Armin Nankin v. Village of Shorewood
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2001 WI 92 SUPREME COURT OF WISCONSIN Case No.: 99-1058 Complete Title of Case: Armin Nankin, Trustee of the Gertrude H. Weiss Revocable Trust, Plaintiff-Appellant-Petitioner, v. Village of Shorewood, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 238 Wis.2d 841, 618 N.W.2d 273 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: July 6, 2001 March 6, 2001 Circuit Milwaukee Diane S. Sykes JUSTICES: Concurred: Dissented: CROOKS, J., dissents (opinion filed). WILCOX, J., joins dissent. Not Participating: SYKES, J., did not participate. ATTORNEYS: For the plaintiff-appellant-petitioner there were briefs by Alan Marcuvitz, Robert L. Gordon and Weiss, Berzowski, Brady & Donahue, LLP, Milwaukee, and oral argument by Robert Gordon and Alan Marcuvitz. For the defendant-respondent there was a brief by Raymond J. Pollen, Deborah S.R. Hoffmann and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, and oral argument by Raymond Pollen. An amicus curiae brief was filed by Gregg C. Hagopian, assistant city attorney, on behalf of the City Attorney for the City of Milwaukee, the Wisconsin Association of Assessing Officers, the South Eastern Wisconsin Association of Assessing Officers, and the Intergovernmental Cooperation Council of Milwaukee County, and oral argument by Gregg Hagopian. 2 2001 WI 92 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-1058 STATE OF WISCONSIN : IN SUPREME COURT Armin Nankin, Trustee of the Gertrude H. Weiss Revocable Trust, FILED Plaintiff-Appellant-Petitioner, JUL 6, 2001 Cornelia G. Clark Clerk of Supreme Court Madison, WI v. Village of Shorewood, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 review WILLIAM A. BABLITCH, J. of a court constitutionality of of Armin Nankin (Nankin) seeks appeals' Wis. Stat. Reversed. decision § 74.37(6) that upheld (1997-98).1 the This section operates to allow owners of property located in counties with a population of less than 500,000 to challenge a property assessment with a full trial in the circuit court; those with a population of 500,000 or more (populous counties) allowed a full trial "de novo" in the circuit court. contends 1 that the statute is unconstitutional are not Nankin because it All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. No. 99-1058 violates the constitutional guarantee of equal protection of the law, that is, it treats owners of property located in populous counties differently than owners of property located in other counties without a rational basis. We agree. We also conclude that § 74.37(6) is severable from the remainder of the statute. Accordingly, we reverse the determination made by the court of appeals and grant Nankin's motion for summary judgment. FACTS AND PROCEDURAL HISTORY ¶2 The facts are undisputed. Nankin is trustee of a trust that owns a parcel of real property in the Village of Shorewood (Village) in Milwaukee County. filed a written objection assessment of the property. to the On May 9, 1998, Nankin village assessor's 1998 On May 11, 1998, the Village of Shorewood Board of Review (Board) conducted a hearing on this objection. At the conclusion of the hearing, the Board voted to sustain the assessment of the village assessor. ¶3 Pursuant to statute, once a board of review renders its decision, appeal from the decision may be accomplished in one of three ways.2 First, an owner can appeal from the board's determination by an action for certiorari to the circuit court under Wis. Stat. § 70.47(13). Second, pursuant to Wis. Stat. § 70.85, a property owner may submit a written complaint with the department of revenue requesting that the department revalue the property. § 70.85(1), (4)(b). 2 The department's decision See Hermann v. Town of Delavan, 215 Wis. 2d 370, 379-80, 572 N.W.2d 855 (1998). 2 No. 99-1058 may then be appealed through an action for certiorari in the county in which the property is located. § 70.85(4)(c). Third and finally, after paying the tax on the assessment, a property owner may proceed under Wis. Stat. § 74.37 with a claim for an excessive county, assessment depending against on the which § 74.37(1), (2)(a), (4)(b). district3 taxation entity collected or the the tax. Such claims seek "to recover that amount of general property tax imposed because the assessment of property was excessive." § 74.37(1). If this claim is denied, the aggrieved property owner may then commence an action in the circuit court to recover the amount of the claim not allowed. § 74.37(3)(d). ¶4 Because of Wis. Stat. § 74.37(6), however, Nankin was prohibited from pursuing this final option. provides that § 74.37 "does not population of 500,000 or more." apply This subsection in counties with a In this case, because the trust property was located in the Village of Shorewood in Milwaukee County, a county that had a population of 500,000 or more, Nankin could not file a claim under § 74.37. ¶5 On June 15, 1998, Nankin filed a declaratory judgment action in the circuit court, seeking a declaration that Wis. Stat. § 74.37(6) was unconstitutional. In particular, he alleged that this statute violated (1) Article I, Section 1 of the Wisconsin Constitution and the Fourteenth Amendment of the 3 A "taxation district" is defined as "a town, village or city in which general property taxes are levied and collected." Wis. Stat. § 70.045. 3 No. United States Constitution, both of which 99-1058 guarantee equal protection under the law; (2) Article IV, Section 31(6) of the Wisconsin Constitution, which prohibits the enactment of special or private laws regarding the assessment or collection of taxes; and (3) Article VIII, Section 1 of the Wisconsin Constitution, which mandates that the rule of taxation shall be uniform. Nankin also sought a declaration from the court that § 74.37(6) was severable from the remainder of the statute; a permanent injunction prohibiting the defendant from asserting § 74.37(6) as a defense to any claim filed by Nankin regarding the 1998 assessment of property; and costs incurred, including reasonable attorney fees. ¶6 argued With that respect the to statute his equal was protection claim, unconstitutional Nankin because it legislated disparate treatment for persons who own property in municipalities in counties with a population of 500,000 or more and persons counties. who own property in municipalities in other Persons owning property in populous counties, Nankin argued, could ultimately only receive certiorari review of their property assessments in the circuit court, either under Wis. Stat. § 70.47(13) or Wis. Stat. § 70.85(4)(c). In contrast, persons owning property in other counties could receive de novo review in the circuit court by pursuing an action under Wis. Stat. § 74.37(3)(d). Nankin contended that there was no rational basis for this disparate treatment of property owners in assessment appeal options based solely on the population of the county in which the property is situated. 4 No. ¶7 Nankin filed a motion for summary 99-1058 judgment. This motion included a claim that Wis. Stat. § 74.37(6) also violated Article IV, Section 18 constitutional of provision the Wisconsin limits the Constitution. legislature from This passing laws that have only limited application. ¶8 Diane The S. Milwaukee Sykes, denied County Circuit Nankin's declaratory relief, concluding burden proving the of reasonable doubt. motion that statute Court, he and the his failed Honorable request to for carry unconstitutional his beyond a With respect to Nankin's equal protection claim, the court determined that this question had been resolved in S.C. Johnson & Son, Inc. v. Town of Caledonia, 206 Wis. 2d 292, 557 N.W.2d 412 (Ct. App. 1996). The court followed this precedent and opined that it was reasonable for the legislature to exempt populous counties from this type of review based on the conclusion that de novo review of municipal board of review decisions counties. in the circuit court would be unworkable in such Certiorari review, the court noted, still provided a meaningful opportunity for judicial correction of municipal tax assessment errors, even though this review was far narrower than de novo review. The court also rejected Nankin's other constitutional claims and denied costs to Nankin. ¶9 The court of appeals, in affirmed the circuit court's decision. a per curiam decision, We accepted review to determine whether Wis. Stat. § 74.37(6) violated one or more of the following state constitutional provisions: (1) Article I, Section 1; (2) Article IV, Section 31(6); or (3) Article IV, 5 No. Section 18.4 99-1058 Because we conclude that this statutory section violates Article I, Section 1, we will not review Nankin's other arguments. Our analysis also reveals that § 74.37(6) may be severed from the remainder of the statute. STANDARD OF REVIEW ¶10 A challenge presents a question standard of review. to of the law constitutionality that we review is under a a statute de novo Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849. statute of constitutional and indulge We presume that the "every sustain the law if at all possible . . . ." presumption Id. to The burden is on the party challenging the statute to prove that the statute is unconstitutional beyond a reasonable doubt. Id. at ¶19. Any doubt must be resolved in favor of the constitutionality of the statute. Id. at ¶18. EQUAL PROTECTION ¶11 Nankin challenges the constitutionality of Wis. Stat. § 74.37(6) on equal protection grounds.5 To prevail, he must 4 Nankin did not pursue his Article VIII, Section 1 claim on appeal. 5 Equal protection is guaranteed under Article I, Section 1 of the Wisconsin Constitution, which states: "All 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." "This court applies the same interpretation to the state Equal Protection Clause as that given to the equivalent federal provision." Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998). 6 No. show that the statute unconstitutionally similarly situated classes differently. ¶56. treats 99-1058 members of Aicher, 2000 WI 98 at In cases, like here, where the statutory classification does not involve a suspect class or a fundamental interest, we will sustain the classification if there exists any rational basis to support it. Milwaukee Brewers v. DHSS, 130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986). A statute violates equal protection only when "the legislature has made an irrational or arbitrary classification, one that has no reasonable purpose relationship to the facts or a proper state policy." or Id. at 99. Any doubts must be resolved in favor of the reasonableness of the classification. State v. Hezzie R., 219 Wis. 2d 848, 894, 580 N.W.2d 660 (1998). ¶12 "'The fact [that] a statutory classification results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment.'" Id. at 893-94 (quoting State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654 (1989)). Indeed, "'[e]qual protection does not deny a state the power to treat persons within its jurisdiction differently . . . .'" at 893 (quoting McManus, 152 Wis. 2d at 131). basic test is classification justify the not but whether whether inequality of Brewers, 130 Wis. 2d at 99. some there the inequality exists a Id. However, "[t]he results from the rational basis to classification." Milwaukee In determining whether a rational basis exists, we look first to determine whether the legislature articulated a rationale for its determination. 7 See id. at 99- No. 101. 99-1058 If we cannot identify any such articulated rationale, it is the court's obligation to construct one. ¶13 Id. at 101. We conclude that Nankin has met his burden in proving beyond a reasonable doubt that Wis. Stat. § 74.37(6) violates equal protection. We reach separate determinations. enacting § 74.37(6), this conclusion based on three The first determination is that, in the legislature created a distinct classification of citizens, that is, owners of property located in counties with a population of 500,000 people or more. The parties do not dispute that the statute created this classification. ¶14 treats Our this similarly statute second class determination significantly situated. treats the In class is that different the from legislation all particular, as Nankin differently by prohibiting others asserts, it the from filing a circuit court action under Wis. Stat. § 74.37(3)(d) to challenge the excessiveness of their property assessment. All other owners of property located in counties with a population of less than 500,000 are entitled to proceed under this statute. The inequality results from advantages stemming from circuit court actions under § 74.37(3)(d), which are not available to the disfavored class. We provide analysis on our conclusion below. ¶15 Our final determination is that Nankin has met his burden in proving beyond a reasonable doubt that there is no rational basis § 74.37(6). for the classification under Wis. Stat. The legislature did not articulate any rationale 8 No. for the classification, and we are rationale for this classification. for the legislature to treat unable to 99-1058 construct a There is no rational basis owners of property located in municipalities in different counties dissimilarly in challenging their property tax assessments based solely on the population of the county in which the property is situated. Again, our analysis below shows how we reach this determination. ¶16 We begin with some background on property tax administration for general property in Wisconsin. On the whole, municipalities property administration form in the primary Wisconsin. In units of particular, the tax statutes designate any town, city, or village in which general property taxes are levied Stat. § 70.045. and collected as taxation districts. Wis. Each taxation district is required to have an assessor, and this assessor may be appointed or elected. § 70.05(1).6 Stat. In the alternative and under Wis. certain conditions, counties may adopt and implement a county assessor system. ¶17 Wis. Stat. § 70.99(1). The assessment of general property in each town, city, and village is made according to Wis. Stat. Ch. 70. § 70.05(1). Wis. Stat. It is the assessor's duty to discover, list, and value all taxable real and personal property within the taxation district and annually report such information in an assessment roll for the district. Wis. Stat. §§ 70.10, 70.29, 70.32(1) 6 First class cities have special provisions for their assessors. Wis. Stat. § 70.06. Classes of cities are defined by statute. See Wis. Stat. § 62.05. 9 No. (2). 99-1058 If a property owner disagrees with an assessment, the owner may file a formal objection with the municipality's board of review. ¶18 Wis. Stat. § 70.47(7)(a).7 The board of review, however, "is not an assessing body but rather a quasi-judicial body whose duty it is to hear evidence tending to show errors in the assessment roll and to decide upon the evidence valuation is correct." adduced whether the assessor's State ex rel. I.B.M. Corp. v. Bd. of Review of Fond du Lac, 231 Wis. 303, 306, 285 N.W. 784 (1939). The board must presume that the assessor's valuation is correct, and this presumption may be rebutted only by sufficient showing upon sworn oral testimony by the objector that the valuation is incorrect. Wis. Stat. § 70.47(8)(i). If the board determines that the assessment is too high or too low, it must raise or lower the assessment accordingly. ¶19 owner above. After may the pursue Our board one of § 70.47(6), (9)(a). renders the analysis focuses its three on the decision, appeal the options differences property discussed between the certiorari review available under Wis. Stat. §§ 70.47(13) and 70.85(4)(c) and a circuit Stat. § 74.37(3)(d). court action permitted under Wis. A close analysis reveals that a property owner who is able to pursue a circuit court action is placed at a significant advantage when compared to other property owners. 7 In first class cities and certain second class cities, a board of assessors will hear complaints before objections are brought before a board of review. See Wis. Stat. §§ 70.07, 70.075, 70.47(16). 10 No. ¶20 Certiorari review under Wis. Stat. 99-1058 § 70.47(13)8 is limited to a review of the record made before the board of review. State ex rel. Hemker v. Huggett, 114 Wis. 2d 320, 323, 338 N.W.2d 335 (Ct. App. 1983). Thus, the court may not conduct its own factual inquiry and may not admit any new evidence. Id. On review, the court only considers the following factors: (1) whether the board acted within its jurisdiction; (2) whether the board acted according to law; (3) whether the board's action was arbitrary, oppressive or unreasonable, representing its will rather than its judgment; and (4) whether the evidence was such that the board might reasonably make the order or determination in question. Waste Mgmt., Inc. v. Kenosha County Bd. of Review, 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994). ¶21 An assessment that was made in accordance with the statutory mandate must be upheld if it can be supported by any reasonable view of the evidence. Id. The court will not make an assessment of the property; instead, if it finds any error that renders the assessment void, the court must set aside the assessment and remand to the board for further proceedings. at 566; State ex rel. Garton Toy Co. v. Town of Mosel, Id. 32 Wis. 2d 253, 258, 145 N.W.2d 129 (1966); Wis. Stat. § 70.47(13). 8 Our discussion of certiorari review of the board of review's decision applies equally for certiorari review of the department of revenue's decision. Wisconsin Stat. § 70.85(4)(c) does not expand on the grounds for certiorari review. Therefore, it is appropriately defined, similar to Wis. Stat. § 70.47(13) review, under common law certiorari. See Hanlon v. Town of Milton, 2000 WI 61, ¶23, 235 Wis. 2d 597, 612 N.W.2d 44; State ex rel. Wis. River Power Co. v. Bd. of Review of Armenia, 125 Wis. 2d 94, 97, 370 N.W.2d 580 (Ct. App. 1985). 11 No. ¶22 We compare this review to a circuit permitted under Wis. Stat. § 74.37(3)(d). 99-1058 court action Again, pursuant to this section, after a claim in the taxation district or county is disallowed, a property owner may file an action in the circuit court to recover any amount of property tax imposed as a result of an excessive assessment. This action practice. ¶23 proceeds according to § 74.37(1), (2), (3)(d). state civil procedure and See Wis. Stat. § 801.01(1), (2). The Village argues that S.C. Johnson, 206 Wis. 2d 292, already concluded that the differences between certiorari review and a court action under Wis. Stat. § 74.37(3)(d) do not result in significantly different treatment between owners of property located in populous counties and other property owners in the state. In S.C. Johnson, an owner of property located in Racine County filed a claim and action under § 74.37. Id. at 296. After concluding that the owner could pursue this action, the court examined whether prohibiting counties violated equal protection. this right in Id. at 306-08. populous The court addressed this argument even though it concluded that the party raising the argument, a municipality, had challenge the constitutionality of the statute. 306-08. no standing to Id. at 302-04, The court concluded that, despite the anomalies that existed between certiorari review and a § 74.37(3)(d) action, the legislative distinction was insufficient to violate equal protection. Id. at 308. In reaching its determination, the court noted that the distinction merely dealt with "the method by which the right of judicial review is pursued," rather than 12 No. 99-1058 whether judicial review was provided at all, which the court suggested may have raised some equal protection concerns. ¶24 We disagree court of appeals. that an with the characterization made Id. by the The problem with this characterization is action under Wis. Stat. § 74.37(3)(d) another means of judicial review. is not simply Judicial review entails "[a] court's review of a lower court's or an administrative body's factual or legal findings." 1999). Black's Law Dictionary 852 (7th ed. That is not the case in an action under § 74.37(3)(d). Instead, this statute affords the claimant the right to pursue an action according to state civil including the right to a trial.9 practice and procedure, This difference is significant because, unlike certiorari review, § 74.37(3)(d) actions allow property owners to again fully contest their case in a court trial despite having contested it before the board of review. ¶25 The differences between certiorari review are considerable. such court actions and To begin with, as mentioned above, certiorari review is limited to a review of the record. In comparison, during a court action, if the action proceeds to trial, the court may make its determination without regard to 9 In S.C. Johnson & Son, Inc. v. Town of Caledonia, 206 Wis. 2d 292, 301, 557 N.W.2d 412 (Ct. App. 1996), the court of appeals referred to a Wis. Stat. § 74.37(3)(d) action as a "trial de novo." This was incorrect. "A trial de novo is a new trial in which the whole case is retried as if no trial whatsoever had been had in the first instance." Vill. of Menomonee Falls v. Michelson, 104 Wis. 2d 137, 149, 311 N.W.2d 658 (Ct. App. 1981). Although assessments are contested at the board of review, such board hearings cannot be said to be the same as a court trial, which is permitted under to § 74.37. 13 No. 99-1058 any determination made at any earlier proceeding. Instead, new evidence may examine evidence in be introduced, making its and the court determination. In may addition, this unlike certiorari review, during a court trial, the court may make its determination without giving deference to any determination made at a previous proceeding. The court must only give presumptive weight to the assessor's assessment. Wis. Stat. § 70.49(2). Finally, unlike a certiorari review, in a trial, the court, upon making its determination, is not required to remand to the board for an assessment. evidence. It may make its determination based on the The court is only limited in the respect that, if a reassessment is necessary, the court must continue the action and order the reassessment before rendering its judgment. Stat. § 74.39(1). Wis. However, even if a reassessment is necessary, the court may still proceed to judgment if it is in the best interests of all parties to the action. ¶26 The legislative history of § 74.39(3). Wis. Stat. § 74.37 also supports the conclusion that the legislature intended an action for excessive assessment to provide a significantly different option for property owners challenging their assessments. than mere certiorari review in In 1953, the legislature created Wis. Stat. § 70.47(9a) (1953), which permitted certiorari review from the board of review decision, and Wis. Stat. § 74.73(4) (1953), which prohibited any claim or court action based upon an alleged board excessive of review assessment to the and manner 14 restricted prescribed appeal under from the § 70.47(9a) No. (1953) and other statutes.10 A drafting request 99-1058 See §§ 1-2, ch. 435, Laws of 1953. dated January 25, 1955, shows that Lieutenant Governor Warren Knowles wanted to revise ch. 435, Laws of 1953 to allow the circuit court to "take testimony and make finding of fact in assessment cases." Drafting Request, microformed on ch. 440, Laws of 1955 (Leg. Ref. Bureau). specifically, he sought to amend certiorari review in More the circuit court so that the court had "the authority to weigh evidence and make a final determination of the facts." Id. The request noted that, at that time, the court could only remand to the board of review for a new assessment. ¶27 Id. In response to this request, however, the legislature did not broaden the scope of certiorari review in the circuit court. Instead, the legislature repealed and recreated Wis. Stat. § 74.73(4) (1953), to permit a circuit court action for any excessive assessment under § 74.73(4) (1955). Laws of 1955. Wisconsin Stat. § 70.47(9a) intact and was later renumbered as § 70.47(13). 34, Laws of 1979. See ch. 440, (1953) was left See § 878, ch. This request and subsequent action by the legislature shows that the legislation's intent was to provide property owners with a full court trial when challenging their 10 The other statutes included Wis. Stat. § 70.47(13) (1953), which, like the current § 70.47(16), provided for special objection procedures for residents of first class cities, and Wis. Stat. § 70.85 (1953), which, similar to the current § 70.85, permitted property owners to challenge the valuation of their assessment before the department of taxation. Section 70.85 (1953), however, did not provide for certiorari review in the circuit court. 15 No. 99-1058 assessment, which was significantly different than the existing certiorari review. ¶28 The Village argues that an equal protection violation is not present because the board of review provides adequate due process to property allege that no owners. disparate We interpret treatment exists this argument because to property owners are essentially afforded the same process at the board of review as they are in a circuit court action. focus, however, certiorari is review in and comparing a court the Our primary differences trial. However, between even when comparing the board of review hearing to a court trial on an excessive assessment, significant safeguards it is apparent that provide that a further trial offers advantages to property owners who may pursue such court actions. ¶29 First, a court trial allows property owners to present their case in a forum that is conducted according to the rules of evidence and discovery. In contrast, presented in this manner at the board. evidence is not In particular, at the board hearing, evidence is presented only through sworn, oral testimony, Wis. Stat. § 70.47(8), and only the board may compel production of documents, § 70.47(8)(d). Such informal proceedings may lead to an incomplete or an inadequate record. See Hemker, 114 Wis. 2d at 323. Nevertheless, the board renders a decision based on this record. ¶30 Second, at a court trial, property owners can subpoena witnesses to testify at trial. In contrast, at the board of review hearing, only the assessor is required to appear, Wis. 16 No. 99-1058 Stat. § 70.48, and only the board may, and upon the request of the assessor shall, subpoena other witnesses to appear, Wis. Stat. § 70.47(8)(d). ¶31 Third, a court trial is conducted by a judge; the board of review proceedings are not necessarily conducted by such legal evidence. professionals The membership who are and versed organization in the of rules the of board of review varies depending on the size of the municipality and the nature of the assessment system, and the board may contain any number of town, city, or village residents; public officers; and public employees. ¶32 Fourth, See Wis. Stat. § 70.46(1). property owners are typically afforded a greater amount of time to prepare their case at the circuit court level than before the board of review. The final assessments by the assessor and the delivery of the assessment roll takes place only a short time before the board of review meets.11 Indeed, notice must be provided to property owners 15 days before the board meeting when property is assessed at a different value than the previous year. 11 Wis. Stat. § 70.365. Property assessment must be handled in a timely manner by the assessor. Assessors must assess all real and personal property as of the close of January 1 of each year. Wis. Stat. § 70.10. Except in first and second class cities that have a board of assessors, the assessments must be completed before the first Monday in April, Wis. Stat. § 70.10, and the assessor must deliver the completed roll and all sworn statements and valuations of personal property to the clerk of the taxation district by the first Monday in May, Wis. Stat. § 70.50. The board then is required to meet at any time during the 30-day period beginning on the second Monday of May. Wis. Stat. § 70.47(1). 17 No. 99-1058 However, property owners are then immediately required to file an objection before the meeting, and the board only has to provide property owners with 48 hours notice before the hearing. See Wis. Stat. § 70.47(3)(a)5., (7)(a). The additional time afforded through a court trial enables property owners to better prepare their case. ¶33 owner On the whole, these differences show that a property who treated is permitted significantly to pursue different a than circuit property court action owners who limited to mere certiorari review in the circuit court. is are Thus, having reached this conclusion, we continue to the next step of our equal protection analysis: ¶34 basis in rational basis. In addressing whether the legislature had a rational establishing the classification under Wis. Stat. § 74.37(6), Nankin asks us to look at where the legislature drew the "line of demarcation" for the classification, that is, the line that separates the favored and disfavored classes. We examined a similar "line of demarcation" in Milwaukee Brewers for purposes of equal protection analysis. 130 Wis. 2d at 104-05. that the line is drawn In this case, Nankin correctly asserts at population of the county. there is drawn the property a rational line owners at the the county border, based on the The question then becomes whether explanation for this Milwaukee Brewers, border right under to the a legislature statute challenge that their assessments made by a municipality within that border. 18 to have affords property No. ¶35 99-1058 We have upheld classifications based on population on several occasions. See, e.g., Libertarian Party v. State, 199 Wis. 2d 790, 546 N.W.2d 424 (1996) (per curiam); Johnson v. City of Milwaukee, 88 Wis. 383, 60 N.W. 270 (1894). In fact, we have noted that it is no longer open to doubt that counties may be classified according to population. Milwaukee County, 224 Wis. 373, Vill. of Whitefish Bay v. 377, 271 N.W. 416 (1937). However, such classifications are not without limitations. It is a mistaken idea that because classification on the basis of population is sustainable in respect of legislation on certain subjects, it may be appropriate for all purposes of classification in legislative enactments. Such a basis for classification must have a reasonable relation to the purposes and objects of the legislation, and must be based upon a rational difference in the necessities or conditions found in the groups subjected to different laws. If no such relation and differences exist, the classification is invalid. 16B Am.Jur.2d omitted); see Constitutional also Chicago Law Nat'l § 845 League (1998) Ball (footnotes Club, Inc. v. Thompson, 108 Ill. 2d 357, 369, 483 N.E.2d 1245 (1985). ¶36 Nankin argues that the line of demarcation is irrational in this case because property assessments and reviews of these assessments are conducted at the municipal government level, not at the county level. In light of this fact, Nankin asserts that it may have been rational for the legislature to have drawn the line based on the population of the municipality and thereby action under restricting Wis. some Stat. municipalities § 74.37(3)(d). from pursuing However, it an was irrational for the legislature to have drawn the line at the 19 No. county border, and therefore, it is a violation 99-1058 of equal protection. ¶37 A review of the legislative history for Wis. Stat. § 74.37(6) and its predecessor Wis. Stat. § 74.73(4) (1955) shows that the legislature did not articulate any rationale for its classification. rationale. reasons judicial Therefore, we are obligated to construct a To aid in our determination, the Village offers two for the classification. workload in a county First, with it a asserts large that the population is substantially more than in a county with a small population, and by prohibiting § 74.37(3)(d) actions in counties with a large population, the judicial Second, it argues located in counties workload that, by with becomes a restricting large more manageable. owners population of to property certiorari actions, review of these assessments may occur at a faster pace, because circuit courts must give preference to such certiorari actions. Village See Wis. Stat. § 70.47(13). asserts, because it depends This is important, the on the tax collected on property for their budgets. ¶38 We conclude rational basis workload and for that the timely court resolution differs explanation classification. concerns of all counties. circuit neither of In property serves short, as a judicial assessments are Certainly, the volume of cases in the between counties; however, as Nankin asserts, the legislature has sought to offset such disparities between counties by awarding each county a certain amount of 20 No. judicial branches depending on such volume. See 99-1058 Wis. Stat. § 753.06. ¶39 We have stated that a legislative classification will satisfy the rational basis standard if it meets the following five criteria: (1) All classification[s] must be based upon substantial distinctions which make one class really different from another. (2) The classification adopted must be germane to the purpose of the law. (3) The classification must not be based upon existing circumstances only. [It must no be so constituted as to preclude addition to the numbers included within the class]. (4) To whatever class a law may apply, it must apply equally to each member thereof. (5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. Aicher, 2000 WI 98, ¶58 (alterations in original). Under this test, the first, second, and fifth criteria are not satisfied. ¶40 upon the factor, such The classification under Wis. Stat. § 74.37 is based population of population must that it makes the a county. constitute class different from other classes. constitutes different a substantial needs, Thus, a created substantial by the the first distinction, statute really We have indicated that population distinction conditions, applying or when requirements the classes with have respect to purposes of the legislation such that a statutory classification is justified to account for these differences. 21 See Johnson, 88 No. Wis. at 390-91; cf. City of Brookfield v. 99-1058 Milwaukee Metro. Sewerage Dist., 144 Wis. 2d 896, 916, 426 N.W.2d 591 (1988). ¶41 In this case, however, population does not constitute a substantial distinction that makes one class really different from another. There is nothing inherent about populous counties to justify the classification in the statute that restricts the manner in which owners of property located in such counties may challenge their assessments. Populous counties do not afford any additional means to address property assessments such that a Wis. Stat. § 74.37 action is unnecessary in such counties. Moreover, populous counties do not present any special problems or concerns such that it is rational to restrict such circuit court actions in populous counties. located in Indeed, owners of property populous counties particularly owners of property located in towns, villages, and small cities in the county have as great property an interest assessment as in obtaining owners counties in the state. of a court property trial on their located in other There is no reason why an owner of property located in the Village of Shorewood in Milwaukee County should be treated differently than an owner of property in the Village of challenging Amherest their in Portage property County with assessments. No respect to substantial distinction exists. ¶42 The second factor is also not met in this case because the classification is not germane to the purpose of the law. The purpose of the law is to afford property owners a means to challenge their property assessments. 22 Assessments and board of No. review hearings are conducted at the municipal level. no justification for using the population of a legislation that is based on a municipal function. 99-1058 There is county in Further, as mentioned, there is no justification in prohibiting only owners of property in populous counties from challenging their property assessments under Wis. Stat. § 74.37. Judicial resources in all counties are equally burdened by § 74.37 actions; it cannot be said that populous counties, with their additional judicial resources, are in need of greater relief in this respect than other counties. ¶43 Finally, the fifth prong of the test is also not met. Under this prong, we examine whether the characteristics of each class are so far different as to reasonably suggest at least the propriety, as to the public good, of substantially different legislation. This factor is based on the following reasoning: "The true practical limitation of the legislative power to classify is that the classification shall be based upon some apparent natural reason,some reason suggested by necessity, by such a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or propriety of different legislation with respect to them." State ex rel. Risch v. Bd. of Trs. of Policemen's Pension Fund, 121 Wis. 44, 54, 98 N.W. 954 (1904) (quoting Nichols v. Walter, 37 Minn. identify 264, any 272, 33 N.W. difference in 800 (1887)). situation or We are unable circumstance to between properties located in populous counties and properties located 23 No. 99-1058 in other counties in the state that would necessitate different legislation for assessment. the classes Properties in in challenging both classes their are property assessed and reviewed in the same manner, regardless of the population of the county in nothing which to the property distinguish is property located. situated Again, in there Shorewood is from property located in any other village throughout the state with respect to the assessment of property. Thus, an analysis under these factors supports our conclusion that this classification is not supported by a rational basis. ¶44 Certainly, the legislature may create a classification in a statute based on population. In fact, we upheld such a classification in State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971).12 Cady involved a dispute over whether a certain legislative scheme for providing revocation hearings to probationers violated equal protection. Id. at 550-51. The scheme provided that probationers in counties with a population of less than 500,000 would be in the legal custody of an administrative agency while probationers with a population of 500,000 or more would be in the custody of the probation departments of the criminal branches of the circuit courts. at 552. As a result, probationers in small counties Id. would receive an administrative hearing, while probationers in large 12 See also City of Marshfield v. Town of Cameron, 24 Wis. 2d 56, 62-64, 127 N.W.2d 809 (1964) (upholding classifications based on county population where the statute pertained to apportionment of public utility taxes to school districts). 24 No. counties would receive a judicial hearing. noted that such classifications by 99-1058 Id. at 551. population violated We equal protection only where they were found irrational and arbitrary, that is, where the legislature abused its discretion beyond a reasonable doubt. Id. at 552. We concluded by stating that "[w]e are not convinced that a classification established by the legislature, which provides for different procedures in counties having a population arbitrary. of more than 500,000, is irrational or Thus, the difference in procedure does not offend the constitutional provisions requiring equal protection of the law." Id. at 553. ¶45 The Village argues that Cady supports its position that the classification under Wis. Stat. § 74.37(6) does not violate equal protection. However, the differences in procedure in Cady did not meet the high standard required for proving an equal protection violation. Since Cady, however, we have determined that substantial differences in procedure may offend equal protection guarantees in certain instances if there is no rational basis Brewers, 130 provisions to support Wis. 2d relating these at 106 to differences. (finding administrative procedures violated equal protection). likewise proven classification treats members rational at of basis. beyond issue In two and judicial violates equal doubt review that protection significantly 25 legislative In this case, Nankin has reasonable turn, Milwaukee that a classes See although because different Cady the without shows it a that No. 99-1058 classifications by population are permissible in some cases, it does not limit our holding in this case. ¶46 treatment In of sum, we conclude Nankin and other that the statute's owners of property disparate located in populous counties is without a rational basis, and as a result, the statute violates equal protection. ¶47 We recognize that our determination that Wis. Stat. § 74.37(6) violates equal protection is in direct contrast to the conclusion reached in S.C. Johnson. In S.C. Johnson, relying on Cady, the court of appeals concluded that "[g]iven the deference which the law accords classifications based on population, we see nothing irrational or legislative scheme at issue in this case." Wis. 2d at 308. arbitrary in the S.C. Johnson, 206 However, based on our analysis above, we find the statute both irrational and arbitrary, and therefore, we conclude that S.C. Johnson incorrectly decided this issue. As a result, we overrule that portion of S.C. Johnson. SEVERABILITY ¶48 statutes The under legislature the provides general rules for of the severability statutory construction. Specifically, Wis. Stat. § 990.001(11) provides: The provisions of the statutes are severable. The provisions of any session law are severable. If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application. 26 of No. 99-1058 Thus, this language generally allows for severability when the invalid section can be severed without affecting the remainder of the statute. ¶49 We have likewise stated appropriate under such circumstances. that severability is However, we have required that an examination of legislative intent must take place first: "Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability." "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." State v. Janssen, 219 Wis. 2d 362, 379, 580 N.W.2d 260 (1998) (citations omitted). ¶50 The legislative history of Wis. Stat. § 74.37(6), including the history of its predecessor Wis. Stat. § 74.73(4) (1955), reveals that the classification has been a part of the statute since 1955, when claims for excessive assessment were first permitted in the circuit court. 1955. See ch. 440, Laws of However, nothing in the legislative history reveals that the legislature intended that any part of the statute would not be severable from the whole. Indeed, as § 74.37 currently stands, subsection (6) may be severed and the remainder of the statute will remain fully operative. Thus, because the legislature has not indicated its intent otherwise, we conclude that § 74.37(6) is severable from the remainder of the statute. CONCLUSION 27 No. ¶51 99-1058 Based on our analysis above, we conclude that Nankin has met his burden of proving that Wis. Stat. § 74.37(6) is unconstitutional classification members of as a violation established the class outside the class. in of this significantly equal protection. statutory The section treats than members different We cannot determine any rational basis for this disparate treatment. Accordingly, we find this statutory section unconstitutional. We reverse the decision of the court of appeals and grant summary judgment in favor of Nankin. We also grant Nankin's request for a permanent injunction to allow him to file a claim under § 74.37 with the Village. We deny his request for costs associated with this case. By the Court. The decision by the court reversed. ¶52 DIANE S. SYKES, J., did not participate. 28 of appeals is No. ¶53 the N. PATRICK CROOKS, J. majority's opinion legislature's it classification fails to the the majority has presented accord to the presumption constitutionality to which it is entitled. or I cannot join (dissenting). because 99-1058.npc convinces of Nothing that Nankin me that Wis. Stat. § 74.37(6) is unconstitutional beyond a reasonable doubt. By focusing on procedural differences, rather than the rationale for allowing property owners in less populous counties the additional remedy of court review of their tax assessments, the majority has second-guessed a presumptively reasonable statute that has guided this state for 45 years. The legislature chose to allocate remedies regarding review assessments on the basis of population. of property tax Less populated counties received three remedies; counties with 500,000 or more people received two remedies. This statute is constitutional because the population distinction is intended to relieve the judicial burden in populous courts. ¶54 question Through its holding the majority has also called into the myriad of population differences. make policy decisions other statutes which are based upon The legislature needs to be able to based upon accompany differences in population. the various demands which Here, the legislature made a policy decision to give one more remedy to less populated counties than to the populous counties, in overburdening the populous counties' courts. order to prevent So long as there is any reasonable basis for this legislation, we should uphold it. 1 No. ¶55 99-1058.npc Wisconsin Stat. § 74.37 allows all property owners the following avenues of review of their property tax assessments. Property owners can have their assessment reviewed by a board of review under Wis. Stat. § 70.04. decision reviewed § 70.47(13). by They can then have the board's certiorari Alternatively, to if a the circuit court assessment is under under $1 million, they can file a complaint with the Wisconsin Department of Revenue in accord with § 70.85. Those who own property in counties with less than 500,000 have the additional option under § 74.37 of submitting a claim for excessive assessment, and, if the tax district or county disallows that claim, they may seek de novo review by initiating a claim in circuit court to recover the allegedly excessive assessment. not, contrary legislature counties to has with a the majority's irrationally population This additional option does conclusion, deprived of mean property 500,000 or that the owners in more of equal protection under the law. ¶56 whether As the majority acknowledges, this court must examine the legislature's choice to classify population is supported by a rational basis. ¶11. according to Majority op. at If the legislative history does not provide the rational basis, the court must construct one, if possible. Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980). The legislative history of Wis. Stat. § 74.37(6) does not articulate a rationale for the population classification, so it is unclear why the majority discussed the length. 2 legislative history at such No. ¶57 99-1058.npc The rationale for Wis. Stat. § 74.37(6) seems clear from an analysis of the statute itself. The additional process of de novo review would be too burdensome on the more populous counties. The burden on a populous county, and the concomitant burden its on courts, is already evident as only Milwaukee County Circuit Court has 47 branches, 29 more than the next busiest circuit court, Dane County. 5850 (1999-2000). Wis. Stat. App. pp. 5849- Furthermore, Milwaukee County alone comprises a judicial administrative district, Amicus Curiae Br. at 4 n.3, and Court County. of Appeals District I Wis. Stat. App. p. 5645. also serves only Milwaukee Currently, Milwaukee County alone experiences this burden of population, but other counties are certainly growing in population, and will likely join the classification in the future. Over 120 years ago, the United States Supreme Court recognized the burden of population on the courts and that the legislature should be able to take this into consideration. ". . . A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State. . . . Large cities may require a multiplication of courts and a peculiar arrangement of jurisdictions. It would be an unfortunate restriction on the powers of the State government if it could not, in its discretion, provide for these various exigencies. State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 551, 185 N.W.2d 306 (1971) (quoting Missouri v. Lewis 101 U.S. 22, 25 (1879)). 3 No. 99-1058.npc As the United States Supreme Court has recognized how population places a burden on the courts, this court should have considered whether the legislature reasonably wanted to ease the additional burden of § 74.37 on populous counties. ¶58 For nearly a century, this court has held that the legislature may classify counties according to population. State ex rel. Scanlan v. Archibold 146 Wis. 363, 131 N.W. 895 (1911); see also Village of Whitefish Bay v. Milwaukee County, 224 Wis. 373, 377, 271 N.W. 416 (1937). "That counties may be classified according to population has been said to be no longer Scanlan, 146 Wis. at 370. open to doubt." Furthermore, for the last five years, S.C. Johnson & Son, Inc. v. Town of Caledonia, 206 Wis. 2d 292, 308, 557 N.W.2d 412 (Ct. App. 1996), rev. denied, 208 Wis. 2d 212, 562 N.W.2d 602 (1997), has specifically held that Wis. Stat. § 74.37(6) does not violate equal protection, because there is a rational relationship between the classification majority's and a decision legitimate today governmental unfortunately has purpose. the The effect of overruling this line of cases that support the legislature's classification based on population. ¶59 majority In addition now makes to overruling numerous other clear statutes precedent, vulnerable to the an equal protection challenge. There are at least 175 Wisconsin Statutes that classify according to population. are at activity least based 24 that, on the without dispute, same population Of those, there explicitly classification "counties having a population of 500,000 or more." 4 regulate of Wis. Stat. No. §§ 45.058 (memorials department of in social populous services counties), in populous 99-1058.npc 46.215 (county counties), 46.48 (grants for community programs), 48.07 (additional sources of court services), 48.561 (child welfare services in populous counties), 48.58 (county children's home), 49.025 (relief block grant to populous counties), 51.08 (maintenance of mental health complex), 59.20 (election of county officers), 59.60 (budgetary procedures), 59.79 (county commission), 59.82 (cash buildings and cities), 167.27 structures), deemed flow excavations), (capping 228.02 original records), board 75.67 (procedures and filling 228.04 (marginal 59.80 designation), (certification record), 228.05 functions), of 60.05 for wells records), (inspection references in (crime (razing authorized or similar 228.03 and (copy copies records), of 228.06 (corrections and alterations of records), 252.076 (joint county home and county tuberculosis sanatorium), 799.05 (language of small claims summons), and 938.06 (services for court). statutes are further justification for the These conclusion that population is a distinguishable characteristic for legislation. In fact, there is an entire chapter in the statutes dealing only with the cities. treatment of Wis. Stat. Ch. 228. records in populous counties and Because the majority neglects to provide guidance regarding what is a rational distinction, these statutes, population, as well are now as all other vulnerable challenges. 5 to classifications future equal based on protection No. ¶60 99-1058.npc In arriving at its conclusion, the majority assumes that towns and villages in counties with a population of less than 500,000 are similarly situated to those in counties with a population greater than 500,000. Since this is just an assumption, it can reasonably be argued that towns and villages in counties with a population greater than 500,000 are not so similarly situated. ¶61 make a The majority also assumes that the legislature cannot distinction as to remedies based on classifications. Yet, this is exactly what the legislature has done with workers' compensation. 102, The Worker's Compensation Act, Wis. Stat. Ch. distinguishes remedies for injuries, based on the classification of employment, in order to ensure that covered employees who become injured comprehensive medical care. or ill receive prompt and UFE Inc. v. Labor & Indus. Review Comm'n, 201 Wis. 2d 274, 288, 548 N.W.2d 57 (1996). ¶62 The majority struck down Wis. Stat. § 74.37(6) because the statute distinguished remedial procedures on the basis of population. However, this is the same legislative classification this court upheld in State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971). an equal protection In Cady, this court upheld, against challenge, a statute different remedies on the basis of population. 553. The statute at issue in probation revocation procedures. Cady which provided 50 Wis. 2d at distinguished between Probationers in counties with a population of less than 500,000 received an administrative hearing upon revocation. Id. at 551. 6 Probationers in a county No. 99-1058.npc having a population of more than 500,000 Milwaukee County received a judicial hearing upon revocation. Id. at 550. The court upheld the statute, stating: "We are not convinced that a classification legislature, established by the which provides for different procedures in counties having a population of more than 500,000, is irrational or arbitrary. in procedure does not offend the constitutional requiring equal protection of the law." ¶63 Cady Even are distinguish though striking, Cady. the majority Majority op. between this nonetheless at provisions Id. at 553. similarities the Thus, the difference ¶45. The case and attempts to legislative classification is exactly the same, as both distinguish counties with a population of less than 500,000 from counties with a population of 500,000 or more. See Cady, 50 Wis. 2d at 552. Furthermore, just like here, where the population classification determines the remedial procedure for review of tax assessments, the population classification in Cady determined the remedial procedures for probationers. classification determines And just like here, the population the 7 difference between an No. 99-1058.npc administrative hearing and a judicial hearing.13 This court found in Cady that an identical statutory classification based on population - was not "irrational and arbitrary," Cady, Wis. 2d at 553, and the majority's attempts to distinguish it are not convincing. ¶64 Moreover, differences the between Majority op. at ¶25. however, by protection, certiorari certiorari review is of hangs review its and de hat on novo the review. Cady implicitly rejected this distinction, concluding there majority the that, no for the substantial administrative purposes of difference hearing of equal between probation revocation and a judicial hearing (de novo) for a probationer in Milwaukee County. Here, the difference is even less significant because of residents all counties review in the circuit courts. have access to certiorari The legislature has simply chosen to provide an additional remedy of de novo review to residents in less populous counties. 13 While the classification distinctions are the same, the difference between this case and State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971), is the review granted to each population class. In Cady, probationers in the populous county received a judicial hearing and all other probationers received an administrative hearing followed, if desired, by certiorari review. 50 Wis. 2d 540, 549-51, 185 N.W.2d 306 (1971). The opposite is true in this case. Residents of the populous county receive administrative review and certiorari review in the circuit court, of their tax assessments. All other residents have administrative review, certiorari review, and the additional remedy of de novo review in the circuit court. 8 No. ¶65 99-1058.npc Without meaningful distinction, the majority refuses to rely on the similarities in Cady. The majority also fails to recognize that if there was ever a situation to require absolute equal treatment of individuals, it would be in the situation such as Cady, where probationers are being returned to prison. This court held in Cady, that even in a situation where a person's conditional liberty is at stake, it is not a violation of equal protection for the legislature to designate on the basis of population, procedures available to provide a remedy. Reviewing tax assessments has less severe consequences than the loss of liberty.14 ¶66 has In addition to the statute in Cady, the legislature distinguished procedures on numerous other statutes as well. the basis of population in For example, under Wis. Stat. § 938.06, a populous county is required to operate a children's court center and in a less populous county the county department provides intake services. Under § 59.20, residents of a less populous county elect a county coroner and county surveyor, but residents of a county with a population greater than 500,000 do not. Section § 74.37(6) should be upheld, because it does not deprive any individual of a review of a property tax assessment; the legislature simply chose to provide an additional remedial procedure to property owners in less populous counties. 14 Also, arguably, in Cady, it would be more of a burden on the populous county courts to provide a judicial hearing for probation revocation. See ¶57 herein. Yet, this court determined that distinguishing according to population was neither irrational nor arbitrary. Cady, 50 Wis. 2d at 553. 9 No. ¶67 99-1058.npc The law provides us with a presumption when deciding whether a legislative classification violates equal protection guarantees. The presumption majority's assumption that is the distinction based on population. the legislative classification exactly opposite legislature of cannot the make a The court must presume that is constitutional. Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 79, 387 N.W.2d 254 (1986). The court must also "indulge every presumption to sustain the law if at all possible" and resolve all doubts "in favor of the reasonableness of the classification." op. at ¶¶10, 11. Such presumption must be overcome, if it is to be overcome, beyond a reasonable doubt. Wis. 2d at 99. Majority Milwaukee Brewers, 130 In reaching its conclusion, the majority fails to apply the proper presumption in favor of constitutionality. ¶68 situation Contrary to the majority's conclusion, this is not the we had before us in Milwaukee Brewers. The challengers in Milwaukee Brewers were residents of a six-block area that were singled out by legislation, and given only the meaningless option of an informational hearing as the process to challenge an Environmental Impact Study (EIS) for building a prison. Milwaukee Brewers, 130 Wis. 2d at 96-97. different because all taxpayers, including This case is residents in Milwaukee County, are entitled to a meaningful review of their assessment by a board of review. Even without the additional claim procedure, Milwaukee County residents, unlike the challengers in Milwaukee Brewers, have such a meaningful right. 10 No. ¶69 99-1058.npc The situation in Milwaukee Brewers was also different because it involved new legislation, so far limiting the process to challenge an EIS review, that it essentially residents from contesting the prison location. prevented Id. at 105-106. The instant case involves a statute that has been on the books for 45 years, and the majority now, in effect, removes it, without hesitation, by holding that it is unconstitutional. ¶70 This legislative classification based on population is constitutional, discussed by because the it majority meets as all necessary five of the criteria to meet the rational basis standard. (1) All classifications must be based upon substantial distinctions which made one class really different from another. (2) The classification adopted must be germane to the purpose of the law. (3) The classification must not be based upon existing circumstances only and must not be so constituted as to preclude addition to the numbers included within a class. (4) To whatever class a law may apply, it must apply equally to each member thereof. (5) The characteristics of each class could be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. Milwaukee Brewers, 130 Wis. 2d at 97. ¶71 decision different Under the first criteria, the majority justifies its by denying that from another." population Majority makes op. at one ¶41. class "really The majority refuses to recognize that population distinguishes classes with different needs, conditions, or requirements with respect to the 11 No. burden on the courts. See majority op. at ¶40. 99-1058.npc Through its denial, the majority fails to recognize that certain benefits inure to residents in populous counties. Residents of Shorewood, as well as all other residents of Milwaukee County, are benefiting explicitly from living in a county which contains the city of Milwaukee. As a first class city, Milwaukee gets benefits and aid to which other cities are not entitled, and, often, all of the county's residents, therefore, also receive a benefit. eligible Unlike for rural relief Forest block County, grants, community program grants, § 46.48. exclusive County, to Milwaukee including County, Shorewood, Wis. Milwaukee Stat. County § 49.025, is and As a result of the benefits municipalities benefit from in Milwaukee the population distinction. ¶72 that The majority also contradicts itself by first denying population specifically population. is a recognizing Majority distinguishable legislative op. at ¶17. factor, and classifications In footnote later based seven, on the majority acknowledges that how tax assessment contests are heard depends on population, which directly contradicts its position that population is not a distinguishable factor. Indeed, this is direct evidence that population is a distinguishable factor, and demonstrates how the legislature regulates activity as a result of population. ¶73 The population classification satisfies the second criteria, because the classification adopted is germane to the purpose of the law. Milwaukee Brewers, 130 Wis. 2d at 97. 12 The No. majority simply relies on its denial that 99-1058.npc population is a substantial distinction in finding that the classification does not meet this determination. factor, in regard to a rational basis As recognized in the list of statutes above, the legislature uses population as a distinguishing factor, because population has counties. It a direct is entirely effect on the burdens for the reasonable placed on legislature to choose, due to population, not to further burden the courts in populous counties. This is a rational basis to uphold § 74.37(6), and to find it constitutional. ¶74 The majority further believes that distinguishing population at the county line is not justified because property assessments are reviewed at the municipal level. at ¶42. Majority op. What the majority overlooks, however, is that Wis. Stat. § 74.37 provides for review in the circuit courts, which are organized by prevent further county. Because burdening the the legislature circuit courts wanted in to populous counties, it was entirely reasonable to distinguish population at the county line. ¶75 The majority fails to give the judicial burden rationale the weight it deserves, and simply dismisses it by stating, "judicial workload and timely resolution of property assessments are concerns of all counties." Majority op. at ¶38. However, this was the legislature's choice, and the legislature appears to have concluded that, for populous counties, the judicial workload was already too much. "Any reasonable basis 13 No. 99-1058.npc for the classification will validate the statute." Milwaukee Brewers, 130 Wis. 2d at 99. ¶76 Although completely ignored by the majority, the third and fourth criteria for a rational basis determination are also satisfied by the population classification in § 74.37(6). the third factor, the classification does not rest Under only on existing circumstances, as others could be added to the class. Currently, only Milwaukee County is a member of the class, but as other counties grow, they will join the class as they reach the 500,000 mark. See Scanlan, 146 Wis. at 370 (recognizing that other counties "may grow into the class.") ¶77 fourth The population criteria since classification Wis. throughout the class. Stat. also satisfies § 74.37(6) applies the equally None of the property owners in counties with more than 500,000 people have access to the additional claim procedure. ¶78 Finally, the population classification also meets the fifth prong of the test, because the characteristics of each class could be so far different from the other class reasonably to suggest the substantially factor, the difference" different property propriety, different majority based on legislation assessment." in light of legislation. finds itself population for the public Similar "unable "that classes Majority op. the at in to to good, the identify would The first any necessitate challenging ¶43. of their population difference suggests that allowing more populous counties access to the additional excessive assessment claim procedure in Wis. 14 No. Stat. § 74.37 might actually run afoul of the 99-1058.npc public good. Apart from the burden of the claim procedure on Milwaukee County and the tax districts in the county, having the circuit courts hold de novo trials on allegedly excessive assessments would be burdensome. additional Also, there may be other justifications for the procedure only in less populated counties. Many counties with smaller populations may have assessors, and those on the boards of review, that a majority of the property owners know. Circuit court review of excessive assessments de novo provides an additional assurance that there is no favoritism in the assessment. ¶79 Since the majority concluded that Wis. Stat. § 74.37(6) was unconstitutional on equal protection grounds, it did not need to address Nankin's two additional constitutional challenges: One, that § 74.37(6) violates Article IV, Section 31 of the Wisconsin Constitution as a private or special law that assesses or collects taxes.15 Two, that § 74.37(6) violates Article IV, Section 18 because it is a private or local 15 Article IV, Section 31 provides in pertinent part that "[t]he legislature is prohibited from enacting any special or private laws in the following cases: . . . [f]or assessment or collection of taxes or for extending the time for the collection thereof." However, the legislature may legislate on any subject prohibited in Article IV, Section 31, so long as the legislation complies with Article IV, Section 32: "The legislature may provide by general law for the treatment of any subject for which lawmaking is prohibited by section 31 of this article. Subject to reasonable classifications, such laws shall be uniform in their operation throughout the state." 15 No. law which addresses more than one subject.16 99-1058.npc Section 74.37 violates neither constitutional provision, just as it does not violate equal protection. ¶80 claims Wisconsin Stat. § 74.37 indisputably pertains only to made on excessive assessments, and, as such, it has nothing at all to do with the assessment or collection of taxes. On that basis, § 74.37 does not violate Article IV, Section 31. Moreover, even if § 74.37 pertained to the assessment or collection of taxes, § 74.37 complies with the requirements for a "general" "This and court "uniform" has law under consistently Article applied IV, Section 32. certain rules for determining the legislature's competence under Wis. Const. art. IV, § 32 to pass laws affecting only certain entities, such as cities or counties of a certain class or size, notwithstanding the prohibitions of Wis. Const. article IV, section 31." Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 803, 546 N.W.2d 424 (1996) (per curiam). five criteria determining or whether factors there legislative classification. that is These rules are the same comprise a rational the standard basis for for the Id.; see also ¶66 herein, above. Because the classification in § 74.37 is reasonable under the five prongs of that test, it is reasonable here, where §§ 31 and 32 of Article IV are at issue. 16 "[I]f the legislation being Article IV, Section 18 provides that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." 16 No. 99-1058.npc challenged contains classifications which are open, germane, and relate to true differences between the entities being classified, then the legislation is considered general and of uniform application." City of Brookfield v. Milwaukee Metro. Sewerage Dist., 144 Wis. 2d 896, 911, 426 N.W.2d 591 (1988). In other or words, collection, "uniform" even if it which within § 74.37 does the addressed not, meaning it of tax a is a "general Article IV, assessment law" and Section 32, and therefore proper. ¶81 IV, Wisconsin Stat. § 74.37 is also proper under Article Section 18. Since the Article IV, Section 18 challenge arises in a classification context, the analytical framework is nearly the same as the five-part test used to evaluate equal protection and Article IV, Section 31 and Section 32 challenges. See City of Brookfield, difference is that constitutional. presumption, the 144 Wis. 2d at classification is Id. at 912 n.5. there is no 911-12. not The presumed only to be However, even without this indication that § 74.37 is "local" legislation in violation of Article IV, Section 18, even though "general in form." See Village of Whitefish Bay v. Milwaukee County, 224 Wis. 373, 378-79, 271 N.W. 416 (1937). At issue in Whitefish Bay was legislation that modified the allocation of collected delinquent taxes for municipalities in counties with a population of greater than 500,000. This court found that the classification did not make the law "local" (even though the only county with a population of greater than 500,000 was Milwaukee County) because the classification was an open one. 17 No. That is, other counties could grow into it. 99-1058.npc The problem with the classification in Whitefish Bay was that it was not germane to any purpose of the law. "Counsel do not suggest, and we are unable to discover, any basis for classification resting upon population applicable to Milwaukee county that does not apply equally to every other county in the state distribution of tax moneys is concerned." so far Id. at 378. as Here, the in contrast, the classification is germane to the purpose of Wis. Stat. § 74.37(6), namely to relieve the courts in the more populous counties from the additional burden of de novo review of allegedly excessive tax assessments. ¶82 Based upon review of the five factors necessary to determine whether there is a rational basis which justifies the legislature's that the population classification, and especially legislature's classifications are presumed constitutional, I cannot join the majority's opinion. Nankin or the majority has presented convinces me given to be Nothing that the judicial burden rationale fails to provide a rational basis for the population classification, and that § 74.37(6) is unconstitutional beyond a reasonable doubt. ¶83 For all of these reasons, I respectfully dissent. ¶84 I am authorized to state that Justice JON P. WILCOX joins this opinion. 18 No. 1 99-1058.npc
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