Metropolitan Associates v. City of Milwaukee

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2011 WI 20 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP524 Metropolitan Associates , a Wisconsin Limited Partnership, On behalf of itself and all other persons and entities who filed an objection to the 2008 assessment of any parcel of real or personal property in the City of Milwaukee, Plaintiff-Respondent-Petitioner, v. City of Milwaukee , a Wisconsin Municipal Corporation, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 321 Wis. 2d 632, 774 N.W.2d 821 (Ct. App. 2009 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 25, 2011 October 7, 2010 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Jean W. DiMotto JUSTICES: CONCURRED: DISSENTED: ABRAHAMSON, C.J., BRADLEY and CROOKS, JJ. dissent (Opinion filed). NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner there were briefs by Alan Marcuvitz, Robert L. Gordon, Andrea H. Roschke and Michael Best & Friedrich, LLP, Milwaukee, and oral argument by Robert L. Gordon. For the defendant-appellant there were briefs by Grant F. Langley, city attorney and Vincent D. Moschella, deputy city attorney, Milwaukee, and oral argument by Vincent D. Moschella. There was an amicus brief by Maureen A. McGinnity, Foley & Lardner LLP, Milwaukee, John T. Barry, Quarles & Brady LLP, Milwaukee and Douglas A. Pessefall, Whyte Hirschboeck Dudek, S.C., Milwaukee, on behalf of State Bar of Wisconsin Taxation Section Board of Directors. 2 2011 WI 20 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP524 (L.C. No. 2008CV9866) STATE OF WISCONSIN : IN SUPREME COURT Metropolitan Associates, a Wisconsin Limited Partnership, on behalf of itself and all other persons and entities who filed an objection to the 2008 assessment of any parcel of real or personal property in the City of Milwaukee, FILED Plaintiff-Respondent-Petitioner, MAR 25, 2011 v. A. John Voelker Acting Clerk of Supreme Court City of Milwaukee, a Wisconsin Municipal Corporation, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed. ¶1 review MICHAEL J. GABLEMAN, J. This is a of a published decision of the court of appeals reversing the circuit court order Associates.1 granting summary judgment to Metropolitan Metropolitan Associates challenges the procedure taxpayers must follow in order to dispute municipal property tax 1 Metro. Assocs. v. City of Milwaukee, 2009 WI App 157, 321 Wis. 2d 632, 774 N.W.2d 821. No. assessments. After property assessment, tax a taxpayer the receives taxpayer his may or 2009AP524 her annual challenge that assessment before the Board of Review for the municipality where the taxed property is located.2 If the taxpayer remains unsatisfied after the Board of Review makes its determination, the taxpayer may seek review of that decision in the circuit court.3 ¶2 Prior to 2008, a taxpayer could choose between two types of review review or § 74.37. in statutory the circuit de novo court: review common pursuant law to certiorari Wis. Stat. Common law certiorari review is a limited review of the record made before the Board of Review, while de novo review is an entirely independent circuit court action in which the circuit court creates its own record and gives no deference to the Board of Review's determination. ¶3 In 2008, the legislature passed 2007 Wis. Act 86 ("Act 86") which allows municipalities to pass an ordinance opting out of de novo review. Taxpayers in these "opt out" municipalities are restricted to a new form of circuit court review referred to as "enhanced certiorari review."4 This enhanced certiorari review is broader in scope than traditional certiorari review 2 See Wis. Stat. § 70.47 (2007-08). All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 3 See Wis. Stat. §§ 70.47(13), 74.37. 4 Act of Mar. 13, 2008, 2007 Wis. Act § 86 (relating to objecting to property tax assessments). 2 No. but narrower in scope than de novo review. opt out municipalities to grant their 2009AP524 Act 86 also requires taxpayers additional rights during their initial Board of Review hearing. ¶4 In 2009, the circuit court for Milwaukee County, the Honorable Jean unconstitutionally DiMotto denied presiding, found that taxpayers residing in Act opt 86 out municipalities equal protection of the laws by depriving those taxpayers of access to de novo review without a rational basis for doing so. The court of appeals reversed. It held that the treatment taxpayers received in opt out municipalities under Act 86 was not significantly different than the treatment taxpayers received in all other municipalities. ¶5 We conclude that the treatment taxpayers in opt out municipalities receive under Act 86 is significantly different than the treatment all other taxpayers receive, and we conclude that this difference in treatment lacks a rational basis. Accordingly, we reverse the court of appeals and hold that all of Act 86 s modifications to Wis. Stat. §§ 70.47, 73.03, and 74.37 are unconstitutional. I. BACKGROUND ¶6 Property in Wisconsin is taxed assessment set forth in Wis. Stat. ch. 70. by a method of Assessors, who are either elected or appointed, must value all taxable real and personal property within their taxation district on an annual 3 No. basis.5 Wis. Property Stat. §§ 70.05, owners who disagree objection before the 70.10, with local an Board 70.29, 70.32(1)-(2). assessment of 2009AP524 may Review. file Wis. an Stat. §§ 70.07, 70.075, 70.47. ¶7 A Board of Review is a quasi-judicial body that hears evidence to adduce whether an assessor s valuation is correct. Nankin v. Vill. Of Shorewood, 2001 WI 92, ¶18, 245 Wis. 2d 86, 630 N.W.2d 141. Its membership typically consists citizens without legal or technical backgrounds. §§ 70.46(1), Hite Corp. 70.99(10)(a); v. Bd. of Nankin, Review of 245 of Wis. 2d 189, 575 N.W.2d 721 (Ct. App. 1997). lay Wis. Stat. Wis. 2d 86, Vill. of ¶31; Rite- Brown Deer, 216 After conducting a hearing, the Board of Review may adjust an assessment if it determines that the assessment is too high or too low. § 70.47(6), (9)(a). ¶8 methods We begin with an overview of obtaining judicial review of the of a two Board traditional of Review s decision available prior to the enactment of Act 86: certiorari review and de novo review. We then discuss how Wisconsin s process assessment for challenging decisions changed significantly in both 2001 and 2008 in 2001 it changed because of our Nankin decision, and in 2008 it changed because of Act 86. A. Certiorari Review and De Novo Review 5 "Taxation district" is defined as "a town, village or city in which general property taxes are levied and collected." Wis. Stat. § 70.045. 4 No. ¶9 2009AP524 Certiorari review existed prior to the enactment of Act 866 as a limited review in which the circuit court examined only the record made before the Board of Review. Wis. 2d 86, ¶20. Nankin, 245 In certiorari review, a circuit court may not take its own evidence nor conduct its own factual inquiry. Id. The circuit court applying certiorari review must uphold the Board of Review's decision unless: (1) the Board acted outside its jurisdiction, (2) the Board acted in violation of the law, (3) the Board's action was arbitrary, oppressive or unreasonable, representing its will rather than its judgment, or (4) the evidence was such that the Board could not reasonably make the determination in question. Id. If the circuit court determines that the Board of Review's assessment is so deficient that it meets one of these four tests, the court must remand the matter to the Board of Review for a reassessment. taxpayer seeking certiorari review receives Id. The scheduling preference in the circuit court and does not have to pay the tax before filing. ¶10 Wis. Stat. § 70.47(13). De novo review, as it existed prior to the enactment of Act 86,7 is a more substantial form of review than certiorari review. The circuit court applying de novo review may receive evidence regardless Review. Nankin, 245 Wis. 2d 86, ¶25. of the record made before the Board of While the circuit court conducting a de novo review gives no deference to the Board of 6 Wis. Stat. § 70.47(13) (1999-2000). 7 Wis. Stat. § 74.37 (1999-2000). 5 No. Review's decision, the underlying presumption of correctness. circuit court conducting assessment still 2009AP524 carries Id.; Wis. Stat. § 70.49(2). de novo review determines a If a that the Board of Review's assessment is incorrect, the circuit court may calculate the proper assessment without Board of Review for that purpose. remanding it to the Nankin, 245 Wis. 2d 86, ¶25. In contrast to certiorari review, the de novo action is not given scheduling preference in the taxpayer must pay the tax before filing. circuit court and the Wis. Stat. § 74.37(2). B. 2001: Nankin Invalidates Population-Based Thresholds on De Novo Actions ¶11 Prior to 2001, most property owners could obtain judicial review of a Board of Review's decision by filing an action in the circuit court seeking either certiorari review under Wis. Stat. § 70.47(13) or de novo review under Wis. Stat. § 74.37.8 with Prior to 2001, however, property owners in counties populations of 500,000 or 8 more could file for only A third option, not relevant to the present case, is available for obtaining judicial review of a Board of Review s decision. An objecting taxpayer may file a written complaint with the Wisconsin Department of Revenue pursuant to Wis. Stat. § 70.85. This method is only available in limited circumstances. § 70.85(1). Review of the Department of Revenue's decision may only proceed through common law certiorari. § 70.85(4)(c); See Hanlon v. Town of Milton, 2000 WI 61, ¶23, 235 Wis. 2d 597, 612 N.W.2d 44. In Nankin we held that "[o]ur discussion of certiorari review of the board of review's decision applies equally for certiorari review of the Department of Revenue's decision." Nankin, 245 Wis. 2d 86, ¶20 n.8. 6 No. 2009AP524 certiorari review and did not have access to de novo review.9 Wis. Stat. § 74.37(6). ¶12 In 2001, we considered in Nankin v. Village of Shorewood whether preventing taxpayers' access to de novo review solely based on the population of the county in which the property was located unconstitutionally denied those taxpayers equal protection of the laws.10 Nankin, 245 Wis. 2d 86, ¶11. applied a three-step analysis to guide our holding. determined that the population-based threshold We First, we created a "distinct classification of citizens" those owning property in Milwaukee County. Id., ¶13. Second, we determined that this population-based threshold caused taxpayers in Milwaukee County to be treated in a "significantly different" manner from all other taxpayers because the de novo review available in all other counties provided greater protections than the certiorari review available in Milwaukee County. Id., ¶14. Third, we determined that no rational basis existed for limiting access to de novo review solely because of the population of the county where the taxed property was located. Id., ¶15. As a result, we held that the population-based threshold violated the rights provided to taxpayers under the equal protection clause. ¶46. Id., The immediate effect of this holding was that both de novo 9 Only Milwaukee County exceeded a population of 500,000 at that time. 10 Because we interpret the United States Constitution's Fourteenth Amendment Equal Protection Clause and the Wisconsin Constitution's Equal Protection Clause in the same manner, we decided Nankin under both. Nankin, 245 Wis. 2d 86, ¶11 n.5. 7 No. 2009AP524 and certiorari review became available to all property owners in Wisconsin regardless of the population of the county in which their property was located. C. 2008 to Present: Legislature Allows Municipalities to Opt Out of De Novo Review ¶13 On March 13, 2008, seven years after our holding in Nankin, the Wisconsin Legislature passed Act 86. 86. 2007 Wis. Act. Act 86 allows municipalities to adopt an ordinance opting out of § 74.37 de novo review of Board of Review assessment decisions. ¶14 A municipality that passes an ordinance pursuant to Act 86 opting out of de novo review must give their taxpayers greater rights in their Board of Review proceedings than those taxpayers would municipalities. receive 2007 Wis. if they Act. 86 lived §§ 1-3, in 6-7. all other Further, taxpayers in the opt out municipality lose access to de novo review and must instead follow § 70.47(13) which provides for a new process we will refer to as "enhanced certiorari review." ¶15 These differences are further described in Part III of this opinion. D. Metropolitan Associates Challenges Act 86's De Novo Review Limits ¶16 The City of Milwaukee opted out of de novo review when its Common Council unanimously adopted an ordinance conforming 8 No. 2009AP524 with § 70.47(16)(c)11, which became law on April 30, 2008. July 15, lawsuit ruling 2008, Metropolitan against that Act Milwaukee 86's Associates seeking opt out filed a declaratory provision class relief violated On action and the a equal protection provisions of the Wisconsin and the United States Constitutions. ¶17 Wis. Const. art. I, § 1; U.S. Const. amend. XIV. The circuit court orally granted summary judgment to Metropolitan Associates on January 20, 2009, memorialized in its written order dated February 9, 2009. It followed the same three-step analysis of Metropolitan Associates' equal protection claim as we did in Nankin. First, the circuit court found that Act 86 created a distinct classification of citizens taxpayers residing in opt out municipalities. Second, it found that Act 86 treated this class significantly different than taxpayers in all other municipalities. no rational taxpayers who Third, the circuit court found that basis existed for own property in the opt different out treatment municipalities. of It concluded that Wis. Stat. § 74.37(4)(c) as amended by Act 86 and 11 Wis. Stat. § 70.47(16)(c) details the enhanced Board of Review procedure for first class cities that adopt ordinances for assessment review under Act 86. To be classified a first class city, a city must have a population of at least 150,000. Wis. Stat. § 62.05(1)(a). The City of Milwaukee, by adopting an ordinance in 2008 conforming with § 70.47(16)(c), limited the assessment review available to its taxpayers to enhanced Board of Review and enhanced certiorari procedures under Wis. Stat. § 70.47(13). 9 No. 2009AP524 § 74.37(4)(d) as created by Act 8612 violated equal protection, and enjoined their enforcement. ¶18 The court of appeals, also following the Nankin three- step analysis, reversed the circuit court. agreed with the municipalities citizens. circuit court constituted a that The court of appeals taxpayers opt out classification distinct in of However, in contrast to the circuit court, the court of appeals determined that Act 86's enhanced certiorari review supplied taxpayers functional equivalent Milwaukee, N.W.2d 821. no in 2009 WI opt of a App out court 157, municipalities trial." ¶11, with Metro. 321 "the Assocs. v. Wis. 2d 632, 774 The court of appeals therefore held that there was significantly different treatment of taxpayers novo review and enhanced certiorari review. between Id., ¶9. de Because of this holding, the court of appeals did not need to reach the third step of the analysis and, therefore, did not consider whether the legislature had a rational basis for distinguishing between taxpayers in opt out municipalities and taxpayers in all other municipalities. ¶19 Id., ¶10. Metropolitan Associates then petitioned this court for review, which we granted. on April 12, 2010. Associates' equal We heard oral arguments in this case The oral argument concerned Metropolitan protection challenge 12 under our three-step Wis. Stat. § 74.37(4)(c) and § 74.37(4)(d) prohibit taxpayers in municipalities that have enacted ordinances adopting enhanced Board of Review and enhanced certiorari procedures from challenging their assessments under de novo review. 10 No. analysis. 2009AP524 Following this oral argument, we ordered the parties to file supplemental briefs on four distinct issues: 1. Does either of the two procedures de novo actions under Wis. Stat. § 74.37 and enhanced certiorari actions under Wis. Stat. § 70.47(13) carry with it a right to a jury trial under Article I, Section V of the Wisconsin Constitution and Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177? 2. If the right to a jury trial exists under one set of procedures but not the other set of procedures, how does this affect the question of whether the procedures are significantly different? 3. What is the level of scrutiny applied to determine the constitutionality of the statute if there is a constitutional right to a jury trial? 4. Do the challenged portions of Act 86 survive that level of scrutiny? ¶20 The parties presented oral argument in regard to these four issues on October 7, 2010. II. STANDARD OF REVIEW ¶21 A challenge to the constitutionality of presents a question of law that we review de novo. Wis. 2d 86, ¶10. a statute Nankin, 245 A statute is presumed constitutional and this court must indulge in every presumption to sustain the law if at all possible. Id. The party challenging the statute must prove that the statute is unconstitutional beyond a reasonable doubt 11 No. and any doubt must constitutionality. be resolved in favor of the 2009AP524 statute's Id. III. DISCUSSION ¶22 The equal protection clause of the 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 . . . ." Const. art. I, § 1. equal protection We apply the same interpretation to the provisions States Constitutions. Wis. of the Wisconsin and the United Nankin, 245 Wis. 2d 86, ¶11; Tomczak v. Bailey, 218 Wis. 2d 245, 261, 578 N.W.2d 166 (1998). ¶23 Nankin sets forth the three-step analysis we apply in determining provisions whether of the Act 86 Wisconsin violates and United Nankin, 245 Wis. 2d 86, ¶¶11-15. whether the legislature created citizens when it passed Act 86. the States First, a equal distinct Id., ¶13. we protection Constitutions. must determine classification of Second, if it did, we must determine whether Act 86 treats this class significantly different from all others similarly situated. Id., ¶14. If this question is also answered in the affirmative, we must reach the third determination: whether a rational basis exists for the significantly different treatment. A. ¶24 Id., ¶15. Act 86 Creates a Distinct Class of Citizens The parties agree that Act 86 created a distinct class of citizens. We are not bound by this agreement. However, we have conducted our own review, and after doing so, hold that Act 86 did create a distinct class of citizens: taxpayers living in 12 No. opt out municipalities. 2009AP524 Therefore, we turn our attention next to the second step in the Nankin analysis whether Act 86 treats taxpayers in opt out municipalities significantly different than all other taxpayers. B. Act 86 Treats Taxpayers Living in Opt Out Municipalities Significantly Different Than All Other Taxpayers ¶25 Act 86 requires taxpayers in opt out municipalities to follow a different procedure in order to challenge their property tax assessments than the procedure taxpayers in all other municipalities must follow. discuss Act 86's different In this section, we first treatment at the Board of Review stage. Second, we discuss Act 86's different treatment at the circuit court review stage. Third, we explain why these differences cause taxpayers in opt out municipalities to follow a significantly different process to challenge their assessments than taxpayers in all other municipalities. Fourth, we discuss whether a jury trial right exists in de novo review actions. 1. Assessment Challenges at the Board of Review Stage ¶26 Act 86 grants taxpayers living in opt out municipalities three rights at the Board of Review stage that taxpayers in all other municipalities do not have: a more detailed notice of a changed assessment, the right to additional time to prepare for their Board of Review hearing date, and comparatively broader discovery rights. See Wis. Stat. § 70.47(7)(c), (8)(d), (8)(j). ¶27 The first of these rights relates to the notice of a changed assessment that must be sent to an affected taxpayer. 13 No. 2009AP524 Assessors in all municipalities must send notices of changed assessments to each taxpayer at least fifteen days before the Board of Review's annual meeting.13 Wis. Stat. § 70.365. In opt out municipalities, this notice must inform the taxpayer of the last day on which he or she may file an objection. § 70.47(7)(c), (16)(c). Wis. Stat. Opt out municipalities must also post on their websites the last day objections to assessments may be made. Id. ¶28 in The second of these rights is the right of taxpayers opt out municipalities to Board of Review hearing date. a sixty-day extension of their If a taxpayer in any municipality objects to their assessment, the taxpayer must give written or oral notice of an intent to file an objection to the board's clerk at least forty-eight hours scheduled meeting of the year.14 before the board's first Wis. Stat. § 70.47(7)(a). The taxpayer must then file a written objection within the first two hours of the Board of Review's first scheduled meeting of the year, unless extraordinary circumstances are shown. Id. During its first meeting, the Board of Review schedules hearings for 13 Boards of review must meet annually during the thirty-day period beginning on the second Monday in May. Wis. Stat. § 70.47(1). 14 Unless good cause or extraordinary circumstances are shown. Wis. Stat. § 70.47(7)(a). In first class cities, the notice of an intent to object must be written and must be filed by the third Monday in May. Wis. Stat. § 70.47(16)(a). 14 No. each written objection § 70.47(3)(a). The it Board received.15 has of Review must 2009AP524 Wis. then Stat. notify each objecting taxpayer of the time of their hearing at least fortyeight hours in advance of that meeting. § 70.47(3)(ah). In contrast, in opt out municipalities, the Board of Review must grant a sixty-day extension of the hearing date once a taxpayer requests the This extension and extension, available pays to a $100 only fee. § 70.47(7)(c). taxpayers in opt out municipalities, may be lengthened by the Board of Review if the taxpayer shows good cause. ¶29 Id. The third of these rights relates to broader discovery rights available to taxpayers in opt out municipalities during Board of Review proceedings. opt out municipality If the objecting taxpayer in an receives a sixty-day extension, the assessor and the taxpayer must exchange all reports, documents, and exhibits they will present at the Board of Review hearing no less than ten § 70.47(7)(c), days 16(c). before Both the the hearing. assessor and Wis. the Stat. objecting taxpayer in an opt out municipality can compel the attendance of witnesses at the Board of Review hearing. § 70.47(8)(d). In addition, taxpayers in opt out municipalities may compel the 15 The Board of Review may hear written objections at its first meeting if the board gave notice of the hearing to the property owner and the assessor at least forty-eight hours prior to the beginning of the scheduled meeting or if both the property owner and the assessor waive the forty-eight hour notice requirement. Wis. Stat. § 70.47(3)(a). 15 No. 2009AP524 attendance of witnesses for depositions after showing good cause to the Board of Review. Id. 2. Assessment Challenges at the Circuit Court Stage ¶30 their While Act 86 requires opt out municipalities to grant taxpayers additional rights during Board of Review proceedings, Act 86 limits both the type and scope of circuit court review these taxpayers may seek. Act 86 limits taxpayers in opt out municipalities to circuit court review through the enhanced certiorari § 70.47(13). procedure set forth in Wis. Stat. In contrast, taxpayers in all other municipalities have a right to select from either traditional certiorari review See Wis. Stat. §§ 70.47(13), 74.37. or de novo review. ¶31 The enhanced certiorari review available to taxpayers in opt out municipalities is narrower in scope than the de novo review available to all other taxpayers. Under enhanced certiorari review, the circuit court must presume that the Board of Review's assessment is correct absent a "sufficient showing" that the assessment is incorrect. Wis. Stat. § 70.47(13). In opt out municipalities, it is the taxpayer's burden to rebut this presumption. If, in the course of an enhanced certiorari hearing, the taxpayer in an opt out municipality successfully rebuts the presumption that the Board of Review s assessment is correct, the available at court the may time consider of the (1) evidence hearing before that the was not Board, (2) evidence that the Board refused to consider, and (3) evidence that the court otherwise determines should order to correctly assess the property. 16 Id. be considered in A taxpayer in an No. 2009AP524 opt out municipality who seeks enhanced certiorari review is not required to pay the challenged tax prior to seeking such review, and the enhanced certiorari proceeding is given scheduling preference in the circuit court over other proceedings. Id. In addition, both Metropolitan Associates and Milwaukee agree that enhanced certiorari review does not carry with it a right to a jury trial.16 ¶32 In contrast, the de novo review available in all other municipalities requires that a circuit court make its determination without regard to the Board of Review's record or decision. Nankin, 245 Wis. 2d 86, ¶25. In de novo review, the circuit court must hear new evidence and, while the court must presume that the assessor's valuation is correct, the court does not presume that the decision of the Board of Review is correct. Id. Taxpayers traditional challenged who civil tax request discovery prior to de novo tools, filing review but their have they action. access to pay the must Further, in contrast to enhanced certiorari proceedings, their action is not given scheduling proceedings. preference over other circuit court Id., ¶29; Wis. Stat. §§ 74.37(4)(b), 70.47(13). In addition, the parties dispute whether de novo review includes a right to a jury trial. 3. Enhanced Certiorari and Enhanced Board of Review Procedures Available in Opt Out Municipalities Are Significantly Different From the De Novo Procedure Available in All Other Municipalities 16 See Part III.B.4. 17 No. ¶33 2009AP524 Having surveyed the differences between the assessment challenge procedure available to taxpayers in opt out municipalities and the assessment challenge procedure available to taxpayers whether in these all other differences municipalities, are court s decision in Nankin. 86 successfully and, therefore, addressed no significant we in next consider light of this The court of appeals held that Act Nankin's significantly equal protection different concerns treatment existed between taxpayers in opt out municipalities and taxpayers in all other municipalities. ¶34 We disagree. We first discuss the reasoning that led the Nankin court to hold that Milwaukee taxpayers experienced significantly different treatment. We then apply the reasoning from Nankin to the facts of the present case. a. Nankin Concludes that Significantly Different Treatment Exists When Some Citizens May "Fully Contest Their Case in a Court Trial" and Others May Not ¶35 In 2001, all taxpayers could first seek review of an assessment at their local Board of Review. In 2001, however, Milwaukee taxpayers could only challenge the Board of Review's decision through § 70.47(13) traditional (2000-01). In certiorari contrast, review. all other Wis. Stat. Wisconsin taxpayers could challenge a Board of Review's decision through either traditional certiorari review or § 74.37 de novo review. See Nankin, 245 Wis. 2d 86, ¶6. We held in Nankin that all taxpayers outside of Milwaukee could "fully contest their case in a court trial" through the de novo review process. 18 Id., ¶24. No. 2009AP524 We then compared the assessment review procedure available to Milwaukee taxpayers with de novo review available to all other taxpayers to determine whether Milwaukee taxpayers had access to a process which allowed them to "fully contest their case in a court trial." ¶36 The Nankin court pointed to four differences between de novo review and the Board of Review procedures provided to Milwaukee taxpayers to conclude that the two procedures were significantly different. First, de novo review allows taxpayers to present their case in a forum that is conducted according to the rules of evidence and discovery. Id., ¶29. Board of Review hearings, by contrast, follow more informal rules that "may lead to an incomplete or inadequate record." Id. Second, de novo review permits property owners to subpoena witnesses to testify at trial, while the Board of Review procedures in place prior to 2001 did not. Third, de novo review is conducted by a judge, while Board of Review proceedings are conducted by citizens who may not be "versed in the rules of evidence." Id., ¶31. Fourth, de novo review "typically afforded a greater amount of time to prepare [a] case at the circuit court level," while Board of Review hearings afford less time to prepare a case. Id., ¶32. ¶37 Next, Nankin focused on three differences between de novo review and traditional certiorari review when it held that the traditional certiorari process was significantly different than a de novo procedure which allowed taxpayers to "fully contest their case in a court trial." First, de novo review 19 No. requires the circuit court to make its own 2009AP524 independent determinations, while traditional certiorari review is limited to a review of the record as it was compiled at the Board of Review stage. Second, de novo review requires giving presumptive weight only to the assessor's determination, while traditional certiorari review requires circuit court deference to the Board of Review's decision. And third, de novo review requires the circuit court to make its own assessment determination, while traditional certiorari review generally requires the circuit court to remand to the board if a reassessment is necessary. Nankin, 245 Wis. 2d 86, ¶25. ¶38 Since Milwaukee taxpayers could not "fully contest their case in a court trial" while all other taxpayers could do so through received the de novo significantly procedure, different we held that treatment. the classes Nankin, 245 Wis. 2d 86, ¶¶24, 27. b. Taxpayers in Opt Out Municipalities May Not Fully Contest Their Case in a Court Trial While All Other Taxpayers May Do So ¶39 Applying this court s reasoning in Nankin to the present case, we must examine the differences between Act 86's enhanced certiorari and Board of Review procedures, and contrast them with the de novo procedure available to all other taxpayers a process which allows taxpayers to "fully contest their case in a court trial." Nankin, 245 Wis. 2d 86, ¶24. First, we review the enhanced Board of Review rights provided to taxpayers under Act 86, and conclude they do taxpayers with the protections of a court trial. 20 not provide Second, we No. 2009AP524 review the enhanced certiorari procedure under Act 86, and again conclude they fail to provide taxpayers with the protections of a court trial. i. Enhanced Board of Review Rights ¶40 The enhanced Board of Review hearing rights available under Act 86 to taxpayers in opt out municipalities do not allow taxpayers in Board of Review proceedings to "fully contest their case in a court trial." Id. Even with the additional rights granted under Act 86, the Board of Review proceedings continue to favor municipalities over taxpayers, just as they did in Nankin. ¶41 For one, the sixty-day hearing date extension under Act 86 runs the risk of forcing complex property disputes into being heard much more quickly than such disputes would typically be heard in a de novo action. following the initial Further, additional extensions sixty-day extension would require a finding of "good cause" by a Board of Review composed not of legal experts, but instead composed of lay citizens. § 70.47(7)(c), (16)(c). This truncated Wis. Stat. discovery period heightens the risk we feared in Nankin of an "incomplete or inadequate record." ¶42 Nankin, 245 Wis. 2d 86, ¶29. Even setting aside these defects, the Board of Review process suffers other shortcomings when compared to a de novo action. For one, the Board of Review procedure under Act 86 allows the taxpayer access to the assessor's trial exhibits a mere ten days prior to their hearing. Wis. Stat. § 70.47(13). The appropriate time for the taxpayer to depose the assessor 21 No. 2009AP524 would be in this ten-day period after the taxpayer has received the assessor's report that will be introduced during the Board of Review hearing. Additionally, Act 86 requires that taxpayers in opt out municipalities show good cause in order to depose the assessor. § 70.47(8)(d). Therefore, in this ten-day pre- hearing period, the taxpayer would need to obtain a finding of "good cause" from a Board of Review composed of individuals untrained in the law, depose the assessor, review and analyze all of the assessor's trial exhibits, and prepare to argue their case. Further, during this ten-day pre-hearing period, the taxpayer would be attempting to discover other evidence that may refute the assessor s valuation. De novo trials, on the other hand, do not operate under such restrictive timelines and the discovery process is governed by a judge, not a lay citizen. Nankin, 245 Wis. 2d 86, ¶31. Review would develop remains unanswered. ¶43 an Nankin's concern that the Board of "incomplete or inadequate record" Id., ¶29. The enhanced Board of Review rights created by Act 86 fail to provide taxpayers the ability to "fully contest their case in a court trial." Accordingly, we hold that the enhanced Board of Review rights cause taxpayers in opt out municipalities to be treated significantly different than all other taxpayers. ii. Enhanced Certiorari Procedure ¶44 also The enhanced certiorari procedure created by Act 86 fails Specifically, to the offer the enhanced protections certiorari of a procedure court trial. significantly restricts the taxpayer's ability to bring additional evidence 22 No. 2009AP524 before the circuit court when compared to de novo review. In de novo review, the challenging taxpayer can seek the introduction of any admissible evidence in the circuit court. § 904.02. Wis. Stat. Under the enhanced certiorari procedure created by Act 86, however, the circuit court may allow the taxpayer to introduce additional evidence only if the taxpayer first rebuts the presumption that the board's valuation is correct. Stat. § 70.47(7)(c), (16)(a). If the taxpayer See Wis. successfully rebuts the presumption that the Board's valuation is correct, then, and only then, may the circuit court consider (1) evidence that was hearing, not (2) available evidence at that the time the of Board the of Board Review of Review refused to consider, or (3) evidence that the court otherwise determines should be assessment. ¶45 considered in order to determine the correct Wis. Stat. § 70.47(13). This court observed in Nankin that the de novo action is not simply another means of judicial review." Nankin, 245 Wis. 2d 86, ¶24. Instead, the de novo action is a completely independent of cause action in which the Board of Review's factual and legal determinations may be entirely disregarded by the circuit court. ¶46 Id., ¶¶24-25. Unlike de novo actions, the circuit court on enhanced certiorari review must first review the Board of Review's factual and legal findings. Only then does it decide whether the of decision's prerequisite to presumption the taxpayer 23 correctness introducing is rebutted a any independent No. evidence.17 Wis. Stat. § 70.47(13). 2009AP524 This enhanced certiorari procedure merely entails a court s review of a lower court s or an administrative body s factual or legal findings. Nankin, 245 Wis. 2d 86, ¶24. This is not comparable to a de novo action where taxpayers have access to a new "action according to state civil practice and procedure, including the right to a trial." Id. The taxpayer on de novo review need not first overcome any presumptions to evidence admissible" is introduce evidence. in de Rather, novo "[a]ll actions. relevant Wis. Stat. § 904.02. ¶47 The enhanced certiorari procedure created by Act 86 fails to provide taxpayers the ability to "fully contest their case in a court trial." Accordingly, we hold that the enhanced certiorari procedure created by Act 86 causes taxpayers in opt out municipalities to be treated significantly different than all other taxpayers. 4. Section 74.37 De Novo Review Does Not Contain a Jury Trial Right ¶48 contains Both parties concede that if a § 74.37 de novo action a jury trial right 17 and a § 70.47(13) enhanced Under Act 86, the circuit court may consider evidence that the court . . . determines should be considered in order to determine the correct assessment. Wis. Stat. § 70.47(13). It is true that this "catch-all" option provides an opportunity for the taxpayer to seek the introduction of new evidence. However, the plain language of the statute allows for such an opportunity only after the taxpayer overcomes the substantial burden of demonstrating the incorrectness of the Board of Review's decision and, even then, does so only at the discretion of the circuit court which "may" consider the new evidence. 24 No. 2009AP524 certiorari proceeding does not contain such a right, this would per se qualify as significantly different treatment.18 We agree that such a distinction between the assessment review processes would qualify as a significant difference. the § 74.37 de novo action contains a Therefore, whether jury trial right is relevant in determining whether the de novo action and enhanced certiorari proceeding are significantly different. ¶49 The parties disagree as to whether de novo actions brought pursuant right. to Wis. Stat. We hold they do not. § 74.37 contain a jury trial In Village Food & Liquor Mart, 216 Wis. 2d 189, ¶11, we held that: [A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848 and (2) the action was regarded at law in 1848. Id. Metropolitan Associates argues that the modern § 74.37 de novo excessive assessment claim is a counterpart to the common law claim for "money had and received" which existed in 1848. Milwaukee included argues only that illegal the claim assessment for money claims had and and not received excessive assessment claims. ¶50 We conclude that an action for money had and received in an excessive valuation case was not recognized at common law 18 The parties agree that enhanced certiorari proceedings do not contain a jury trial right. We also agree. These proceedings are directly correlated to the common law writ of certiorari which was not an action for which a jury would have been available at common law. See Milwaukee Iron Co. v. Schubel, 29 Wis. 2d 444, 450-52 (1872). 25 No. 2009AP524 in 1848 and therefore only reach the first step in the Village Food analysis. test, we In applying the first step of the Village Food look to whether a § 74.37 de novo action "is essentially the counterpart of a cause of action existing in 1848 [and whether] similar purpose." the two causes of action . . . share a Harvot v. Solo Cup Co., 2009 WI 85, ¶72, 320 Wis. 2d 1, 768 N.W.2d 176. ¶51 First, we discuss whether Matheson v. Town of Mazomanie, 20 Wis. 201 (*191)(1865), or A.H. Strange Co. v. City of Merrill, 134 Wis. 514, 115 N.W.2d 115 (1908), points to a common law counterpart assessment action. challenge process to the de novo excessive Second, we discuss whether the assessment which existed contained a jury trial right. assessment § 74.37 challenge process in pre-statehood Wisconsin Third, we discuss whether the which existed immediately after statehood contained a jury trial right. a. No Common Law Action Existed in 1848 for Excessive Assessment Claims ¶52 Metropolitan actions for common law. Matheson v. an Associates excessive Metropolitan Town of cites assessment 20 case existed Associates Mazomanie, no in showing our erroneously Wis. 201 that pre-1848 relies on (*191)(1865) to support its argument that the common law action for money had and received included excessive assessment claims. In that case, the taxpayer ( Matheson ) self-reported and verified by oath the value of his personal property to be $1,000. 201 (*191). Id. at The assessor then added $5,000 to the value of 26 No. 2009AP524 Matheson's nonenumerated articles of personal property, for a total assessed value of $6,000. Id. We held that after Matheson had verified the value of his nonenumerated property by oath, neither the assessor, town clerk, or board of supervisors had the statutory power to increase the valuation. Accordingly, we concluded that the $5,000 addition was "unlawful and void" against Matheson. ¶53 "unlawful Id. at 204 (*194). Matheson is not an excessive assessment case. and void" language from Matheson shows The that the assessor did not merely overvalue property which the assessor had the lawful power to tax. This "unlawful and void" language instead reveals that the assessor did not have the power to assess the nonenumerated articles against Matheson. A clear counterpart to the common law Matheson claim would be a modern Wis. Stat. § 74.35 action to recover an "unlawful tax" and not a Wis. Stat. excessive § 74.37 assessment excessive cases under assessment § 74.37 action. do not Modern concern the power of the assessor to assess a certain property (i.e. the "lawfulness" of the tax). Rather, modern excessive assessment cases concern the proper application of assessment principles to property which can lawfully be subject to tax. ¶54 Metropolitan Associates further relies on our holding in A.H. Strange Co. v. City of Merrill, 134 Wis. 514, 518, 115 N.W. 115 (1908), that: Independently of the statute, if one pays a tax involuntarily, . . . he may sue to recover back the tax. It will be observed that an action based on involuntary payment of an illegal tax was held to be 27 No. 2009AP524 maintainable in this state before the passage of the law of 1870 . . . . Metropolitan Associates involuntarily paid, argues they that fall described in A.H. Strange. since under the property common taxes law are action Metropolitan Associates, however, ignores the language in A.H. Strange which expressly limits the common law action described therein to one involving an "illegal tax." Id. Again, this implicates a § 74.35 unlawful tax claim and not the § 74.37 excessive assessment claim. Accordingly, case law evidences no common law action existing in 1848 for an excessive assessment claim. b. The Procedure for Challenging Assessments Which Existed in Wisconsin Before 1848 Did Not Contain a Jury Trial Right ¶55 The statutory processes for assessment challenges which existed in the decade prior to statehood show that in this period, excessive assessment cases were not tried to juries.19 The 1839 Statutes of the Territory of Wisconsin required that: [S]hould any person feel aggrieved by the value which may be affixed upon his land by the assessor, or by the value at which the appraisers estimated his town lot, he may produce evidence before the board of commissioners, and if they think the value too high or too low, they shall order the clerk to alter it accordingly. 19 This 1838-48 period is critical to our analysis because the Village Food test requires that we examine whether the cause of action created by Wis. Stat. § 74.37 "was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848." Village Food, 216 Wis. 2d 189, ¶11. 28 No. Wis. Terr. Stat. p. 45 § 5 (1839). 2009AP524 As this statute illustrates, prior to statehood, county commissioners served as the precursor to the modern Board of Review. This review conducted by county commissioners was not a jury trial but rather is more comparable to an administrative hearing before a public agency. ¶56 The 1839 statutes also provided a mechanism for review of the county board of commissioners' decision in the district court: From all the decisions of the several boards of commissioner[s] there shall be allowed an appeal to the district court, by any person or persons aggrieved, and the person or persons appealing shall take the same within thirty days after such decision, by giving bond with security, to the acceptance of the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of costs, if the same shall be adjudged by the said court to be paid by such appellant; and the clerk shall record such appeal, with the cases pending in the district court, within twenty days after the taking of such appeal. Wis. Terr. Stat. p. 106 § 18 (1839). The fact that such an appeal would be heard by a judge and not a jury provides support for our conclusion that excessive assessment has trial. c. the procedure never included for the prosecuting right to a an jury Wis. Terr. Stat. p. 196 § 6 (1839). The Procedure for Challenging Assessments Which Existed Immediately After Statehood Did Not Contain a Jury Trial Right ¶57 During the decade after statehood, from 1848 until 1858, Wisconsin allowed property owners to make an affidavit as to the value of their property. (1849). The assessor was Wis. Stat. tit. 5, ch. 15, § 26 required 29 to accept the value No. determined by the taxpayer's affidavit. Id. affidavit reason process, assessments the taxpayers taxpayers had no themselves 2009AP524 Because of this challenge the valued to property. Simply put, there was no need for juries in such matters, which is likely why none were provided for by statute. ¶58 Because taxpayers had no right to try excessive assessment claims to juries either immediately before or after statehood, it history and § 74.37 de would the novo be Village incompatible test Food excessive with to assessment both hold claim Wisconsin's that the contained modern a jury trial right. ¶59 Although we find that neither an enhanced certiorari proceeding nor a de novo action contains a jury trial right, we nonetheless hold that Act 86 treats taxpayers in opt out municipalities significantly different from all other taxpayers. We must therefore, unlike the court of appeals, reach the third step of Metropolitan Associates' whether rational there is different treatment. C. a equal basis protection for this challenge significantly Nankin, 245 Wis. 2d 86, ¶15. No Rational Basis Exists for the Significantly Different Treatment of Taxpayers in Opt Out Municipalities ¶60 out Having concluded that Act 86 treats taxpayers in opt municipalities significantly 30 different from all other No. 2009AP524 taxpayers, we next consider whether this significantly different treatment has a rational basis.20 ¶61 A statute violates equal protection only when "the legislature has made an irrational or arbitrary classification, one that has no reasonable purpose or relationship to the facts or a proper state policy." Milwaukee Brewers v. Wisconsin Dep't of 130 Health (1986). & Soc. Servs., Any doubts must Wis. 2d 79, be resolved reasonableness of the classification. 99, 387 N.W.2d 254 in favor of the State v. Hezzie R., 219 Wis. 2d 848, 894, 580 N.W.2d 660 (1990). ¶62 "'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. inequality However, results "[t]he from the basic is not classification but 20 test whether whether Id. some there Usually, this court will uphold a statute under equal protection principles if we find that a rational basis supports the legislative classification. Aischer ex rel. LaBarge v. Wis. Patients Compensation Fund, 237 Wis. 2d 99, 127, 613 N.W.2d 849 (2000). We engage in strict scrutiny analysis only when a statute impinges on a "fundamental right" or creates a classification that "operates to the peculiar disadvantage of a suspect class." Castellani v. Bailey, 218 Wis. 2d 261, 261-62, 578 N.W.2d 166 (1998). In the present case, because no suspect class or fundamental interest is involved, we will sustain the classification if any rational basis exists to support it. Milwaukee Brewers v. Wisconsin Dep't of Health & Soc. Servs., 130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986). 31 No. exists a rational classification." basis to Milwaukee justify Brewers, the 130 inequality Wis. 2d at 2009AP524 of the 99. In determining whether a rational basis exists, we look first to determine whether the legislature articulated a rationale for its determination. such articulated Id. at 99-101. rationale, construct one. classification is the court s obligation to Id. at 101. ¶63 it If we cannot identify any The created by Act 86 is based on whether or not a municipality has enacted an ordinance opting out of de novo review. After reviewing Act 86's legislative history, we note that the legislature did not articulate any rationale for creating this distinct class of opt out taxpayers. Therefore, we are obligated to construct a rationale if at all possible. ¶64 Nankin, 245 Wis. 2d 86, ¶37. Under our case law, a statute must meet five criteria in order to have a rational basis: (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 not 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) The characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having 32 No. 2009AP524 regard to the public good, of substantially different legislation. Nankin, 245 Wis. 2d 86, ¶39 (citing Aicher, 2000 WI 98, ¶ 58, 237 Wis. 2d 99, 613 N.W.2d 849)(alterations in original). Under this test, Act 86 fails to satisfy the first, second, and fifth criteria. ¶65 To overcome the first prong of the rational basis test, Milwaukee must show that "substantial distinctions" exist between taxpayers living in opt out municipalities and taxpayers living in all other municipalities. ¶66 Milwaukee argues that the enhanced Board of Review rights and enhanced certiorari procedure given to taxpayers in opt out municipalities create substantial distinctions between the classes sufficient to make taxpayers in opt out municipalities "really different" from taxpayers in all other municipalities. Nankin, 245 Wis. 2d 86, ¶39. Metropolitan Associates argues that Milwaukee only cites distinctions in the treatment of the taxpayers and does not cite to any distinctions between the characteristics of the taxpayers in the two classes. ¶67 In Nankin we held that "[t]here 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 Nankin, 245 Wis. 2d 86, ¶41. may challenge their assessments." We also held that: 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 Amherst in Portage County with respect to challenging their property assessments. 33 No. 2009AP524 Id. ¶68 In this case to echo Nankin's holding we see nothing inherently different about taxpayers in opt out municipalities that would justify restricting the manner in which taxpayers located in those municipalities may challenge their assessments. See Id., ¶41. Taxpayers in opt out municipalities are no different from taxpayers in all other municipalities, except for the different rights available to taxpayers in opt out municipalities at the Board of Review and circuit court review stages. We see no reason why Act 86 allows opt out municipalities to deny their taxpayers the ability to "fully contest their case in a court trial," while taxpayers in all other municipalities may still fully contest their case in a de novo proceeding.21 ¶69 Id., ¶24. Milwaukee advances no characteristic of taxpayers in opt out counties that makes such taxpayers really different from all other taxpayers. Thus, it fails to establish the first prong of the rational basis test. ¶70 Under the second prong of the rational basis test, we examine whether the classification adopted is germane to the 21 Milwaukee advances two arguments in the present case that are necessarily inconsistent with each other. On the one hand, Milwaukee denies that Act 86 treats taxpayers in opt out municipalities significantly different than taxpayers in all other municipalities. On the other hand for the purposes of its rational basis argument Milwaukee argues that the differences in the treatment between these two classes constitute "substantial distinctions" which make opt out taxpayers "really different" from all other taxpayers. The illogic of this position is self-evident. 34 No. purpose of the law. Milwaukee 2009AP524 argues similarly to the arguments we found unpersuasive in Nankin that the purpose of Act 86 s opt out review is to promote early settlement, provide taxpayers access to a faster review, and provide taxpayers a cheaper review. See Nankin, 245 Wis. 2d 86, ¶37. Milwaukee argues that creating the class of opt out taxpayers is germane to these purposes. ¶71 Judicial We are not persuaded. efficiency is a concern share, irrespective of municipal location. 44. that all courts See id., ¶¶38, 43- It is irrational for the legislature to allow opt out municipalities to arbitrarily deprive their citizens of de novo review based on whatever criteria the municipality chooses to consider. Act 86 does not bind a municipality to first consider whether opting out of de novo review would be a more efficient process for that municipality and its taxpayers. A municipality following Act 86 may, for whatever reason it chooses whether aligned with the legislature s stated objectives or not opt out of de novo review. ¶72 Milwaukee argues that the assessment review under Act 86 is a "faster, more efficient, more cost-effective" procedure than the traditional Board of Review and circuit court review procedure. If this is true, there appears to be no reason why the legislature would not simply repeal the § 74.37 de novo review statute and instead require the Act 86 review procedure be followed in all municipalities. not do this. Instead, the However, the legislature did classification created by the legislature under Act 86 delegates the decision of whether to 35 No. 2009AP524 pass an ordinance adopting the assessment review procedure under Act 86 to each individual municipality in Wisconsin. The objectives of Act 86 argued by Milwaukee in the present case, which are essentially to create a more efficient assessment review procedure for municipalities, have no relation to the classification created by Act 86, which simply delegates the choice of whether to implement Act 86 s streamlined assessment review procedure to each individual municipality. To be germane to the purposes of Act 86, the classification created by Act 86 would need to, in some way, align objectives in enacting Act 86. to the legislature s Milwaukee fails to explain, and we are unable to discern, how the classification of opt out taxpayers is germane to the purposes of Act 86. Therefore, we conclude that Milwaukee fails to satisfy the second prong of the rational basis test. ¶73 Finally, under the fifth prong of the rational basis test, we "examine whether the characteristics of each class are so far different as to reasonably suggest the propriety, as to the public good, of substantially Nankin, 245 Wis. 2d 86, ¶43. presents no characteristic municipalities and different than the we are different legislation." Here, as noted above, Milwaukee of taxpayers unable characteristics residing to discern of all in opt one that other out is taxpayers. Since the characteristics of these taxpayers are identical, they cannot "reasonably suggest the propriety different legislation." . . . of substantially Thus, Milwaukee also fails to satisfy the fifth criteria of the rational basis test. 36 No. ¶74 2009AP524 In sum, Act 86 fails to satisfy the first, second, and fifth criteria of the rational basis test. We therefore hold that Act 86's irrational denial of de novo review to a distinct class of citizens violates the equal protection provisions of the Wisconsin and the United States Constitutions. D. Act 86's Severability ¶75 Because we have concluded that the provisions of Act 86 which allow municipalities to deny their citizens access to § 74.37 de novo review violate equal protection, we must now determine whether the unconstitutional provisions may be severed from Act 86's remaining provisions. ¶76 Wisconsin Stat. § 990.001(11) provides that "[i]f any provision of the statutes or of a session law is invalid . . . such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application." We have presumption is in favor of severability." long held that "the Nankin, ¶49 (quoting State v. Janssen, 219 Wis. 2d 362, ¶37, 580 N.W.2d 260 (1998)). "Unless enacted it is evident those that provisions the which legislature are would within not its have power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." ¶77 is Id. The legislature has expressed no intent in Act 86 that contrary to the general presumption of severability. Further, the remaining sections of Wis. Stat. §§ 70.47, 73.03, and 74.37 remain fully operative as a law when the modifications from Act 86 which create the enhanced Board of Review procedure 37 No. and the enhanced certiorari procedure are severed. 2009AP524 As a result, we hold that the provisions of Act 86 which create the enhanced Board of Review procedure and the enhanced certiorari procedure are severable. ¶78 The subsections circuit of municipalities § 74.37 from court severed that restrict seeking de novo only the taxpayers review.22 specific in opt The out statutes creating the enhanced Board of Review and enhanced certiorari procedures were not affected by the circuit court order. ¶79 As a result, under the circuit court's order, taxpayers in opt out municipalities would have access to three separate Review assessment procedure, review. review enhanced procedures: certiorari the enhanced procedure, Board and de of novo By contrast, under the circuit court's order, taxpayers in all other municipalities would have access to traditional certiorari review and de novo review. In enacting Act 86, the legislature clearly did not intend to create a situation where enhanced board of review and enhanced certiorari procedures would be available in a municipality where de novo review was also available. Therefore, we conclude that all of Act 86 s 22 The specific subsections of § 74.37 that were severed by the circuit court were § 74.37(4)(c) as amended by Act 86 and § 74.37(4)(d) as created by Act 86. 38 No. modifications to Wis. Stat. §§ 70.47, 73.03, and 2009AP524 74.37 are unconstitutional.23 ¶80 It is important to note that our holding today simply returns the Board of Review procedures in all counties to the procedures which existed before Act 86 was approved. It also returns the procedure for challenging Board of Review assessment determinations to the procedure which existed before Act 86 was approved allowing all taxpayers the choice between traditional certiorari review and de novo review. IV. CONCLUSION ¶81 We conclude that the treatment taxpayers in opt out municipalities receive under Act 86 it significantly different than the treatment all other taxpayers receive, and we conclude that this difference in treatment lacks a rational basis. Accordingly, we reverse the court of appeals and hold that all of Act 86 s modifications to Wis. Stat. §§ 70.47, 73.03, and 74.37 are unconstitutional. By the Court. The decision of the court of appeals is reversed. 23 One exception exists. Section 10 of Act 86 modifies the manner in which interest is calculated under § 74.37. This section applies to all taxpayers seeking de novo review and therefore is not implicated by our equal protection analysis. Further, it is evident the legislature would have enacted this interest rate provision independently of the provisions we are invalidating today. Therefore, we do not sever § 74.37(5) as modified by Section 10 of Act 86. 39 No. ¶82 SHIRLEY S. ABRAHAMSON, C.J. 2009AP524.ssa (dissenting). I agree with the unanimous decision of the court of appeals reversing the order of the circuit court and holding that 2007 Wis. Act 86 is constitutional. enacting 2007 effectively I agree with the court of appeals that in Wis. did, Act 86 address the the legislature equal sought protection to, and deficiencies identified in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141. ¶83 As a result of 2007 Wis. Act 86, a taxation district may determine the procedure a taxpayer may use to challenge an assessment. The taxation district may adhere to Wis. Stat. § 74.37(3)(d), allowing a taxpayer to pay the assessment and commence an action in circuit court to recover the amount of a claim not allowed. Stat. Or a taxation district may "opt in" to Wis. § 74.37(4)(c), (4)(d), allowing a taxpayer to get additional rights before the Board of Review and a broad right to be heard in court following an adverse decision by a Board of Review. ¶84 First, like the court of appeals, I conclude that the treatment of taxpayers in "opt-in" taxation districts under 2007 Wis. Act 86 is not significantly different from the treatment of taxpayers in § 74.37(3)(d). taxpayers in taxation districts operating under Wis. Stat. Second, I conclude that even if the treatment of the two different classes of municipalities is significantly different, a rational basis exists for enabling taxing districts to determine whether to enact an ordinance to "opt in" under 2007 Wis. Act 86. 1 Third, I conclude that the No. majority errs in its severability analysis. 2009AP524.ssa If sections 8 and 9 of 2007 Wis. Act 86 are unconstitutional, they may be severed from the remainder of 2007 Wis. Act 86. I ¶85 Like the court of appeals, I conclude that the treatment of taxpayers in opt-in taxation districts under 2007 Wis. Act 86 is not significantly different from the treatment of taxpayers in taxation § 74.37(3)(d).1 districts Accordingly, operating 2007 Wis. under Act Wis. 86 is Stat. not unconstitutional. ¶86 2007 Wis. Act 86 addressed the concerns this court elucidated in Nankin. ¶87 2007 Wis. Act 86 gives increased rights to the taxpayer before the Board of Review: ¢ Property owners can request a 60-day period to prepare for a hearing before the Board and may request additional extensions for good cause. ¢ The parties are required to simultaneously exchange all reports, documents, and exhibits that will be presented at the hearing at least 10 days prior to the Board hearing. ¢ The Board may, and upon request of the assessor or the taxpayer shall, compel the attendance of witnesses for the hearing. Further, the Board upon good cause may compel the attendance of witnesses for depositions. ¶88 the Moreover, 2007 Wis. Act 86 gives increased rights to taxpayer assessment. in judicial review of the Board of Review's The decision of the Board of Review is granted a 1 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted. 2 No. 2009AP524.ssa presumption of correctness, but "that presumption goes away if 'rebutted by a sufficient showing by the [taxpayer] that the valuation is incorrect. If the presumption is rebutted, the court shall determine the assessment without deference to the board of review and based on the record before the board of review, except that the court may consider evidence that was not available at the time of the hearing before the board[,] [or] that the board refused to consider, or that the court otherwise determines should be considered in order to determine the correct assessment.'"2 ¶89 As the court of appeals explains, the circuit court is given extensive leeway in judicial review under 2007 Wis. Act 86, consistent with a circuit court's powers to conduct trials.3 ¶90 A presumption plays a role in judicial review under 2007 Wis. Act 86 and also plays a role in judicial review under Wis. Stat. § 74.37(3)(d). The circuit court in a § 74.37(3)(d) action gives presumptive weight to the assessor's assessment. Therefore, under 2007 Wis. Act 86 or under § 74.37(3)(d), a taxpayer before the circuit court must overcome a presumption, either that the board's decision is presumptively correct, or that the assessor's assessment is presumptively correct. In situations when the board accepts the assessor's assessment as 2 Metro. Assocs. v. City of Milwaukee, 2009 WI App 157, ¶9, 321 Wis. 2d 632, 774 N.W.2d 821 (the court of appeals explains that this analysis comes directly from the statutes but that "[t]he bracketed comma does not appear in the amended Wis. Stat. § 70.47(16)(a); the bracketed "or" is in the amended § 70.47(16)(a) but is not in the amended § 70.47(13)"). 3 Id., ¶9. 3 No. 2009AP524.ssa its determination of the assessment value, the two presumptions are indistinguishable. ¶91 Even if the difference in the operation of these two presumptions under the two systems amounts to "some inequity," which I do not think it does, a "statutory classification [that] results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment."4 ¶92 I conclude that a taxpayer in an "opt in" taxation district is not treated significantly differently from a taxpayer who pays the tax and seeks relief from an excessive assessment under Wis. Stat. § 74.37(3)(d). Accordingly, I conclude there is no equal protection violation. II ¶93 In Nankin, this court was faced with a classification based on county population. with a classification In the instant case, we are faced based on an option given to taxation districts. ¶94 The challenged legislation in the present case, unlike the statute the court declared unconstitutional in Nankin, is uniformly applicable to all taxation districts. The classifications developed in the present statutory system are based on determine an a option granted comprehensive to tax all taxation assessment districts challenge to system applicable to the taxpayers in that district. 4 State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654 (1989). 4 No. ¶95 2009AP524.ssa This distinction leads me to the conclusion that even if I were to agree with the majority that taxpayers are treated substantially differently, the legislation granting a taxation district the option to establish this alternative procedure for tax assessment challenges is constitutional. A statute is presumed constitutional.5 ¶96 In the present case it is undisputed that rational basis is the appropriate level of scrutiny challenger has for the the equal burden protection of challenge.6 demonstrating that The the classification is arbitrary and irrational beyond a reasonable doubt.7 ¶97 The statute challenged in the instant case will be upheld against policy reason 5 an equal exists protection challenge for classification Nankin v. Village of Wis. 2d 86, 630 N.W.2d 141. the Shorewood, 2001 if WI a 92, plausible and the ¶10, 245 6 For a discussion of the strict and intermediate levels of scrutiny when a statute is challenged on equal protection grounds, see Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, ¶¶59-63, 284 Wis. 2d 573, 701 N.W.2d 440. 7 Ferdon, 284 Wis. 2d 573, ¶73. This oft-used language of "proof beyond a reasonable doubt" is more pertinent to an evidentiary burden of proof than to a burden imposed on a party on constitutionality, a question of law. The burden of proof language recognizes the deference due to the legislature. State v. Jadowski, 2004 WI 68, ¶10 n.7, 272 Wis. 2d 418, 680 N.W.2d 810; Davis v. Grover, 166 Wis. 2d 501, 564 n.13, 480 N.W.2d 460 (1992) (Abrahamson, J., dissenting); Guzman v. St. Francis Hosp., 2001 WI App 21, ¶4 n.3, 240 Wis. 2d 559, 623 N.W.2d 776. 5 No. 2009AP524.ssa classification is not arbitrary in relation to that reason.8 It will be held unconstitutional if it is shown to be "patently arbitrary" with "no rational relationship to a legitimate government interest."9 8 Ferdon, 284 Wis. 2d 573, ¶73; Maurin v. Hall, 2004 WI 100, ¶106, 274 Wis. 2d 28, 682 N.W.2d 866; Doering v. WEA Ins. Group, 193 Wis. 2d 118, 131, 532 N.W.2d 432 (1995) (citing Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 886, 517 N.W.2d 135 (1994)); see also Sambs v. City of Brookfield, 97 Wis. 2d 356, 370-72, 293 N.W.2d 504 (1980). 9 Maurin, 274 Wis. 2d 28, ¶106 (citations omitted). The court sometimes uses a five-part test in analyzing equal protection challenges. The five-part test is derived from cases involving a challenge to a law on the grounds that it is a special law. See, e.g., Johnson v. Milwaukee, 88 Wis. 383, 60 N.W. 270 (1894) (setting forth the first four factors in the five-part test in determining constitutionality based on the challenge that a law was a special law); Boyd v. City of Milwaukee, 92 Wis. 456, 66 N.W. 603 (1896) (challenge under constitutional prohibition of special laws); Risch v. Board of Trustees of Policeman's Pension Fund, 121 Wis. 44, 98 N.W. 954 (1904) (establishing the fifth criterion in deciding whether the challenged law was a general or special law); Brown v. Haney, 190 Wis. 285, 209 N.W. 591 (1926) (uniformity challenge based on classifications of school districts). In Ford Hopkins Co. v. Mayor & Common Council of City of Watertown, 226 Wis. 215, 276 N.W. 311 (1937), the court first applied the five-part test rooted in Johnson v. City of Milwaukee, 88 Wis. 383, to an equal protection challenge. 6 No. ¶98 2009AP524.ssa The legislature did not explicitly set out its purpose in enacting 2007 Wis. Act 86. I will therefore search for a purpose that will uphold the statute's constitutionality. ¶99 A legitimate purpose of this law is to increase the efficiency of the tax assessment challenge process for taxpayers and taxation districts. An additional purpose, as indicated by the legislative history, is to provide a system that will reduce the number of actions brought under § 74.37.10 ¶100 In Nankin, we determined that a classification based strictly on county population was not germane to the purpose of judicial assessment efficiency, challenges or faster and for taxpayers cheaper (and resolution taxation of districts). For early cases using the rational basis approach in equal protection challenges, see State v. Whitcom, 122 Wis. 110, 118, 99 N.W. 468 (1904) (equal protection "permits separation of [property or persons] into classes of property or persons similarly conditioned or situated, having characteristics legitimately distinguishing the members of one class from those of another in respects germane to some general and public purpose and object of the particular legislations."); Milwaukee Sales & Investment Co. v. Railroad Comm'n of Wis., 174 Wis. 458, 465, 183 N.W. 687 (1921) (equal protection action holding that "[t]he classification made by the act fails, in that it is not based on characteristics legitimately distinguishing the members of one class from those of the others in respects germane to the public purpose or object of this legislation . . . ."); In re Christoph, 205 Wis. 418, 421, 237 N.W. 134 (1931) ("[The] equality rule of the Constitution permits separation into classes if they have characteristics legitimately distinguishing the members of one class from another in respects germane to some public purpose."). 10 "We're trying to reduce the number of assessment appeals that go to Circuit Court by creating an optional Board of Review process that municipalities could choose to adopt." E-mail from Denise Solie of Rep. Mark Gottlieb's office to Joseph Kreye re: Drafting Request - Board of Review, drafting file for 2007 Wis. Act 68, Wisconsin Legislative Reference Bureau, Madison, Wis. 7 No. 2009AP524.ssa In large part this conclusion was based on the fact that those same purposes are similarly applicable to all taxpayers regardless of the population of the county in which the property is located. ¶101 Here, classification number. the is analysis not based is necessarily strictly on a different. county The population Rather, the classification is based on the choice of a taxation district. ¶102 Put simply, there is a legitimate government interest in efficiently municipalities handling a choice tax assessment between two challenges. comprehensive Giving procedures advances this purpose, because it allows each taxation district to determine which procedure is more efficient under its unique circumstances. factor is residential As pointed out by the circuit court, one unique the number properties and percentage located in the of commercial taxation and district. Apparently, more challenges can be expected regarding commercial properties. ¶103 While the purpose of 2007 Wis. Act 86 is not expressly stated, efficiency in resolving tax assessment challenges is seemingly the driving force (both for the taxation district and the taxpayer) in creating this new optional system. municipalities procedures with will the most option to efficiently determine resolve Providing which tax of two assessment challenges based on various local factors (like the number of residential and commercial properties) bears a rational relationship to the government interest in creating an efficient 8 No. system before the Board of Review and the 2009AP524.ssa courts for tax assessment challenges. ¶104 The majority opinion rebukes Milwaukee's argument that the procedures under 2007 Wis. Act 86 are "faster, more efficient, [and] more cost-effective" by suggesting that if that were the case the legislature could simply repeal § 74.37(3) and universally apply the procedure created by 2007 Wis. Act 86. Majority op., ¶72. ¶105 The legislature most certainly has the power to do so. However, although the procedure created in 2007 Wis. Act 86 may be faster, more efficient, and more cost-effective for Milwaukee, other taxation districts such as Green Bay, Richland Center, or the Village of Shorewood may come to a different conclusion based on assessment challenges. choice to provide the nature of the property and tax Therefore, the legislature made a policy taxation districts with an option of two alternative procedures as opposed to mandating one or the other procedure for all taxation districts. ¶106 Contrary to the majority's conclusions, I cannot conclude that the legislation is "arbitrary," because it leaves for the taxation district the choice of how a taxpayer should proceed 11 to challenge an assessment.11 Majority op., ¶¶71-72. 9 The state legislature No. 2009AP524.ssa provides options to local government in a number of areas.12 as with all policy decisions vested in the And representative branches of government, the recourse for taxpayers unhappy with the policy decisions of conclude their that representatives rests in the ballot box. ¶107 I conclude that districts the in the uniqueness Wisconsin legislature and could variety provide of ample rationally the taxation distinguishing characteristics that support providing this option to advance the purpose of establishing a more efficient system for tax assessment challenges. III ¶108 The circuit court declared unconstitutional only Wis. Stat. § 74.37(4)(c) and (4)(d) as amended and created by 2007 Wis. Act §§ 8 invalidates and the 9. entire In 2007 contrast, Wis. Act the 86 majority by opinion stating: "[T]he legislature clearly did not intend to create a situation where enhanced board of review and enhanced certiorari procedures would be available in a municipality where de novo review was also available." Majority op., ¶79. I disagree with the majority opinion. 12 These options run the gamut of issues that effect local governance, from the most fundamental, the organizational structure of local government, Wis. Stat. §§ 64.01 & 64.25, or the number of alders, Wis. Stat. § 64.39, to more specific issues that affect residents and businesses within a municipality. See, e.g., Wis. Stat. § 66.0615 (establishment of room tax); Wis. Stat. § 66.0405 (system for removal of rubbish). 10 No. ¶109 Severability is favored. Wis. Stat. 2009AP524.ssa § 990.001(11). The presumption is in favor of severability.13 ¶110 There seems to be no dispute in the present case that if the invalid part of 2007 Wis. Act 86 falls away, the remainder can be fully operative. ¶111 The question then becomes whether it is "evident that the Legislature would not have enacted those provisions which are within its power, independently of that Wis. Act which is not . . . ."14 ¶112 Nothing legislative in history the of text the of Act 2007 makes it 86 the that "evident" or the legislature intended that the Act not be severable. ¶113 For majority's the reasons declaration Wisconsin Constitution. set that 2007 forth, I cannot Wis. Act 86 join the violates the Further, I disagree with the majority's declaration that the provisions of 2007 Wis. Act 86 are not severable. ¶114 I Accordingly, I dissent. am authorized to state that Justice ANN WALSH BRADLEY and Justice N. PATRICK CROOKS join this dissent. 13 State v. Janssen, 219 Wis. 2d 362, 379, 580 N.W.2d 260 (1998). 14 Nankin, 245 Wis. 2d 86, ¶49 (quoted source omitted). 11 No. 1 2009AP524.ssa

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