consequences" as a result of refusing the assessor
an actual view, but the lead opinion does not reveal them; they
are kept a secret, not to be divulged by the lead opinion. See
lead op., ¶26 n.11. See also my discussion in Part VI of this
dissent, asserting that the meaning of the mandate is
clandestine.
¶186 Of course, the legislature could have chosen a
different path to restrict the non-consenting property owner's
rights to contest the amount of an assessment. For example, the
legislature could have permitted the non-consenting property
owner to appear before the board to contest the amount of the
assessment but could have barred him or her from submitting any
evidence relating to the interior of the real property.
38
See, e.g., Elias v. State, 93 Wis. 2d 278, 285, 286
N.W.2d 559 (1980) ("The responsibility of the sentencing court
is to acquire full knowledge of the character and behavior
pattern of the convicted defendant before imposing [the]
sentence.").
30
No. 2015AP1523.ssa
¶187 Without such evidence, in all likelihood, the non-
consenting property owner's challenge to the amount of the
assessment would be dismissed. The result would be the same as
the legislature's simply barring from the outset the non-
consenting property owner from contesting the amount of the
assessment. The legislature's decision to bar a non-consenting
property owner from contesting the amount of the assessment is
different in form, but not in substance, from barring a non-
consenting property owner from introducing evidence. The
legislature has made a sound, constitutional policy choice that
this court should not overturn.
¶188 In sum, an interior (and exterior) view of real
property (an actual view) is germane to, and has an extremely
powerful nexus with, valuation and assessment. The legislature
has a strong interest in inducing real property owners to
consent to an assessor's actual view of the real property and to
treat property owners who do consent differently in contesting
the amount of an assessment from property owners who do not
consent. The challenged statutes compellingly relate to the
governmental interest of uniform taxation and fairness to all
property owners.
¶189 With the robust government interest in uniformity and
fairness in mind, I examine the Fourth and Fourteenth
Amendments.
¶190 To recap, according to the lead opinion, the statutes
force an unconstitutional choice on property owners: On the one
hand, consent to an assessor's viewing the interior of a home
31
No. 2015AP1523.ssa
(relinquishing a protected Fourth Amendment right) and retain
the right to a hearing in which to contest the amount of the
assessment (a procedural due process right), and on the other
hand, refuse to consent to an assessor's viewing the interior of
a home (maintaining a protected Fourth Amendment right) and
relinquish the right to a hearing in which to contest the amount
of the assessment (relinquishing a procedural due process
right). I disagree with this portrayal of a constitutional
dilemma.
¶191 As noted above, there was no search, and the Milewskis
have had due process hearings in which they have asserted their
challenge to the assessment and the statutes.
¶192 Moreover, the touchstone of the Fourth Amendment is
reasonableness. Brigham City v. Stuart, 547 U.S. 398, 403
(2006). Not all searches violate the Fourth Amendment, only
unreasonable ones. The determination of whether a particular
search is reasonable must be made by "balancing its intrusion on
the individual's Fourth Amendment interests against its
promotion of legitimate governmental interests." Delaware v.
Prouse, 440 U.S. 648, 654 (1979).39
¶193 Recently, the United States Supreme Court explained
the reasonableness standard in Fourth Amendment jurisprudence
39
Ohio v. Robinette, 519 U.S. 33, 39 (1996)
("Reasonableness, in turn, is measured in objective terms by
examining the totality of the circumstances."); State v.
Gaulrapp, 207 Wis. 2d 600, 607, 558 N.W.2d 696 (Ct. App. 1996)
("[T]he Fourth Amendment's touchstone is reasonableness, which
is measured in objective terms by examining the totality of the
circumstances.").
32
No. 2015AP1523.ssa
and the balancing of the intrusion and the governmental
interests as follows:
Borrowing from our Fifth Amendment jurisprudence, the
United States suggests that motorists could be deemed
to have consented to only those conditions [a blood
draw] that are "reasonable" in that they have a
"nexus" to the privilege of driving and entail
penalties that are proportional to severity of the
violation. Brief for United States as Amicus Curiae
21–27. But in the Fourth Amendment setting, this
standard does not differ in substance from the one
that we apply, since reasonableness is always the
touchstone of Fourth Amendment analysis, see Brigham
City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943,
164 L. Ed. 2d 650 (2006). And applying this standard,
we conclude that motorists cannot be deemed to have
consented to submit to a blood test on pain of
committing a criminal offense.
Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016).
¶194 The challenged statutes do not require a property
owner to relinquish a Fourth Amendment right by permitting an
assessor's entry into the home.
¶195 Rather, the statutes offer the property owner an
incentive, an inducement, to consent to an assessor's entry into
the home. An entry in the home is an intrusion. But the level
of intrusion for tax assessment purposes is less of an intrusion
on personal privacy and dignity than other searches.
¶196 A tax assessor would not be rummaging through a real
property owner's personal effects, file cabinets, computers,
closets, medical cabinets, drawers, locked cabinets or other
private materials not germane to valuing the physical attributes
of the real property. Moreover, the amount of time taken by an
assessor to view the home is ordinarily much shorter than the
time taken in a search conducted in the course of a criminal
33
No. 2015AP1523.ssa
investigation.40 In an assessment search, the property owner is
not singled out as the object of official suspicion. Nothing is
seized. The property owner is given advance notice and the
entry is at a convenient time for the property owner. The
property owner may remove or conceal any personal effects before
the assessor arrives.
¶197 The legislature's inducement to obtain the property
owner's consent to the assessor's entry is to require the non-
consenting property owner to forgo a hearing at which the owner
may contest the amount of the assessment. The inducement is
more than reasonable in light of the governmental interests
involved.
¶198 In examining the procedural due process issue the lead
opinion raises, I note that the touchstone of procedural due
process is that due process is "flexible and requires only such
procedural protections as the particular situation demands."41
"Since the time of [its] early explanations of due process," the
40
"[T]he purpose for the [governmental] interference bears
upon the intrusiveness of government action. A criminal
investigation is generally more intrusive than an administrative
or regulatory investigation . . . ." Widgren v. Maple Grove
Twp., 429 F.3d 575, 584 (6th Cir. 2005) (citing 5 Wayne R.
LaFave et al., Search and Seizure: A Treatise on the Fourth
Amendment § 10.1(b) (4th ed. 2004)).
41
State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 512,
261 N.W.2d 434, 444 (1978) ("[D]ue process is satisfied if the
statutory procedures provide an opportunity to be heard in court
at a meaningful time and in a meaningful manner. . . . Due
process is flexible and requires only such procedural
protections as the particular situation demands.") (citing
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
34
No. 2015AP1523.ssa
United States Supreme Court has "understood the core of the
concept to be protection against arbitrary action."42 The
challenged statutes are not arbitrary; they are reasonable and
germane to significant governmental interests.
¶199 As discussed above, the parties will not be on an
equal footing at a hearing to determine the assessment if the
Town will not have information about the interior of the real
property to defend its assessment. The decision maker will not
have the benefit of full information upon which to establish an
assessment. The non-consenting property owner may thus be able
to distort its assessment to the detriment of the other property
owners and to impinge on the Town's ability to comply with the
Uniformity Clause.
¶200 The legislative restriction upon the Milewskis' right
to contest the amount of the assessment is more than reasonable
under the circumstances. The statutes do not impose an
arbitrary restriction on the property owner and do not violate
due process. Considering the countervailing governmental
interest in uniform taxation, the challenged statutes do not
constitute government action arbitrarily limiting the Milewskis'
due process rights.
¶201 In sum, bearing in mind the interests of the real
property owner and the public, I conclude that the options the
42
Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998);
accord Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The
touchstone of due process is protection of the individual
against arbitrary action of government.").
35
No. 2015AP1523.ssa
legislature offered to the Milewskis do not impair, to an
appreciable extent, the rights involved and do promote, to an
appreciable extent, weighty governmental interests.
IV
¶202 I conclude that the options the legislature offers the
property owner are constitutionally sound government-imposed
"tough" choices. I analogize the challenged statutes to
Wisconsin's Implied Consent Law, Wis. Stat. § 343.305.
¶203 Tough choices, even choices that discourage the
exercise of a Fourth Amendment right, are common in the law and
are viewed as voluntary and constitutionally valid:
The criminal process, like the rest of the legal
system, is replete with situations requiring the
making of difficult judgments as to which course to
follow. Although a defendant may have a right, even
of constitutional dimensions, to follow whichever
course he chooses, the Constitution does not by that
token always forbid requiring him to choose.43
The lead opinion apparently refuses to accept that such a choice
is valid. See, e.g., lead op., ¶68 n.29.
¶204 In Wisconsin's Implied Consent Law, the State imposes
a choice on drivers. The choice has the effect of discouraging
43
McGautha v. California, 402 U.S. 183, 213 (1971), reh'g
granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S.
941 (1972) (internal quotation marks and citations omitted)
("The contention is that where guilt and punishment are to be
determined by a jury at a single trial the desire to address the
jury on punishment unduly encourages waiver of the defendant's
privilege to remain silent on the issue of guilt, or, to put the
matter another way, that the single-verdict procedure unlawfully
compels the defendant to become a witness against himself on the
issue of guilt by the threat of sentencing him to death without
having heard from him.").
36
No. 2015AP1523.ssa
the exercise of a Fourth Amendment right to be free from a
government search of a person's body. The Wisconsin Implied
Consent Law is constitutional.44
¶205 Under the Wisconsin Implied Consent Law, a driver
faces the "difficult choice" between consenting to a blood draw
or refusing to consent to a blood draw and facing revocation of
the driver's license and the prosecution's use of "refusal
evidence" at trial.45 See State v. Padley, 2014 WI App 65, ¶27,
354 Wis. 2d 545, 849 N.W.2d 867.46 A blood draw is a search
44
See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)
("States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.");
Birchfield, 136 S. Ct. at 2185 ("Our prior opinions have
referred approvingly to the general concept of implied-consent
laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply . . . and nothing we say here
should be read to cast doubt on them.").
45
The use of refusal evidence at trial has been held not to
violate due process. North Dakota v. Neville, 459 U.S. 553(1983); State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct.
App. 1980); State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905(1986).
46
Although the Implied Consent Law seeks waiver of a Fourth
Amendment right in exchange for retaining the "privilege of an
operator's license," and, according to the lead opinion, the tax
assessment system seeks waiver of a Fourth Amendment right in
exchange for retaining a due process right to challenge the
assessment, the analogy is apt.
(continued)
37
No. 2015AP1523.ssa
under the Fourth Amendment. It is "an invasion of bodily
integrity" and "implicates an individual's most personal and
deep-rooted expectations of privacy." Missouri v. McNeely, 133
S. Ct. 1552, 1558 (2013) (internal quotation marks and quoted
source omitted).
¶206 The Wisconsin property tax assessment system is, in
many ways, strikingly similar to Wisconsin's Implied Consent
Law. An entry into a home, like a blood draw, implicates
significant privacy concerns; both are intrusions restricted by
the Fourth Amendment. Both the tax assessment system and the
Implied Consent Law impose civil consequences, not criminal
consequences, if the individual exercises his or her Fourth
The United States Supreme Court has not distinguished
between a privilege and a right for these purposes. See, e.g.,
Sherbert v. Verner, 374 U.S. 398, 404 (1963) ("Nor may the South
Carolina court's construction of the statute be saved from
constitutional infirmity on the ground that unemployment
compensation benefits are not appellant's 'right' but merely a
'privilege.' It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or
privilege."); Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 571 (1972) ("[T]he Court has fully and finally rejected the
wooden distinction between 'rights' and 'privileges' that once
seemed to govern the applicability of procedural due process
rights."); Graham v. Richardson, 403 U.S. 365, 374 (1971) ("But
this Court now has rejected the concept that constitutional
rights turn upon whether a governmental benefit is characterized
as a 'right' or as a 'privilege.'"); Kerry v. Din, 135 S. Ct.
2128, 2143 (2015) (Breyer, J., dissenting) ("Justice SCALIA's
response——that nonconstitutional law creates an 'expectation'
that merits procedural protection under the Due Process Clause
only if there is an unequivocal statutory right,——is sorely
mistaken. His argument rests on the rights/privilege distinction
that this Court rejected almost five decades ago, in the seminal
case of Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011,
25 L. Ed. 2d 287 (1970).").
38
No. 2015AP1523.ssa
Amendment constitutional right to refuse to consent to the
search.47
¶207 And although the Fourth Amendment right to refuse a
blood draw or a home entry can be exercised, the exercise comes
with civil statutory consequences. The civil consequences are
supported by strong governmental interests. Implied consent
laws serve the paramount governmental interest of enforcing
drunk-driving laws and, thus, protecting public safety.48 The
tax assessment system serves the paramount government interest
of raising funds and ensuring uniform and fair taxation.
¶208 Considering the apt analogy between Wisconsin's
Implied Consent Law and the Wisconsin tax assessment system, I
agree with the court of appeals' reasoning in the instant case
upholding the constitutionality of the statutory choice imposed
on the Milewskis:
Here, Plaintiffs have the "right" to refuse to allow
Gardiner access to their home, but the consequence
47
See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185
(2016) ("It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to impose criminal
penalties on the refusal to submit to such a test. There must
be a limit to the consequences to which motorists may be deemed
to have consented by virtue of a decision to drive on public
roads."); Camara v. Mun. Ct., 387 U.S. 523, 540 (1967) ("We
therefore conclude that appellant has a constitutional right to
insist that the inspectors obtain a warrant to search and that
appellant may not constitutionally be convicted [of a crime] for
refusing to consent to the inspection.") (emphasis added).
48
See Birchfield, 136 S. Ct. at 2173 ("The States and the
Federal Government have a paramount interest . . . in preserving
[public highway] safety . . . .") (internal quotation marks and
quoted source omitted).
39
No. 2015AP1523.ssa
that flows from the refusal is cessation of the right
to challenge the tax assessment and pay without
recourse. There is no due process violation; the
choice belongs entirely to Plaintiffs.49
V
¶209 Another way of depicting the unexceptional aspects of
the challenged tax assessment statutes is to analogize them to
the unremarkable principle of tax law that a taxpayer must make
full disclosure to a taxing authority or face civil tax
consequences for failing to divulge information to the taxing
authority. The consequence for refusing an assessor's
reasonable request for an interior view is not retaliatory or
punitive. Rather it is a legal, logical extension of the usual
rule that a taxpayer who has material information about his or
her tax matters must divulge it to the taxing authority.
¶210 The United States Supreme Court explained this
principle in Wyman v. James, 400 U.S. 309, 404 (1971). In
Wyman, the Court explained that disallowing a deduction (which
increased the tax, a taking of property according to the lead
opinion) was a valid consequence for the taxpayer's refusal to
submit proof substantiating the claimed deduction:
[In a federal income tax dispute between a taxpayer
and an IRS agent] an Internal Revenue Service agent,
in making a routine civil audit of a taxpayer's income
tax return, asks that the taxpayer produce for the
agent's review some proof of a deduction the taxpayer
has asserted to his benefit in the computation of his
tax. If the taxpayer refuses, there is, absent fraud,
only a disallowance of the claimed deduction and a
consequent additional tax. The taxpayer is fully
49
Milewski v. Town of Dover, No.2015AP1523, unpublished
slip op., ¶21 (Wis. Ct. App. May 4, 2016).
40
No. 2015AP1523.ssa
within his "rights" in refusing to produce the proof,
but in maintaining and asserting those rights a tax
detriment results and it is a detriment of the
taxpayer's own making. . . . [N]othing of
constitutional magnitude is involved.
Wyman, 400 U.S. at 389.
¶211 Similarly, this court has confirmed that "the
privilege of appearing before the board of review and having
assessment errors corrected is coupled with a duty of the
taxpayer to make full disclosure of information." Hermann v.
Town of Delavan, 215 Wis. 2d 370, 393, 572 N.W.2d 855 (1998)
(citing Wis. Stat. § 70.47(7)(a)).50
¶212 Wisconsin Stat. § 70.47(7)(a) explicitly disallows a
person "to question [in any action or proceeding] the amount or
valuation of property unless . . . [the person] made full
disclosure before said board, under oath of all that person's
property liable to assessment . . . and the value thereof."
Similarly, Wis. Stat. § 70.47(7)(af) states that no person may
object to a valuation if that valuation was made by the assessor
using the income method unless the person supplies to the
50
In Hermann v. Town of Delavan, 215 Wis. 2d 370, 376, 572
N.W.2d 855, a group of taxpayers brought a claim under Wis.
Stat. § 893.80 alleging that the Town's method of assessment was
unfair and non-uniform. Because the taxpayers' complaint did
not allege their prior compliance with the property tax appeal
procedures set forth in Wis. Stat. § 70.47, this court affirmed
the circuit court's dismissal of the taxpayers' complaint for
failing to state a claim for upon which relief could be granted;
the taxpayers had failed to exhaust the exclusive statutory
remedies addressing their overassessment claims, so their claims
were dismissed. Hermann, 215 Wis. 2d at 377.
41
No. 2015AP1523.ssa
assessor all of the information about income and expenses that
the assessor requests.51
¶213 At the turn of the last century, Wisconsin Supreme
Court Justice Joshua Eric Dodge eloquently explained the
rationale behind the principle that the taxpayer who has
information must disgorge the information (to which the taxing
authority does not have access) in order to challenge the
assessment, to ensure that the property owner and the taxing
entity have a "level playing field" before the decision maker so
that the decision maker can allocate the burden of taxation
fairly:
[The taxing authority] and the public are entitled
that [the taxing authority] shall not be successfully
attacked in court without full and frank disclosure
from the taxpayer of the superior knowledge which he
necessarily has upon the subject. It is perhaps
utopian to expect of human selfishness voluntary
original information . . . , but when one presents
himself to give evidence against the amount which the
assessor has fixed in the light, or obscurity, which
necessarily surrounds him, it is but right that the
taxpayer furnish all the enlightenment in his power
without evasion or concealment. . . .
51
The legislature has barred taxpayers from challenging tax
assessments for personal property if the taxpayer failed to make
full disclosure. See, e.g., Vill. of Westby v. Bekkedal, 172
Wis. 114, 121-22, 178 N.W. 451, 454 (1920) (taxpayer who did not
comply with statutory requirement to attend hearing and disclose
all income subject to assessment was estopped from challenging
the assessment); State ex rel. Foster v. Williams, 123 Wis. 73,
75, 100 N.W. 1052, 1052 (1904) (1903 Wis. Laws ch. 284, § 2,
barred the taxpayer from questioning the board's valuation
unless the taxpayer made full disclosure before the board, under
oath, of all his or her personal property liable to assessment
in the district and the value thereof; holding that evasive
answers do not constitute a full disclosure).
42
No. 2015AP1523.ssa
State ex rel. Foster v. Williams, 123 Wis. 73, 76-77, 100
N.W. 1052, 1053 (1904).
¶214 By refusing to permit the assessor an interior view of
the real property, the property owner fails to make a full
disclosure to the taxing entity. Because the property owner
fails to make full disclosure, the owner is restricted from
contesting the amount of the assessment. By holding the
challenged statutes unconstitutional as applied, the lead
opinion essentially eviscerates the longstanding full disclosure
rule, to the detriment of uniformity and fairness.52
52
Less persuasive, but worth mentioning as some support for
the constitutionality of the challenged statutes, is that the
challenged statutes may be considered analogous to several
prerequisites a property owner must meet to contest the
assessment:
• Wis. Stat. § 70.47(7)(a): A person who owns land
and improvements to that land may not object only to
the valuation of that land or only to the valuation
of improvements to that land.
• Wis. Stat. § 74.37(4)(b): No claim or action for an
excessive assessment may be brought or maintained
unless the tax for which the claim is filed is
timely paid.
• Wis. Stat. § 74.3(4)(c): No claim or action for an
excessive assessment may be brought or maintained if
the assessment of the property for the same year is
contested under enumerated sections of chapter 70.
• The real property owner must exhaust administrative
remedies. See Northbrook Wis., LLC v. City of
Niagara, 2014 WI App 22, ¶25, 352 Wis. 2d 657, 843
N.W.2d 851 ("That Northbrook failed to avail itself
of the opportunity to object before the Board of
Review does not mean its right to due process was
violated.").
43
No. 2015AP1523.ssa
¶215 In the instant case, the legislature has given notice
to property owners that it deems an assessor's actual view of
real property material evidence and that the property owners'
failure to produce this material evidence will result in
restricting the property owners' right to contest the amount of
the assessment. By failing to permit an interior view of the
real property, property owners cannot at the same time take
advantage of the law's protection of the information and use the
information to seek an advantage against an opposing person
(including a government entity) that does not otherwise have
access to the information.
¶216 The full disclosure rule exists outside of tax law.
For example, if a plaintiff claiming damages for personal injury
refuses to disclose his or her otherwise confidential medical
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records, the plaintiff's claim will be dismissed.53 See Wis.
Stat. § 804.10, 905.04(4)(c).54
¶217 The challenged statutes are, in a sense, a corollary
of the well-accepted legal principle that persons who fail to
disclose material evidence that is in their possession and that
is not readily available to an opposing party may not avail
themselves of a judicial forum.
VI
¶218 I conclude by probing the meaning of the mandate of
the lead opinion.
¶219 The lead opinion remands the matter to the circuit
court "for further proceedings consistent with this opinion."
Nowhere does the lead opinion discuss the further proceedings;
53
Lister v. Sure-Dry Basement Sys., 2008 WI App 124, 313
Wis. 2d 151, 758 N.W.2d 126 (dismissal of homeowner's action
against contractor was warranted for homeowner's failure to
supply physician's report); Steinberg v. Jensen, 194
Wis. 2d 439, 480, 534 N.W.2d 361 (1995) (Geske, J. concurring)
("Clearly, once a patient-litigant puts his or her physical,
mental, or emotional condition into issue in a lawsuit, any
confidential physician-patient communications relating to that
issue, including those relevant to discovery under ch. 804,
Stats., are not privileged."); Khalsa v. Chose, 261 P.3d 367(Alaska 2011) (affirming dismissal of personal injury claim for
plaintiff's failure to turn over medical records despite prior
warning and court order).
54
Wisconsin Stat. § 905.04(4)(c) provides: "There is no
privilege under this section as to communications relevant to or
within the scope of discovery examination of an issue of the
physical, mental or emotional condition of a patient in any
proceedings in which the patient relies upon the condition as an
element of the patient's claim or defense, or . . . in any
proceeding in which any party relies upon the condition as an
element of the party's claim or defense."
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it is not clear what the lead opinion has in mind. See lead
op., ¶26 ("We express no opinion on whether the Milewskis will
be able to carry their burden of proof upon the contest of the
Property's value, but that has nothing to do with whether they
have the right to hazard the attempt.").
¶220 Does the circuit court determine the assessment? Does
the circuit court remand the matter to the Town Board of Review
to determine the assessment? May the Milewskis hire an
appraiser at their own expense to view the interior of their
home and submit that appraiser's opinion to the board of review
or circuit court?
¶221 The Milewskis' brief provides no help in advising what
happens should they prevail in this court. The brief seeks
merely a declaration that Wis. Stat. §§ 70.47(7)(aa) and
74.37(4)(a) together violate their constitutional rights and
this court's reversal of the decision of the court of appeals.
¶222 The assessor's brief concludes that, should the
Milewskis prevail in this court, their remedy should be a remand
of the matter to the Town Board of Review to determine the
assessment. The assessor proposes this remedy because the
Milewskis' challenge to the amount of the assessment was not
heard by the Board and the statutory procedures require the
matter be heard first by the Board. Citing Hermann v. Town of
Delavan, 215 Wis. 2d 370, 381-83, 572 N.W.2d 855 (1998), the
assessor argues that Chapters 70 and 74 are intended to be the
exclusive means by which the property owner may contest the
amount of the assessment.
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¶223 Along the same lines, the Town urges that, should it
lose, "the remedy should be an opportunity to challenge the
assessment before the" board of review. But the Town adds that
the Milewskis should not have the opportunity to "use any
information that they have withheld, i.e., regarding the
interior of the home."
¶224 Whether the circuit court or the Board of Review
determines the assessment, I agree with the Town and the
assessors that neither the Milewskis nor any of their witnesses
should be able to use any information that they have regarding
the interior of the real property. Their challenge to the
assessment should be limited to the assessor's calculation of
the value of the real property. Without this limit on the
Milewskis' challenge to the assessment of their property, the
Town's duty to assess real property uniformly and fairly may
become a nullity.
¶225 For the reasons set forth, I write separately in
dissent.
¶226 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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