Milewski v. Town of Dover
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Applying Wis. Stat. 70.47(7)(aa) and Wis. Stat. 74.37(4)(a) in a manner that required submission to a tax assessor’s search as a precondition to challenging the revaluation of their property violated Plaintiffs’ due process rights.
Plaintiffs brought this case claiming that the assessment of their real property was excessive and that sections 70.47(7)(aa) and 74.37(4)(a), as applied, were unconstitutional because they conditioned their right to challenge the assessor’s valuation of the property on submission to a search of the interior of their home. The circuit court granted summary judgment for the Town. The court of appeals affirmed. The Supreme Court reversed, holding that sections 70.47(7)(aa) and 73.37(4)(a) were unconstitutionally applied to Plaintiffs.
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2017 WI 79 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP1523 Vincent Milewski and Morganne MacDonald, Plaintiffs-Appellants-Petitioners, v. Town of Dover, Board of Review for the Town of Dover and Gardiner Appraisal Service, LLC as Assessor for the Town of Dover, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis. 2d 262, 881 N.W.2d 359 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 7, 2017 January 19, 2017 Circuit Racine Phillip A. Koss ROGGENSACK, C.J. concurs (opinion filed). ZIEGLER, J. concurs, joined by GABLEMAN, J. (opinion filed). ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs filed by Richard M. Esenberg, Brian W. McGrath, Thomas C. Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee, and oral argument by Richard M. Esenberg. For the defendants-respondents Town of Dover and Board of Review for the Town of Dover, there was a brief filed by Dustin T. Woehl, Jason P. Gehring, and Kasdorf Lewis & Swietlik, SC, Milwaukee, and oral argument by Jason P. Gehring. For the defendant-respondent Gardiner Appraisal Service, LLC, there was a brief filed by Mitchell R. Olson and Axley Brynelson, LLP, Madison, and oral argument by Timothy M. Barber. An amicus curiae brief was filed on behalf of Institute for Justice by Lee U. McGrath and Meagan A. Forbes and Institute for Justice, Minneapolis. An amicus curiae brief was filed on behalf of Wisconsin REALTORS® Association by Thomas REALTORS® Association, Madison. 2 D. Larson and Wisconsin 2017 WI 79 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP1523 (L.C. No. 2014CV1482) STATE OF WISCONSIN : IN SUPREME COURT Vincent Milewski and Morganne MacDonald FILED Plaintiffs-Appellants-Petitioners, v. JUL 7, 2017 Town of Dover, Board of Review for the Town of Dover, and Gardiner Appraisal Service, LLC, As Assessor for the Town of Dover, Diane M. Fremgen Clerk of Supreme Court Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 DANIEL KELLY, J. Vincent Milewski and Morganne MacDonald (collectively, the "Milewskis") own a home in the Town of Dover. They want to challenge revaluation of their property. a tax assessor's recent But they also want to prevent the tax assessor from inspecting the interior of their home as a part of that process. The Town says our statutes require them No. 2015AP1523 to pick one or the other because they cannot do both.1 The Milewskis ask us whether the Town can put them to this choice.2 I. ¶2 that BACKGROUND The Milewskis bring us a discrete question, but we see the answer delicately provisions. will balanced play set of out tax against an statutes and intricate and constitutional Although the following background provides little more than a broad sketch of Wisconsin's system of real property taxation, it should be enough to place the Milewskis' question in an understandable context. A. Wisconsin's tax assessment scheme ¶3 Article VIII, section 1 of the Wisconsin Constitution, known as the Uniformity Clause, requires the uniform taxation of property,3 real and Wis. Stat. ch. 70 provides the general 1 We will collectively refer to all the respondents as the "Town," unless the context requires otherwise. 2 We review the unpublished decision of the court of appeals, Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op. (Wis. Ct. App. May 4, 2016), affirming the Racine County circuit court's order dismissing the Milewskis' claims (the Honorable Phillip A. Koss, presiding). 3 The Uniformity Clause provides that: The rule of taxation shall be uniform but the legislature may empower cities, villages or towns to collect and return taxes on real estate located therein by optional methods. Taxes shall be levied upon such property with such classifications as to forests and minerals including or separate or severed from the land, as the legislature shall prescribe. Taxation of agricultural land and undeveloped land, both as defined by law, need not be uniform with the taxation of each other nor with the taxation of other (continued) 2 No. procedure by which municipalities carry out this 2015AP1523 duty. In Wisconsin, "[r]eal property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under [Wis. Stat. § 73.03(2a)] from actual view or from the best information obtain . . . ." added). Wis. that the Stat. assessor can (2015-16)4 § 70.32(1) practicably (emphasis The Wisconsin Property Assessment Manual provides that "[i]n the case of real property, actual view requires a detailed viewing of the interior and exterior of all buildings and improvements and the recording of complete cost, age, use, and accounting treatments." Wis. Dep't of Revenue, Wisconsin Property Assessment Manual, 10-55 (2017). ¶4 If the property owner is dissatisfied with the assessor's valuation, he may bring his objection to the local real property. Taxation of merchants' stock-in-trade, manufactures' materials and finished products, and livestock need not be uniform with the taxation of real property and other personal property, but the taxation of all such merchants' stock-in-trade, manufacturers' materials and finished products and livestock shall be uniform, except that the legislature may provide that the value thereof shall be determined on an average basis. Taxes may also be imposed on incomes, privileges and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided. Wis. Const. art. VIII, § 1. 4 All subsequent references to the Wisconsin statutes are to the 2015-16 version unless otherwise indicated. 3 No. Wis. Stat. § 70.47(7)(a).5 board of review. 2015AP1523 He may do so, however, only after he has first allowed a tax assessor to view his property: No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. Wis. Stat. § 70.47(7)(aa). At the board of review hearing, the owner may present evidence in support of what he believes to be the proper valuation. Wis. Stat. § 70.47(8). Based on that evidence, the board of review decides whether to adjust the assessor's valuation. Wis. Stat. § 70.47(9)(a). If the owner disagrees with the board of review's conclusion, he may seek certiorari review by the circuit court. ¶5 court, initial Some owners, than rather property town's the determination accurate. Such an of however, board whether owner may Wis. Stat. § 70.47(13). of the file may want review, to assessor's a claim a circuit make valuation for still, challenging however, the outlined above: follow valuation the before pre-hearing procedures the of board is excessive assessment in the circuit court under Wis. Stat. § 74.37(2). must the review, He for as "No claim or action for an excessive assessment may be brought under this section unless the procedures for 5 Each town creates its own common council decides who sits typically include the mayor, town as the council should designate. 4 board of review. The town's on the board, but the members clerk, and such other officers See Wis. Stat. § 70.46(1). No. objecting to assessments complied with." under 2015AP1523 [§] 70.47 . . . have Wis. Stat. § 74.37(4)(a). been After completing these pre-hearing procedures, the owner asks the board of review for a hearing waiver. Wis. Stat. § 70.47(8m). Once granted, the owner may file his complaint in the circuit court. B. The Town of Dover Revalues the Milewskis' Property ¶6 In properties 2013, in its the Town of jurisdiction Dover and reassessed contracted with all the Gardiner Appraisal Service, LLC ("Gardiner") to assign a value to each such property. Gardiner's attention eventually turned to the Milewskis' home (the "Property"), which had a pre-2013 assessed value of $273,900, $277,761. "must and an estimated fair market value of Gardiner sent the Milewskis a notice stating that it view revaluation the interior program of which your is property in for progress" the and Town that wide "[a]n assessor will stop to view your property on Tues, Aug 20 at 6:10 pm." ¶7 into When the assessor arrived, Ms. MacDonald invited him their yard and told him he was welcome to view the Property's exterior; however, she further informed him he would not be allowed inside the home. The assessor declined Ms. MacDonald's invitation to view the Property's exterior and left without asking her any questions about the Property. ¶8 A few months later, the Milewskis received a certified letter from Gardiner stating that the assessor had not "viewed the interior of your buildings" and asked that they schedule a time for him to do so. The Milewskis sent the Town a letter 5 No. objecting to the requested interior inspection. 2015AP1523 Gardiner made no further attempt to view the interior of the Property and assessed it at a value of $307,100——a 12.12 percent increase from the previous assessment of $273,900.6 ¶9 After learning of the new assessment, Mr. Milewski attended open book sessions to review the assessed values of other properties in the subdivision.7 Based on his research, Mr. Milewski learned that of the 43 parcels in the subdivision, only four properties, including the Milewskis', did not have their interiors inspected during the 2013 assessment. properties, assessment. all The four other saw 39 an increase properties in that Of those four their did initial have interiors inspected saw their assessed value decrease. their After receiving the initial assessments, the owners of two of the four properties that had not had their interiors inspected allowed Gardiner to conduct an inspection of their home's interior and the assessments for those properties were then reduced. Thus, the only two properties in the 43-parcel subdivision that saw an increased assessment during the 2013 revaluation were those two properties where the owners did not consent to Gardiner's view of their home's interior. 6 The percentages we use throughout this opinion are those reflected in the amended complaint. 7 Once the assessor has recorded the assessed values of the town's property on the assessment rolls, the town clerk makes the rolls available for public inspection during what is known as "open book sessions." Wis. Stat. § 70.45. 6 No. 2015AP1523 C. The Milewskis Protest the Revaluation of the Property ¶10 The Milewskis filed an "Objection Form for Real Property Assessment" with the Town, and about two weeks later, they appeared at the November 25, 2013 Dover Board of Review ("BOR") hearing, where they intended to object to the assessment of their Property. However, because the BOR determined they had refused "a reasonable request by certified mail of the assessor to view [their] property," the BOR refused to hear their objection. ¶11 The Milewskis paid their 2013 property taxes and filed a Notice of Claim and Claim with the Town Clerk under Wis. Stat. § 74.37, alleging the Property assessment was excessive and that the Town had violated their Fourth Amendment rights. The Town denied the Milewskis' claim by taking no action on it within 90 days. See Wis. Stat. § 74.37(3)(a). The Milewskis later followed the same procedure for their 2014 property taxes, with the same result. ¶12 The Milewskis commenced this case with a complaint that included a claim for excessive assessment under Wis. Stat. § 74.37, and a claim that Wis. Stat. § 70.47(7)(aa) and Wis. Stat. § 74.37(4)(a), unconstitutional as because applied they to the conditioned Milewskis, their right are to challenge the assessor's valuation of the Property on submission to a search of their home. summary judgment. BOR's, and The parties filed cross-motions for The circuit court granted the Town's, the Gardiner's motions and 7 dismissed the Milewskis' No. claims. 2015AP1523 The court of appeals affirmed the circuit court, and we granted the Milewskis' petition for review. II. ¶13 Summary STANDARD OF REVIEW judgment is appropriate when there are no genuine disputes as to any material facts and the moving party is entitled to judgment as a matter of law. § 802.08(2). See Wis. Stat. We review a grant of summary judgment de novo, applying the same methodology as the circuit court. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 Belding v. N.W.2d 373. While our review is independent from the circuit court and court of appeals, we benefit from their analyses. Gen. Cas. Ins. Co., 2014 WI 135, ¶16, 360 See Preisler v. Wis. 2d 129, 857 N.W.2d 136. ¶14 A facial challenge to a statute's constitutionality also presents a question of law that we review de novo. Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849. We presume statutes are constitutional; the party asserting the constitutional infirmity must establish its argument beyond a reasonable doubt. State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. ¶15 The Milewskis say they are not contesting the constitutionality of the statutes in question, only how they were applied to them. In such a challenge there is no presumption the statute has been applied in a constitutional manner. 797 In re Gwenevere T., 2011 WI 30, ¶48, 333 Wis. 2d 273, N.W.2d 854 statute was ("neither party constitutionally faces a presumption applied."). 8 We that assume the the No. 2015AP1523 constitutionality of the statutes, and require the challenger to prove the unconstitutional application of the statutes beyond a reasonable doubt. Soc'y Ins. V. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, N.W.2d 385; 786 In re Gwenevere T., 333 Wis. 2d 273, ¶47 (In an "as-applied" challenge, "the presumption that the statute is constitutional applies, just as it does in a facial challenge."). III. DISCUSSION ¶16 The Milewskis understand themselves to be on the horns of a dilemma. The Town told them they must either submit to a tax assessor's inspection of the interior of their home or lose the right to challenge the revaluation of their Property. The Milewskis due say the Town may not make them process rights with a search of their home. ransom their The Fourth and Fourteenth Amendments, they say, protect the sanctity of their home as well as their right to contest the Town's revaluation.8 Put to the choice between the two, the Milewskis opted not to allow the tax assessor's inspection. So the Board of Review refused to hear their challenge. ¶17 The Town sees no dilemma. Instead, it sees only a polite request to enter a home to perform the reasonable task of determining how much it is worth so that the Town may properly allocate the tax burden, as contemplated by our statutes and the 8 The Fourth Amendment applies to the states through the Fourteenth Amendment. See, e.g., State v. Kramer, 2009 WI 14, ¶18 & n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367 U.S. 643 (1961)). 9 No. Wisconsin Constitution. Stat. § 70.01. 2015AP1523 See Wis. Const. art. VIII, § 1; Wis. The Town readily admits the Milewskis may not challenge their assessment if they do not grant the inspection request. But it maintains that a tax assessor's "viewing" of the interior of the Milewskis' property is not a "search" within the meaning of the Fourth Amendment. Even if such a viewing constitutes a search, the Town says, it is either self-evidently reasonable, operation or by it the is exempted "compelling from the 'special' Fourth need Amendment's to look inside people's homes" to satisfy the constitutional requirement that taxation of all properties in the Town be uniform. In any event, the Town says, one of the alleged horns is missing, so there can be no dilemma. ¶18 The task before us is straightforward. determine whether the constitutionally-protected Milewskis' rights First, we must situation they affects asserted. So we the will examine whether there is a due-process right to contest a tax assessor's valuation of real property, and whether a tax assessor's nonconsensual, warrantless inspection of the interior of a home would be an unreasonable search. Second, if this situation really does implicate two constitutionally-protected rights, we will inquire into whether the exercise of one can be conditioned on surrender of the other. And finally, if this conditioning determine is impermissible, we must whether it results from an inexorable statutory command, or is instead the result of how the Town applied the statutes to the Milewskis. 10 No. A. 2015AP1523 Rights Claimed by the Milewskis 1. Due Process ¶19 The Milewskis were unable to challenge the revaluation of their Property before the Board of Review because the Town said Wis. Stat. § 70.47(7)(aa) rebuffs all those who do not first submit to a tax assessor's inspection of the interior of their homes. And they found the courthouse doors barred because Wis. Stat. § 74.37(4)(a) requires them to follow the procedural requirements of § 70.47, including the interior home inspection, before filing an excessive assessment claim. So their taxes have increased, but without any corresponding opportunity for administrative or judicial review of the added burden. ¶20 The Milewskis say the Town may not impose a tax that is not ultimately subject to judicial review without violating their due-process rights. A due-process challenge requires the complainant to establish two components. First, she must prove she right. has been deprived Wis. 2d 99, ¶80. of a recognized Aicher, 237 And second, she must prove that she has not been afforded process commensurate with the deprivation. Id. The may focus of such claims is not on whether the State infringe the right in question, but whether it has engaged the proper procedure in doing so. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 11 125 (1990). This No. constitutional guarantee protects an individual erroneous exercise of the State's authority. process rules mistaken or property." are meant unjustified to protect 2015AP1523 from "Procedural due persons . . . from deprivation of life, the liberty, Carey v. Piphus, 435 U.S. 247, 259 (1978). rules 'minimize the or "Such substantively unfair or mistaken deprivations of' life, liberty, or property by enabling persons to contest the basis upon which protected interests." ¶21 The a State proposes to deprive them of Id. at 259–60. United States Constitution specifically extends the guarantee of due process to the deprivation of property: "No state shall . . . deprive any person of life, liberty, or property, amend. without XIV, due § 1. process Our of law . . . ." U.S. Const. Wisconsin constitution provides that "[a]ll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." U.S. Wis. Const. art. 1, § 1. and Wisconsin Although the text of the constitutional provisions differ, "provide identical procedural due process protections." Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, they Cty. of 393, 588 N.W.2d 236 (1999). ¶22 property: For constitutional purposes, a tax is a deprivation of "[E]xaction property . . . ." of a tax McKesson constitutes Corp. v. a Div. deprivation of of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 12 No. U.S. 18, 36 (1990). provide procedural 2015AP1523 Consequently, a state imposing a tax "must safeguards against unlawful exactions order to satisfy the commands of the Due Process Clause." ¶23 in Id. We know the nature of these safeguards well: "The elements of procedural due process are notice and an opportunity to be heard, or to defend or respond, in an orderly proceeding, adapted to the nature of the case in accord with established rules." State v. Thompson, 2012 WI 90, ¶46, 342 Wis. 2d 674, 818 N.W.2d 904 (quoting 16C C.J.S. Constitutional Law § 1444, at 188 (2005)); see also Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565 N.W.2d 521 (1997) (Due Process "entitles the individual claim."). The meaningful." overruled U.S. 343 to a review Bounds in fair part (1996). on opportunity must v. be Smith, other Whether present "adequate, 430 grounds the to U.S. by process is or effective, 817, Lewis his 822 v. her and (1977), Casey, pre-deprivation 518 or post, it must certainly occur: [W]e have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, . . . [but] it is well established that a State need not provide predeprivation process for the exaction of taxes. McKesson Corp., 496 U.S. at 37 (internal citations and marks omitted). ¶24 The deprivation process by Milewskis of have been property——but which to they challenge it. subjected have So, been to a tax——a forbidden absent an any adequate explanation for how this came to pass, they have been denied 13 No. their Fourteenth Amendment due-process rights.9 there 9 has been no violation because the 2015AP1523 The Town says Milewskis made the The dissent says one must keep "two realities firmly in mind": ¶126 One. The Town's assessor did not enter interior of the Milewskis' home. No search of Milewskis' home occurred. the the * * * ¶128 Two, the Milewskis have received full due process hearings in three courts——in the circuit court, in the court of appeals, and in this court. Furthermore, the Milewskis retained and exercised rights under the statutes to a hearing in which they challenged the assessment on specified grounds. Dissent, ¶¶125-26, 128. The first of these "realities" is important only if the second is true. It is not. The Board of Review, relying on Wis. Stat. § 70.47(7)(aa), denied the Milewskis' request to appear and present their challenge to the reassessment because they had refused the home inspection. The circuit court did not address the assessment because it concluded there was no constitutional violation in requiring the Milewskis to allow a home inspection as a precondition to its challenge. The court of appeals reviewed and affirmed this determination. And we are addressing the constitutionality of the statutory scheme, not the assessment of the Milewskis' home. So at no time have the Milewskis been able to present their excessive assessment claim to any tribunal. Not even the Town attempted the dissent's contra-factual argument. Instead, it candidly acknowledged that the Milewskis lost the right to challenge their assessment by refusing the home inspection, stating, for example, that "the result of this refusal is that they [the Milewskis] would be unable to challenge the assessment." The dissent's position is not supported by the facts or the Town itself. (continued) 14 No. affirmative inspection decision of to their deny home. the tax Foreclosing assessor an 2015AP1523 an interior administrative or judicial review of the revaluation, they say, is the "legal, logical, and natural result" of that decision, for to do otherwise would be "inconsistent with well-established law on the property owner's burden of proof because the homeowner has the affirmative burden of proving that the fair market value is different than the assessor's determination being challenged." Thus, "[w]ithout comprises about putting 70% of the its interior value——into of their home——which evidence," the Town concludes, "the homeowners logically, and equitably, cannot meet their burden of proving the fair market value is different from what the assessor determines." ¶25 This argument conflates two important, but distinct, principles. The right to a hearing is not the same thing as the burden of proof one must satisfy by the end of that hearing. Nor do the concepts protect the same interests. The former ensures access to a neutral magistrate to resolve disputes and is constitutionally guaranteed. The latter is a prudential recognition that he who seeks to change the status quo must So the most that can be said of the dissent's argument is that the Milewskis have been able to litigate whether they should be allowed to litigate the new tax assessment. That, of course, is not the same thing as actually challenging the tax assessment, as even the Town admits. 15 No. 2015AP1523 overcome its inertia, and is subject to adjustment based on policy considerations.10 ¶26 We agree with the Town that the Milewskis must be prepared to offer evidence sufficient to overcome the assessor's conclusion if they hope to change the Property's valuation. A challenger must "in good faith present[] evidence to such board [of review] in support of such objections and [make] full disclosure before said board, under oath of all of that person's property liable to assessment in such district and the value thereof." Wis. Stat. § 70.47(7)(a). This obligation is significant because the assessor's valuation is presumptively correct. Wis. Stat. § 70.47(8)(i) ("The board shall presume that the assessor's valuation is correct. That presumption may be rebutted by a sufficient showing by the objector that the valuation is incorrect."); Wis. Stat. § 70.49(2) ("The value of all real 10 and personal property entered into the assessment As we noted in State v. Big John: The question of which party has the burden of proof on this issue is determined by the application of the five-factor analysis outlined in McCormick, Handbook of the Law of Evidence, § 337 at 787-89 (2d ed. 1972), and adopted by this court in State v. McFarren, 62 Wis.2d 492, 499-503, 215 N.W.2d 459 (1974). The five factors to be considered are: (1) the natural tendency to place the burden on the party desiring change; (2) special policy considerations such as those disfavoring certain defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities. State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988). 16 No. 2015AP1523 roll . . . in all actions and proceedings involving such values, [is] presumptive evidence that all such properties have been justly and equitably assessed in proper relationship to each other."). We express no opinion on whether the Milewskis will be able to carry their burden of proof upon the contest of the Property's value, but that has nothing to do with whether they have the right to hazard the attempt. The Milewskis may not be denied due process with respect to the revaluation of their Property.11 2. ¶27 Freedom From Unreasonable Searches We next determine whether a tax assessor's warrantless inspection of the interior of a home would be an unreasonable search. On this subject, the Fourth Amendment to the United States Constitution says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 11 The dissent is concerned we are restoring the Milewskis' due-process rights without penalizing them for exercising their Fourth Amendment rights. Dissent, ¶183 ("According to the lead opinion, a property owner can, without any adverse consequences, refuse an assessor an actual view of the real property and apparently can still contest the amount of the assessment.") First, the suggestion that someone should be penalized for exercising his constitutionally-protected rights is more than a little chilling. And second, we have not said the Milewskis will not suffer adverse consequences from refusing the home inspection. As this paragraph recognizes, their choice may have created substantial impediments to successfully challenging the Town's reassessment. However, the consequences are not a penalty for exercising their rights, but are instead the potential result of applying required evidentiary standards to their claim. 17 No. 2015AP1523 searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Article I, section Its Wisconsin counterpart, found in 11 of the substantively identical, and coextensively with United the Constitution,12 Wisconsin we normally States interpretation of the Fourth Amendment.13 interpret Supreme is it Court's See, e.g., State v. Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748). ¶28 of the The constitutionality of a tax assessor's inspection interior of a home turns on three questions. First, whether the inspection is a search at all within the meaning of the Fourth Amendment. a search) fits within Amendment's operation. Second, whether the inspection (if it is a recognized exception to the Fourth And third, if no recognized exception covers the inspection, whether it is nonetheless reasonable. 12 "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Wis. Const. art. I, § 11. 13 Our references to the Fourth Amendment throughout this opinion also encompass Article 1, sec. 11 of the Wisconsin Constitution unless otherwise noted. 18 No. a. ¶29 2015AP1523 Is an "Interior View" a "Search"? Whether a tax assessor's "viewing" has constitutional significance depends on what the term "search" meant at the time of the Fourth Amendment's adoption. Kyllo v. United States, 533 U.S. 27, 34 (2001) (The court must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted."). To obtain a baseline understanding of what manner of intrusion comprises a "search," the United States Supreme Court recently had reference to the English case of Entick v. Carrington.14 Jones, 565 U.S. 400, 404-05 (2012). described this case freedom'" that was statesman at considered to constitutional the be (Entick) as "undoubtedly time the the The Court had previously a "'monument familiar Constitution true law . . . ." See United States v. and Brower to was ultimate v. Cty. of every English American adopted, and expression of Inyo, of 489 U.S. 593, 596 (1989) (internal marks omitted) (quoting Boyd v. United States, 116 U.S. 616, 626 (1886) (overruled on other grounds). ¶30 In Entick, the Jones Court found a close connection between "searches" and the law of trespass. 405. Jones, 565 U.S. at There, Lord Camden admonished that "'[o]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a 14 95 Eng. Rep. 807 (C.P. 1765). 19 No. 2015AP1523 trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law.'" Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).15 With that principle in mind, the Jones Court had no difficulty concluding a search occurred when government agents attached a tracking device to an individual's automobile. Id. at 404-05. When "[t]he Government physically occupie[s] private property for the purpose of obtaining information[,]" the Court said, there is "no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Id. at 404; State v. Sobczak, 2013 WI 52, ¶12, 347 Wis. 2d 724, 833 N.W.2d 59 (same).16 ¶31 When the government proposes to enter a home to obtain information relevant to levying a tax, we have even more precise historical guidance at hand. "In order to ascertain the nature of by the proceedings constitution under intended the terms the fourth amendment 'unreasonable to searches the and seizures,' it is only necessary to recall the contemporary or 15 Trespass, of course, is not the only government intrusion that can cause a Fourth Amendment violation. United States v. Jones, 565 U.S. 400, 411 ("we do not make trespass the exclusive test" for identifying a Fourth Amendment violation). 16 "It has long been established that the Fourth Amendment places the greatest protection around the home, as it was drafted in part to codify 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" State v. Sobczak, 2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Payton v. New York, 445 U.S. 573, 601 (1980)). 20 No. 2015AP1523 then recent history of the controversies on the subject, both in this country and in England." Boyd, 116 U.S. at 624-25. One of those controversies, which still informs our view of the Fourth Amendment, was the practice of granting revenue agents general warrants to search homes for taxable items: "Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.'" Payton v. New York, 445 U.S. 573, 583 n.21 (1980) (quoting Stanford v. Texas, 379 U.S. 476, 481–82 (1965) (quoting Boyd, 116 U.S. at 616, 625)). ¶32 This history tells us that, at the time the Fourth Amendment was adopted, a "search" occurred when a government agent trespassed on raising information. private property in pursuit of revenue- Our statutes preserve the home's sanctity against revenue agents by making it clear that tax assessors trespass if they enter a home without consent. § 943.13(4m)(am)4. entering residences (no or trespass buildings 21 exemption within for See Wis. Stat. tax curtilage); assessors see also No. 2015AP1523 Wis. Stat. § 70.05(4m) ("A property owner may deny entry to an assessor if the owner has given prior notice to the assessor that the assessor may not enter property owner's permission."). Jones confirmed, if a tax the property without the So, as Entick observed, and assessor "'will tread neighbour's ground, he must justify it by law.'" upon his Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817). ¶33 This is not, however, how the Town views its proposed inspection of the Milewskis' home. It sees the Fourth Amendment primarily through a procedural lens in which the purpose for the government agent's presence in the home is less significant than the manner by which he came to be there. It says no search takes place under these circumstances because the assessor sends a letter that requesting provides to view "advance their home notice for to an homeowners when assessment," which "explains the purpose behind the assessment, the right to refuse the request advance and the notice[] consequences gives the of that homeowner refusal." ample "[T]he opportunity to question the legitimacy, nature, and scope of the assessment." The interior violations,'" view denying entry." not there and does "involve are no a "criminal 'true search for consequences for Instead, refusal "result[s] only in possible financial consequences that the homeowner is informed of before choosing" whether to allow the tax assessor entry to her home. These procedures, and their attendant limitations on a government agent's discretion, inform the Town's conclusion that 22 No. 2015AP1523 no search occurs when an assessor enters a home in search of something to tax. ¶34 The Town's argument, however, gets a little ahead of itself. The question at this stage of the analysis is whether the tax assessor would be performing a search within the meaning of the Fourth Amendment Milewskis' home. by viewing the interior of the Whether he gives advance notice of when the viewing will occur, or provides assurance that refusing him an audience will cause merely financial penalties, may or may not have something to say about the reasonableness of a search, but it says nothing about whether his "viewing" Fourth Amendment "search" category. query in occurs strictly when functional "[t]he declaring physically that a occupie[s] property for the purpose of obtaining information." 404. in the The Jones Court cast that terms, Government belongs search private 565 U.S. at The formalities surrounding the viewing do not define what the viewing actually is. ¶35 The Town offered Wyman v. James as an example of how a government agent may enter a home without triggering a search within the (1971). meaning of the Fourth Amendment. benefits under the federal Dependent Children program ("AFDC"). New York, residents, ensure U.S. 309 The eponymous Mrs. James applied for, and received, financial of 400 the in required administering periodic beneficiaries intended uses. were AFDC visits putting See id. at 313-16. 23 to Families Id. at 313-14. the home Aid program by a program with The State for state caseworker funds to to the Mrs. James filed a civil No. rights action alleging the violated the Fourth Amendment. ¶36 home visits were 2015AP1523 searches that Id. at 314-15. The Supreme Court did not agree. It acknowledged that the visits had both "rehabilitative and investigative" aspects, but brushed off the latter because it "is given too broad a character and far more emphasis than it deserves if it is equated with a search in the traditional criminal law context." Id. at 317. home visits, Concentrating instead on the consensual nature of and the fact that withholding consent merely stopped the flow of AFDC benefits, the Court found no search within the meaning of the Fourth Amendment: We note, too, that the visitation in itself is not forced or compelled, and that the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search. Id. at 317-18. Underlining the importance of consent to its analysis, the Court signaled that the home visits could become searches should they lose their consensual nature: If however, we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment's standard. Id. at 318. 24 No. ¶37 the Wyman tax assessor's 2015AP1523 provides no assistance in determining whether proposed view of the interior Milewskis' home is a Fourth Amendment search. of the It does not actually define what manner of activity qualifies as a search for Fourth Amendment purposes. Instead, it asks whether the homeowner has excused the government agent from complying with constitutional requirements at all. course, does Florida v. not prohibit Bostick, 501 The Fourth Amendment, of consensual U.S. 429, searches. 439 (1991) See, ("The e.g., Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation"); see also, United States v. Williams, 521 F.3d 902, 905 (8th Cir. 2008) ("Consensual searches do not violate the Fourth Amendment . . . ."). The Fourth not Amendment because the is no activity barrier is not a to consensual search, but searches because removes the search from Fourth Amendment scrutiny. consent So it is only in the absence of consent that we need to determine whether a certain activity has constitutional significance. Because Wyman relied on consent as the decisional principle, it did not explicitly decide whether the caseworker's activity in Mrs. James' home constituted a search. ¶38 The Town argues that if the Milewskis and Mrs. James' situations are not sufficiently comparable, we should analogize this case to an analogy employed by the Wyman Court: It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a taxpayer's income tax return, asks that the taxpayer produce for the agent's review 25 No. 2015AP1523 some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. So here Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved. 400 U.S. at 324. ¶39 This illustrates analysis the offers limited utility no of guidance recursive and, indeed, analogies. An analogy is helpful when it illuminates a central proposition by considering it in a different, but logically related, context. Building one analogy on another risks shifting the focus from the central here. proposition to something peripheral, as occurred The Wyman Court employed the IRS analogy in determining whether the reasonable. caseworker's home visit was constitutionally That is, it was not using the analogy to determine whether the home visit was a search——it was assuming, as part of its premises, that the visit was a search within the Fourth Amendment's comprehension. So when the Town asserts a "viewing" is not a search because, like "the hypothetical plaintiff in the [Wyman] Court's example, Milewski and MacDonald face no criminal penalties for refusing entry into their home[;] [t]he only consequence is a tax detriment of their own making," it builds its foundation on the IRS analogy's premise that the visit was a search. Thus, the recursive analogies resulted in a petitio 26 No. principii error premises). (positing an argument's 2015AP1523 conclusion in the Wyman's analogy, therefore, has nothing instructive to say about whether an "interior viewing" is a search within the meaning of the Fourth Amendment. ¶40 In determining whether a tax assessor conducts a constitutionally-significant search when viewing the interior of a home, we apply the elegantly simple Jones formulation: If a government agent occupies private property for the purpose of obtaining meaning information, of the he Fourth is conducting Amendment. confirms this would be a search. The a search Town's within own the argument It is the Town's central point that a tax assessor must physically enter the Milewskis' home to conduct an interior view. simple requirement that And by describing the viewing as "a taxpayers disclose the information relevant to the value of their home," the Town admitted the purpose of the assessor's presence would be to obtain revenuerelated information. Thus, a tax assessor who enters a home to conduct an "interior view" occupies private property for the purpose of obtaining information and is therefore conducting a search within the meaning of the Fourth Amendment. b. ¶41 Exception to the Fourth Amendment The Town asserts that a tax assessor's search of a home fits within the "special needs" exception to the Fourth Amendment's protection. It refers us to City of Indianapolis v. Edmond for instruction. 531 U.S. 32 (2000). There we find that the United States Supreme Court has recognized a 27 mélange of No. 2015AP1523 circumstances in which searches are constitutionally reasonable even in the absence of individualized suspicion of wrongdoing: [W]e have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student-athletes); Treasury Emps. v. Von Raab, 489 U.S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Ry. Labor Execs. Assn., 489 U.S. 602 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e.g., New York v. Burger, 482 U.S. 691, 702–704 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U.S. 499, 507–509, 511–512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523, 534–539 (1967) (administrative inspection to ensure compliance with city housing code). Edmond, 531 U.S. at 37. searches to this The Town asks us to add tax assessment potpourri because revenue collection is a "special need," and the search is "not aimed at all at criminal— —or even civil code——enforcement." ¶42 Whatever the merits of those exceptions, the Town has not directed our attention to any case suggesting that assessing or collecting taxes is a need so special that it excuses compliance with the Fourth Amendment. Nor have we found any. To v. the contrary, G.M. Leasing Corp. United States, 429 U.S. 338 (1977), teaches that the Fourth Amendment admits of no 28 No. "tax revenue" special exception. In that 2015AP1523 case, the Court considered whether United States revenue agents could enter a corporation's various business books efforts. and offices records without useful See id. at 352-53. to a warrant their tax to seize collection The United States made an argument similar to what the Town offers us: "The respondents argue that there is a broad exception to the Fourth Amendment that allows warrantless intrusions into privacy enforcement of the tax laws." in Id. at 354. the furtherance of It also maintained that "the history of the common law in England and the laws in several States prior to the adoption of the Bill of Rights support the view that the Fourth Amendment was not intended to cover intrusions into privacy in the enforcement of the tax laws." Id. at 355. ¶43 After noting the government's unquestionable authority to "lay and collect Taxes," the Court nonetheless recognized that "one of the primary evils intended to be eliminated by the Fourth Amendment was the massive intrusion on privacy undertaken in the collection of taxes pursuant to general warrants and writs of supporting assistance." the United Id. The States' Court assertion found no that the evidence Fourth Amendment was historically understood as not reaching matters of revenue. Id. ("We do not find in the cited materials anything approaching the clear evidence that would be required to create so great an exception to the Fourth Amendment's against warrantless intrusions into privacy."). protections So the Court affirmed the Fourth Amendment's application to searches in aid 29 No. 2015AP1523 of tax revenues: "The intrusion into petitioner's office is therefore by governed the normal Fourth Amendment rule that 'except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.'" G.M. Leasing Corp., 429 U.S. at 358 (quoting Camara, 387 U.S. at 528– 29). The Supreme Court's reasoning neatly answers the Town's argument, and so we decline the invitation to declare that administering the property tax statutes is a "special need" that exempts tax assessment searches from the Fourth Amendment's proscriptions.17 c. ¶44 Is an "Interior View" a Reasonable Search? Because "unreasonable" the Fourth searches, we Amendment must forbids determine only whether—— notwithstanding the inapplicability of any recognized exception to the Fourth Amendment——it is nonetheless reasonable to require homeowners to submit to a tax assessor's periodic inspection of the interior of their homes. The basic framework of our inquiry is as follows: Under our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable is 17 The dissent justifies nonconsensual, warrantless home inspections as an aid in administration of our property tax laws. But the United States Supreme Court has already rejected that rationale. See G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). The dissent does not explain how this justification can co-exist with G.M. Leasing Corp. 30 No. 2015AP1523 determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Samson v. California, 547 U.S. 843, 848 (2006) (internal marks and citations omitted). Because we are addressing the propriety of a potential warrantless home search, we presume it would be unreasonable and therefore unconstitutional. "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton, 445 U.S. at 586; see also Camara, 387 U.S. at 528-29 ("[O]ne governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper authorized by consent a valid is 'unreasonable' search warrant.") unless it (citing has been Stoner v. California, 376 U.S. 483 (1964); United States v. Jeffers, 342 U.S. 48 (1951) overruled on other grounds by Rakas v. Illinois, 439 U.S. 128 (1978); McDonald v. United States, 335 U.S. 451 (1948); Agnello v. United States, 269 U.S. 20 (1925)). It is the Town's burden to demonstrate a nonconsensual, warrantless search of the Milewskis' home is reasonable even though it does not fit within a recognized exception to the Fourth Amendment. ¶45 The Town does not say there is anything peculiar about the Milewskis' home that requires an interior inspection. In fact, its thesis is quite the contrary——it says that every home in the Town of Dover must be open to a tax assessor's inspection without any particularized demonstration of need. 31 Therefore, we No. 2015AP1523 understand the Town to be asking us to adopt a bright-line rule that warrantless home searches, conducted by tax assessors in conformance with the requirements of Wis. Stat. ch. 70, are reasonable as a matter of law. ¶46 The Town says such searches are reasonable for three reasons. First, they are useful in ensuring compliance with our constitution's "Uniformity Clause." relatively minor. formality, which And third, demonstrates a Second, the intrusion is warrant such would searches be are a mere always reasonable. i. ¶47 The Uniformity Clause The process by which Wisconsin municipalities raise revenues makes a proper valuation of real property not just important, but essential to fulfillment of the constitutional command that "[t]he rule of taxation shall be uniform . . . ." See Wis. Const. art. VIII, § 1. The process begins with the municipality calculating how much revenue it needs from property taxes. See Jack Stark, The Uniformity Clause of the Wisconsin Constitution, 76 Marq. L. Rev. 577 (1993). It then determines the total value of taxable property in the jurisdiction. 577-78. Id. at Finally, it sets the mill rate18 at a level that will 18 Investopedia defines mill rate as follows: "The mill rate, also referred to as the millage rate, is a figure representing the amount per $1,000 of the assessed value of property, which is used to calculate the amount of property tax. The term 'millage' is derived from a Latin word meaning 'thousandth,' with 1 mill being equal to 1/1,000th of a currency unit." See Mill Rate, Investopedia, http://www.investopedia.com/terms/m/millrate.asp (last visited June 28, 2017). 32 No. generate the required revenue. Id. at 578. 2015AP1523 A property owner calculates his tax liability by multiplying the mill rate by the assessed value of his property. Id. Raising or lowering the assessed value of a particular property, therefore, does not change the amount of revenue the municipality raises. changes the allocation of the municipality's property owners. tax burden It simply amongst the The purpose of the Uniformity Clause is to ensure the tax burden is allocated proportionally to the value of each person's property. Milwaukee, 33 Wis. 2d 408, 426, purpose of the uniformity clause against unequal, and consequently 147 is Gottlieb v. City of N.W.2d 633 (1967) (The "to protect the citizen unjust taxation." (quoting Weeks v. City of Milwaukee, 10 Wis. 186, 201 (1860)). ¶48 Satisfying the Uniformity Clause requires not just a uniform tax rate, but a uniform method of determining the value of the property to which that rate will apply. The act of laying a tax on property consists of several distinct steps, such as the assessment or fixing of its value, the establishing of the rate, etc.; and in order to have the rule or course of proceeding uniform, each step taken must be uniform. The valuation must be uniform, the rate must be uniform. Thus uniformity in such a proceeding becomes equality; and there can be no uniform rule which is not at the same time an equal rule, operating alike upon all the taxable property throughout the territorial limits of the state, municipality or local subdivision of the government, within and for which the tax is to be raised. Knowlton v. Bd. of Supervisors of Rock Cty., 9 Wis. 410, 420-21 (1859). Our statutes prescribe that uniform methodology: "Real property shall be valued by the assessor in the manner specified 33 No. in the Wisconsin property assessment manual 2015AP1523 provided under s. 73.03(2a) from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale." Wis. Stat. § 70.32(1). ¶49 The Town asserts its home searches are necessary to carry out the Uniformity Clause mandate. It notes that the Wisconsin Property Assessment Manual19 says "the assessor must make a thorough, property, physical noting detailed, relevant condition, and objective characteristics effective age, and as viewing of they relate functional each to utility." Wis. Dep't of Revenue, Wisconsin Property Assessment Manual, 1220 (2017) (hereinafter "WPAM"). With respect to real property, Gardiner says the Manual insists on an interior view of all buildings: "In the case of real property, actual view requires 19 The Wisconsin Property Assessment Manual is published by the Wisconsin Department of Revenue as required by statute. The manual must accomplish the following: The manual shall discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level. The manual shall be amended by the department from time to time to reflect advances in the science of assessment, court decisions concerning assessment practices, costs, and statistical and other information considered valuable to local assessors by the department. Wis. Stat. § 73.03(2a). 34 No. 2015AP1523 a detailed viewing of the interior and exterior of all buildings and improvements and the recording of complete cost, age, use, and accounting treatments." Id. at 10-55. Gardiner also refers to a number of appraisal guidelines emphasizing the importance of interior inspections. ¶50 The Town and Gardiner are likely right that an interior view of the Milewskis' home would be the most direct method of obtaining revaluation. the information necessary to perform a But this is only one of the statutorily-prescribed methods of developing a valuation: "Real property shall be valued . . . from actual view or from the best information that the assessor can practicably § 70.32(1) (emphasis added). potential sources valuation. It of lists obtain . . . ." Stat. The statute gives the assessor two information those Wis. with sources in which the to disjunctive, suggests no preference for one over the other.20 acknowledges and reflects these options. develop a and The Manual WPAM at 10-55 ("The statutes require that real . . . property be valued from actual view or the best information obtainable." (Emphasis added.)). 20 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). 35 No. 2015AP1523 So the plain meaning of the statute is that an assessor may develop a valuation out of either source of information.21 ¶51 that The Town's actions, as well as other statutes, tell us the Uniformity Clause does inspection of the Milewskis' home. not require an interior A homeowner has a statutory right to deny a tax assessor entry, and an assessor who enters anyway is a trespasser. § 943.13(4m)(am)4. See Wis. Stat. § 70.05(4m), Wis. Stat. Yet, securing one's property against the tax assessor does not grind the valuation mechanism to a halt, as the Town itself demonstrated. valuing the Milewskis' home The Town proved itself capable of notwithstanding perform an interior inspection. incorrect, sought as the the "best Milewskis its inability to It may be that the valuation is claim, information that but the the Town presumably assessor [could] practicably obtain", as allowed by Wis. Stat. § 70.32(1), and developed the valuation accordingly. If proceeding under this alternative was not consistent with the Uniformity Clause, then the Town indicts itself for violating the constitution by assigning a value to the Milewskis' home without an interior 21 The dissent says these really are not disjunctive options, and spends most of its analytical space trying to empty all meaning out of the second option into the first. But if the second option really means nothing more than the first, then the legislature acted frivolously when it added that option to the statute. See I Sandborn & Berryman Ann. Stats. (1889) § 1052. We try not to treat legislative enactments as surplusage. State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, ¶46 ("Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage."). 36 No. 2015AP1523 inspection. And if the Town based its valuation on something other an than "actual view" or the "best information" practicably available, it has not said what it was or where it obtained the authority to do so. without contradicting itself, Thus, the Town cannot argue, that the Uniformity Clause requires an interior inspection while simultaneously taxing the Milewskis based on a valuation it developed without such an inspection. ¶52 Finally, if the Uniformity Clause does not allow valuations based on the "best information" option (the option the Town appears to have exercised), then the constitutionality of Wis. Stat. § 70.32(1) becomes suspect. such an argument, and because we But no one has made presume our statutes constitutional, we will not indulge any such speculation. are See, e.g., In re Gwenevere T., 333 Wis. 2d 273, ¶46 ("Statutes are generally presumed constitutional" and we will not find otherwise unless "there is proof beyond a reasonable doubt that the statute is unconstitutional."). Thus, we conclude that although an interior inspection may be useful, convenient, and expedient in developing a valuation, the Uniformity Clause does not require it. ii. ¶53 Minor Intrusion The home does not stand on the same footing as other spaces protected by the Fourth Amendment: "[W]hen it comes to the Fourth Amendment, the home is first among equals." v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013). 37 Florida We do No. not equivocate on this principle. 2015AP1523 "There can be no doubt that 'the Fourth Amendment has drawn a firm line at the entrance to the house'" and that "it is our duty to zealously guard that line." Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445 U.S. at 590). ¶54 So when the Town says a tax assessor's uninvited visit is a "relatively minor" intrusion in one's home, we look closely at what he proposes to do there. Gardiner said it would conduct a "detailed viewing of the interior . . . of all buildings and improvements and the recording of complete cost, age, use, and accounting treatments." It says "[i]t is essential that the assessor perform a thorough, detailed, and objective viewing of each property" that is "field verified and accurate." what Gardiner would be seeking is evidence of Part of the home's "effective age," which requires it to carefully consider "abuse, neglect, general maintenance, and all other influences on the physical condition of the improvements." This search requires the assessor to "inspect the interior of a minimum of 90%" of the home. scrutinizes In the such process personal basements, and bathrooms. of the spaces search, as the bedrooms, assessor kitchens, If this was a medical examination, "minor intrusion" is not the description that would come to mind. ¶55 The Town and Gardiner also say such searches are relatively minor intrusions because they are preceded by notice, and the homeowner has an opportunity to schedule the search. It says this procedure even "gives homeowners time to tuck away any 38 No. 2015AP1523 personal property they do not want the assessor to see." While this procedural politeness is certainly welcome, it does nothing to detract from the offense given by the search itself. As Boyd recognized, to the Fourth Amendment's principles "apply all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life." at 630. The Fourth Amendment is less concerned 116 U.S. with the politeness with which the government agent enters a home than it is with the fact he is there at all. "It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property . . . ." ¶56 because The it Town "is Id. further clearly asserts less than the intrusion in searches is minor where the government is checking the homeowner's compliance with civil or criminal rules and the homeowner faces the specter of being found guilty of violations and having to pay fines or criminal consequences." That significance this of may be true, but it misapprehends constitutionally-protected right. the The purpose of the Fourth Amendment is not to provide an opportunity to secret away the fruits and instrumentalities of (although it can sometimes have that incidental effect). crime The point is to protect a person's right to be secure in one's home, to lie in repose, or partake of what activities one wishes, free of the government's watchful eye. The Fourth Amendment's promise is that a person may stand in his door and tell the 39 No. government agent "you shall not pass": 2015AP1523 "[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . ." United States v. U.S. Dist. Court for E. Dist. of Mich., So. Div., 407 U.S. 297, 313 (1972). ¶57 The intrusiveness of a search lies on a continuum; a pat-down incident to a Terry stop22 might lie near one end, while towards the other microscopically owner's most end lies punctilious private of a that search it of can thoughts.23 one's pry even Somewhere home into along so the that continuum the government hits the zealously guarded "firm line 22 Terry v. Ohio, 392 U.S. 1 (1968). 23 See State ex rel. Two Unnamed Pet'rs v. Peterson, 2015 WI 85, ¶18, 363 Wis. 2d 1, 866 N.W.2d 165 (the sought-after information included emails on computers seized during the search). 40 No. at the entrance of the house." 2015AP1523 Beyond that line there are no minor intrusions.24 iii. Warrant ¶58 The Town asserts we may deduce the reasonableness of a tax assessor's search by considering what an application for an administrative search warrant might say. Because the assessor has the duty to inspect the interior of everyone's home, the Town argues, every application for an administrative warrant would be the same, and would simply repeat the contents of the notice already sent to the homeowner. With no requirement to find a particularized need for the search, the argument goes, the warrant application process would be a kabuki play ending with the magistrate's predestined approval. If every application necessarily results in issuance of a warrant, then such searches are categorically reasonable. 24 One of the concurrences says this statement is too broad. Justice Ziegler's concurrence, ¶103. This should be an entirely unremarkable statement, and it is troubling that, apparently, it is not. If we cannot rouse ourselves enough to say this, then maybe Justice Ann Walsh Bradley is right when she said, just this term, that our jurisprudence "continues the erosion of the Fourth Amendment." State v. Floyd, 2017 WI ___, ¶48, ___ Wis. 2d___, ___ N.W.2d ___ (Ann Walsh Bradley, J., dissenting). And if that is the case, then we should stop making grandsounding statements like "There can be no doubt that 'the Fourth Amendment has drawn a firm line at the entrance to the house'" and that "it is our duty to zealously guard that line." Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445 U.S. at 590). We should say what we mean, and if what we mean is that finding an uninvited government agent trespassing in one's home can be a "minor" intrusion, then it would be far more accurate to say that we lackadaisically observe a permeable line somewhere in or around the house. 41 No. ¶59 2015AP1523 We find a parallel to the Town's argument in Camara. There, the Court considered whether a municipal health inspector must obtain a warrant to annually conduct routine interior inspections for evidence of building code violations. It was asserted that the "decision to inspect an entire municipal area is based upon legislative or administrative assessment of broad factors such as the area's age and condition." 532. Id. 387 U.S. at Thus, "[u]nless the magistrate is to review such policy matters, he must issue a 'rubber stamp' warrant which provides no protection at all to the property owner." ¶60 The warrantless knowing Camara inspection whether requires Court disagreed. regime enforcement inspection of his "the of Id. It noted occupant the has municipal premises, no way that no code of in way a of involved knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization." Id. This leaves the building's occupant at the mercy of "the discretion of the official in the field." The warrant requirement exists limiting such discretion: for the specific purpose Id. of "This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search." prescribed Id. at search 532-33. regime It was concluded no that substitute a statutorily- for a neutral magistrate's review before intruding in someone's home. "We simply cannot say that the protections provided by the warrant procedure are not needed in this 42 context; broad statutory No. safeguards are no substitute for 2015AP1523 individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty." ¶61 A warrant Id. at 533. requirement justified than in Camara. here would be even more There, the health inspector had an indisputable statutory obligation to conduct interior searches. The same is not true here. As we discussed above, the tax assessor may base his valuation on either an actual view of the home or, instead, the "best information" practicably available to him. leaves If he believes the "best information" available still him with insufficient constitutionally-sound data valuation for on a which specific to home, build he a may explain why that is so in his application for an administrative warrant. As in Camara, the warrant will also perform the salutary function of advising the homeowner of the lawful basis for the inspection of his home, describing the search's proper limits, and identifying the assessor as one with authority to search. A warrant requirement in these circumstances would be no meaningless paper-shuffle.25 * * * ¶62 A tax assessor's inspection of a home's interior is a search within the meaning of the Fourth Amendment, and so it is 25 Notwithstanding the striking similarities between the legislative schemes at issue both here and in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967), the dissent does not explain why San Francisco needed a warrant, but the Town of Dover does not. 43 No. presumptively unreasonable——and the absence of a warrant. therefore 2015AP1523 unconstitutional——in The Town has offered nothing that overcomes that presumption, and so we find that a tax assessor's warrantless search of a home would be unconstitutional without consent. B. The Dilemma ¶63 They So the Milewskis really did, and do, face a dilemma. have a right to challenge the revaluation of their Property, as well as a right to prevent the tax assessor from inspecting the interior of their home without consent. The question now is whether the Town may require them to surrender one as the price for exercising the other. We all learned how to address this type of situation when we were children: wrongs don't make a right. Two It would have been a constitutional wrong to perform a warrantless search of the Milewskis' home in search of taxable value, and it was in fact a constitutional wrong to deprive them of their due process rights. Forcing a person to choose between constitutional injuries does not make the one he chooses any less injurious. ¶64 The purpose of giving a right constitutional stature is to protect it from legislative or executive suspension. If, instead of setting two rights at odds, a statute flatly banned judicial review of a tax assessor's revaluation of real property, a brief recitation of our due-process catechism would summarily consign it to the realm of unconstitutional acts. Likewise, a legislative act authorizing an unreasonable search of a person's home would experience a similarly swift demise. 44 No. Because we can so easily would be odd if what 2015AP1523 dispatch such obvious assaults, it cannot be done directly could yet be accomplished indirectly through the expedient of juxtaposing one constitutional right against another. It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. Frost v. R.R. Comm'n of Cal., 271 U.S. 583, 593 (1926).26 ¶65 The attempt to negate one constitutional right by pitting it against another is a gambit not unknown to the law. One of the earlier cases to address this situation, Simmons v. United States, 390 U.S. 377, 394 (1968), considered whether a defendant must choose between his Fourth and Fifth Amendment rights. There, the FBI had conducted a search that netted a suitcase belonging to one of the defendants, Mr. Garrett, which contained incriminating evidence. Id. at 380-81. faced the same type of dilemma as the Milewskis. rules then obtaining, a motion to suppress the Mr. Garret Under the evidence as unconstitutionally procured would require Mr. Garrett to testify 26 A sophisticated statutory scheme that deprives the Milewskis of either their Fourth or Fourteenth Amendment rights is no more acceptable than a blunt exercise of legislative authority that accomplishes the same thing. See, e.g., Lane v. Wilson, 307 U.S. 268, 275 (1939). ("The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination . . . ."). 45 No. 2015AP1523 that the suitcase belonged to him, but if he did so and the motion failed, his suppression testimony could be used against him at trial. Id. at 389-91. contemplating his litigation The Court observed that, in strategy, "Garret was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination." at 394. the Id. He opted for the suppression motion, which failed, and government used his suppression conviction. See id. at 389. "undeniable tension" this testimony to obtain a The Simmons Court recognized the type of situation creates, and concluded that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." Id. at 394. ¶66 The Eleventh Circuit Court of Appeals considered a similar undeniable tension, but there it was between the First and Fourth Amendments. Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004). Mr. Bourgeois wished to attend a political protest, but the city of Columbus, Georgia required all those entering the protest site to submit to a metal detector search. 1306-07. The City argued that relinquishing one Id. at of the constitutional rights was consensual because no one was under an obligation to attend the protest. See id. at 1324. Those who valued their speech and assembly rights more highly than their right to be free of unreasonable searches, the City said, would voluntarily submit to a search. See id. Those who valued their Fourth Amendment rights more highly would forego attendance at 46 No. the protest. See id. 2015AP1523 Either way, the potential attendees knew the price of exercising their rights, and chose accordingly. See id. There is more than an echo of this argument in the Court Appeals of opinion, which reasoned that the Milewskis "were well informed of the repercussions of refusing Gardiner's reasonable request to view the interior of their home, and Plaintiffs chose to abandon their right to challenge the tax assessment before the BOR." Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op., ¶21. ¶67 with The Bourgeois court succinctly described the problem this type of unconstitutional reasoning: conditions "[T]he very doctrine is purpose to of the prevent the Government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights." F.3d at 1324-25. It's troubling when Bourgeois, 387 the price of a discretionary governmental benefit is loss of a constitutional right; it's simply unacceptable when the State requires a person to sideline one constitutional right before exercising another. As the Bourgeois court observed, "[t]his case presents an especially malignant unconstitutional condition because citizens are being required to surrender a constitutional right—freedom from unreasonable searches and seizures—not merely to receive a discretionary benefit but to exercise rights—freedom of speech and assembly." two other fundamental Id. at 1324. Worse yet, there is no discernible principle that would limit the malignancy. "If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in 47 No. like manner, compel a surrender of all." 594. 2015AP1523 Frost, 271 U.S. at We agree with the Frost Court's observation that "[i]t is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence." Id.; see also Smith v. Allwright, 321 U.S. 649, 664 (1944) ("Constitutional rights would be of little value if they could be thus indirectly denied."). ¶68 The Milewskis exercised their right to deny the tax assessor's request to inspect the interior of their home. For the exercise of that constitutionally-protected right, they lost the ability to contest their increased tax burden.27 The 27 One of the concurrences favors resolving this case on statutory grounds——as a means of avoiding constitutional issues— —by interpreting "view" in Wis. Stat. § 70.47(7)(aa) to mean only "exterior view." Chief Justice Roggensack's concurrence, ¶92 ("[I]nterpreting 'view such property' under Wis. Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the property avoids the possibility that the statutory scheme would operate to infringe the due process rights of a taxpayer by denying the taxpayer the opportunity to be heard."). Because the Milewskis offered Gardiner an exterior view, the concurrence concludes, they satisfied the statute and should have been allowed to challenge the assessment. Id., ¶97. But this resolution doesn't avoid the constitutional issue, it just avoids talking about it. (continued) 48 No. 2015AP1523 constitution may not be put at odds with itself, and we do not countenance penalties on the exercise of constitutional rights.28 Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551 (1956) (preventing local government from conditioning right to due process against on disavowal of self-incrimination); the Fifth Shelton v. Amendment Tucker, protection 364 U.S. 479 (1960) (preventing local government from conditioning employment on impairment of constitutionally-protected free association rights); see also Harman v. Forssenius, 380 U.S. 528, 540 (1965) ("It has long been established that a State may not impose a The limiting construction the concurrence would place on "view," it says, is necessary to "save the constitutionality of the statutory scheme." Id., ¶94. It must have been the interior inspection that put the statute at risk because that's what the concurrence would exclude from the scope of the term "view." And although it didn't say why the interior view created constitutional peril, it must have been that it would violate the Fourth Amendment. If that were not so, then no "saving" construction would be necessary. So the Chief Justice must have concluded, just as we did, that a nonconsensual, warrantless interior inspection would violate the Fourth Amendment. The only difference between her conclusion and ours is that we said it aloud, while she said it sotto voce. We should say such things aloud. 28 The dissent says revoking someone's due process rights is a reasonable "constitutional inducement" to obtain a person's consent to a search of one's home. See dissent, ¶170. Constitutionally valid consent, however, must be given freely and voluntarily. See State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 ("The State bears the burden of proving that consent was given freely and voluntarily . . . ."). Stated in the negative, effective consent cannot be "the product of duress or coercion, express or implied . . . ." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Threatening someone with the loss of a constitutional right sounds an awful lot like "duress or coercion." 49 No. penalty upon those who exercise a right guaranteed Constitution." (citing Frost, 271 U.S. at 593)).29 suffered solely an abridgement because they of their exercised Fourteenth their Fourth 2015AP1523 by the The Milewskis Amendment Amendment rights rights, which is a real and immediate constitutional injury.30 29 The Harman Court considered a Virginia statute that forced voters to choose between (a) an onerous yearly registration process and (b) payment of a poll tax. The Court observed that the latter option violated the 24th Amendment, while the former acted as a substantial encumbrance on "[t]he right to vote freely for the candidate of one's choice[, which] is of the essence of a democratic society . . . ." Harman v. Forssenius, 380 U.S. 528, 540 (1965) (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). "Restrictions on that right," it said, "strike at the heart of representative government." Harman, 380 U.S. at 540 (quoting Reynolds, 377 U.S. at 555). So Virginia voters were faced with a Milewski-like conundrum: Submit to an unconstitutional poll tax, or suffer an encumbrance on the right to vote that strikes at the heart of representative government. The Harman Court concluded Virginia could not put its citizens to that choice. 30 One of the concurrences is concerned by our decision to opine on the "unconstitutional conditions doctrine" because it was not briefed. Justice Ziegler's concurrence, ¶101. It is fair to say this subject comprised virtually the entirety of the Milewskis' briefing. As relevant here, the doctrine expresses the basic principle that the State may not put constitutional rights at odds with each other such that a person must surrender one as the price of exercising the other. See, e.g., Slowchower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551 (1956); Simmons v. United States, 390 U.S. 377 (1968); Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004). That is precisely, and only, what the Milewskis argued. They said they have a due-process right to challenge their tax reassessment, they have the simultaneous right to prevent government agents from searching their home, and they said the statutes told them they had to choose between those rights. We have not addressed anything the parties have not briefed. (continued) 50 No. ¶69 2015AP1523 The only remaining question is whether application of Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) will invariably cause this injury under all circumstances. If they will, we must declare them unconstitutional on their face to the extent they foreclose judicial review of a tax assessor's revaluation.31 they do not, of necessity, inflict this injury, then If the constitutional infirmity lies only in how they were applied to the Milewskis. The Milewskis say their challenge is the latter, while the Town says the Milewskis are really arguing that the statutes are facially unconstitutional. The concurrence also says existing cases demonstrate the unconstitutional conditions doctrine is applicable only when the State conditions access to a government-provided benefit upon surrender of a constitutional right. Justice Ziegler's concurrence, ¶101. While courts most frequently discuss the doctrine in that context, they also address it in the context of juxtaposed constitutional rights (as we described above). In any event, concluding from this that the doctrine protects access to government benefits but not constitutional rights is to make government benefits a higher order of rights than those protected by our Constitutions. Neither law nor logic supports such a proposition. Finally, the concurrence agrees the Milewskis could not be constitutionally required to choose between their Fourth and Fourteenth Amendment rights. Justice Ziegler's concurrence, ¶100. But it does not explain how or why it would reach that conclusion without aid of the very principles it rejects. 31 Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786 N.W.2d 385 ("[A] facial constitutional challenge attacks the law itself as drafted by the legislature, claiming the law is void from its beginning to the end and that it cannot be constitutionally enforced under any circumstances . . . ."). 51 No. ¶70 We find only that Wis. Stat. 2015AP1523 §§ 70.47(7)(aa) & 74.37(4)(a) were unconstitutionally applied to the Milewskis. The former provision states, in its entirety: No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. Wis. Stat. § 70.47(7)(aa). terms, say where the assessor "view" of the property. somewhere that otherwise, requires there The statute does not, by its express would will be when he conducts his However, it does assume he will be the be owner's no need consent. to ask If it were permission——the assessor could simply conduct the "view" without contacting the owner at all. It is not immediately apparent to us that a Venn diagram of "places where an assessor may not be without consent" and "places the Fourth Amendment protects against unreasonable searches" would depict completely overlapping circles. To the extent they diverge, the statutory provision is not facially unconstitutional. This question was not addressed directly, and nothing in the parties' briefs indicates such a divergence is not possible, so we reserve for another day the determination of its facial soundness. read to require a We hold only that this statute may not be "viewing" that would violate not identified the Fourth Amendment. ¶71 The constitutional parties infirmity have in Wis. Stat. any inherent § 74.37(4)(a). This provision simply requires a property owner to comply with the 52 No. 2015AP1523 board of review procedures before filing a claim for excessive assessment in circuit court: "No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under [Wis. Stat. §] 70.47 . . . have this case, Review's been however, complied those determination with." procedures that the § 74.37(4)(a). included Milewskis the must In Board submit to of an unconstitutional search of their home before presenting their challenge. Because § 74.37(4)(a) unconstitutional application of incorporated § 70.47(7)(aa), it the too was unconstitutionally applied to the Milewskis. IV. ¶72 CONCLUSION Applying Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) in a manner that required submission to a tax assessor's search as a precondition to challenging the revaluation of their property violated the Milewskis' due process rights as guaranteed by the Fourteenth Article Amendment I to section the 1 United of the States Constitution, Wisconsin and Constitution. Consequently, we reverse the court of appeals and remand to the circuit court for further proceedings consistent with this opinion. By the Court.—The decision of the court of appeals is reversed and the matter is remanded to the circuit court for further proceedings consistent with this opinion. 53 No. ¶73 PATIENCE DRAKE ROGGENSACK, C.J. 2015AP1523.pdr (concurring). I agree with the lead opinion that the Milewskis are entitled to a hearing to contest their tax assessment, and therefore I concur in the mandate. I write separately because I conclude that the Milewskis are statutorily entitled to a hearing even though they did not permit a tax assessor to enter the interior of their home. Therefore, because I would not address the constitutional issues discussed by the lead opinion, I do not join the lead opinion, but respectfully concur. I. ¶74 therefore BACKGROUND The lead opinion ably sets forth relevant facts, and I relay only those facts that are helpful to understanding my discussion that follows. ¶75 The Milewskis received a written notice that a tax assessor, Gardiner, property.1 When would Gardiner visit their arrived, home Ms. Gardiner to view the exterior of their home. to view MacDonald their permitted She offered to let Gardiner through a gate and into their yard so that he could view the entire exterior of their home. Gardiner declined this invitation and left the property. ¶76 higher Gardiner valued the Milewskis' property significantly than it previously had been valued. Mr. Milewski appeared at the Town of Dover Board of Review (board of review) to object to the valuation of their property. 1 The board of The notice requested an interior view of their home. 1 No. 2015AP1523.pdr review denied Mr. Milewski the opportunity to appear because he had not permitted the assessor to view the interior of his home. ¶77 The Milewskis paid their taxes for 2013 and sought review of their tax assessment in circuit court under Wis. Stat. § 74.37. The Town of Dover Board of Review and Gardiner moved for summary judgment. They contended that the Milewskis lost their right to contest the valuation of their property before the board of review, and, as a corollary, the right to challenge their tax assessment as excessive in circuit court. ¶78 The Milewskis moved for partial summary judgment and argued, in part, that they were entitled to a hearing to object to their tax assessment because Wis. Stat. § 70.47(7)(aa) is satisfied by a taxpayer who permits an exterior view of his property, and the Milewskis permitted such a view. ¶79 the Town The circuit court granted summary judgment in favor of of affirmed. Dover and Gardiner, and the court of appeals We granted the Milewskis' petition for review. I would reverse the court of appeals and remand to the circuit court for a hearing on the Milewskis' excessive tax assessment claim. II. DISCUSSION A. Standard of Review ¶80 The present case requires the court to interpret and apply the statutory provisions that govern the valuation of real property and assessment. the ability of "Interpretation a and taxpayer to application contest of a a tax statute present questions of law that we review independently, while 2 No. 2015AP1523.pdr benefitting from the analyses of the circuit court and court of appeals." Sorenson v. Batchelder, 2016 WI 34, ¶10, 368 Wis. 2d 140, 885 N.W.2d 362 (citing Pool v. City of Sheboygan, 2007 WI 38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415). B. Statutory Interpretation ¶81 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional Milwaukee Cty., 2003 meaning." WI 28, Id., ¶¶8, 20, ¶45 260 (citing Bruno Wis. 2d 633, v. 660 N.W.2d 656). ¶82 These principles guide our interpretation of the three pertinent statutes in this case: Wis. Stat. § 70.32(1); Wis. Stat. § 70.47(7)(aa); and Wis. Stat. § 74.37. The circuit court and the court of appeals concluded that these provisions prevent the Milewskis from contesting the valuation of their home and the validity of their tax assessment. ¶83 Wisconsin Stat. § 70.32(1) describes the way in which an assessor is required to value real property. It provides, "Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03(2a) from actual view or from the best information 3 No. 2015AP1523.pdr that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale." Wis. Stat. § 70.32(1). Therefore, there are two permissible ways in which an assessor may value real property: an actual view of the property; or information available to the assessor. (2) based (1) through on the best Of course, an assessor may rely on the best information available because an actual view of a property is not always feasible. See generally Boorman v. Juneau Cty., 76 Wis. 550, 45 N.W. 675, 676 (1890) ("We cannot hold that the mere failure of the assessor to value the lands from actual view invalidated the assessment."). ¶84 A taxpayer who is dissatisfied with the value accorded his real property is allowed to contest the valuation before a board of review. Wis. Stat. § 70.47. Section 70.47(7) outlines the process a taxpayer must follow to receive a hearing before a board of review. § 70.47(a) ("Objections to the amount or valuation of property shall first be made in writing and filed with the clerk of the board of review within the first 2 hours of the board's first scheduled meeting . . . ."). ¶85 A hearing before a board of review allows a taxpayer to object to the valuation of his property; however, a taxpayer also has the option of claiming his tax assessment is excessive. Specifically, a taxpayer may pay the taxes that were imposed and sue for a refund in circuit court. this section, a 'claim for an Wis. Stat. § 74.37(1) ("In excessive assessment' or an 'action for an excessive assessment' means a claim or action, respectively, by an aggrieved person to recover that amount of 4 No. 2015AP1523.pdr general property tax imposed because the assessment of property was excessive."). ¶86 Under Wis. Stat. § 70.47, a taxpayer is required to satisfy certain procedural requirements before he may obtain a hearing to object to the valuation of his property. taxpayer who valuation of is his procedurally property barred before a from board of And, a challenging review is the also precluded from seeking review of his tax assessment in circuit court. Wis. Stat. § 74.37(4)(a) ("No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under s. 70.47(13), have been complied with."). ¶87 Wisconsin Stat. § 70.47(7) explains the ways in which an individual can lose the right to object to a tax assessment. For example, a taxpayer who refuses the request of an assessor to view his property is prevented from contesting the valuation of his property before a board of review and is likewise barred from challenging court. his tax assessment Wis. Stat. § 70.47(7)(aa). as excessive in circuit Therefore, if an assessor requests to "view" the taxpayer's real property, and the owner of the property refuses this request, the owner is prevented from taking any measure to challenge his tax assessment. Specifically, § 70.47(7)(aa) provides, No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. 5 No. 2015AP1523.pdr Under this provision, an assessor may request the opportunity to view a taxpayer's property, but the assessor is not obligated to specify those parts of the property the assessor wishes to view. Accordingly, a "view" may include only the exterior, only the interior or both. ¶88 Although this provision requires an individual to permit an assessor to "view" his property, nothing in Wis. Stat. § 70.47(7)(aa) requires that a taxpayer permit an assessor to view the interior Wis. 2d 312, of 317, 'interpreting' his 153 a home. See N.W.2d 18 statute the State (1967) court is v. not 36 construing ("In Pratt, or at liberty disregard the plain, clear words of the statute."). § 70.47(7)(aa) provides that an assessor opportunity to "view such property." must be to Rather, given the And, the phrase "view such property" is not defined so as to require an interior view of the structures on the property in order for a view of the look at, property to have occurred. ¶89 "View" or "viewing" is defined as "[t]o examine, or inspect" or alternatively as "[a]n examination using the eyes; a look." (5th ed. 2011). without entering View, The American Heritage Dictionary, 1931 An assessor may examine a taxpayer's property the interior of his home. Therefore, an examination of a property for purposes of valuing said property does not necessarily require an assessor to view the interior of any structures located on the parcel of real property. ¶90 The legislature could have used the word "enter" instead of "view," which may have suggested that interior access 6 No. to any structures on the property is required. 2015AP1523.pdr See Kalal, 271 Wis. 2d 633, ¶44 ("We assume that the legislature's intent is expressed in the statutory language."). legislature has used the word It did not. "enter" involving the assessment of property. in other But the contexts Wis. Stat. § 70.05(4m). "When the legislature chooses to use two different words, we generally consider each separately and presume that different words have different meanings." Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874 (internal quotations omitted). ¶91 Importantly, nowhere else in the statutory scheme does it mandate an interior view of a taxpayer's property. And, this interpretation of Wis. Stat. § 70.47(7)(aa) does not prevent an assessor from correctly assessing the value of the home under Wis. Stat. § 70.32 or the Wisconsin Property Assessment Manual. If a taxpayer allows for an exterior view of the home, then that is "the obtain." ¶92 best information that the assessor can practicably § 70.32. Moreover, interpreting "view such property" under Wis. Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the property avoids the possibility that the statutory scheme would operate to infringe the due process rights of a taxpayer by denying the taxpayer the opportunity to be heard. ¶93 The lead opinion's due process analysis is predicated on the presumption that Wis. Stat. § 70.47(7)(aa) precludes the right to be heard for a taxpayer who denies an assessor a view of any part of his home. However, 7 we generally avoid No. 2015AP1523.pdr interpreting a statute in a way that would cause constitutional problems. See Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1, 884 N.W.2d 484 ("We presume that statutes are constitutional and if any doubt exists about the statute's constitutionality, the court must resolve that doubt in favor of upholding the statute." (internal citations omitted)). ¶94 read to Even if the plain language of the statute could be require interpreting the interior statute access such to that a it taxpayer's is property, satisfied exterior view preserves its constitutionality. by an See Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶63, 357 Wis. 2d 469, 851 N.W.2d 262. "If a saving construction . . . preserves constitutionality of the statute, we will employ it." do so in order to avoid a constitutional conflict." the Id. "We Id., ¶64. "Stated otherwise, when we determine that there is a statutory flaw that may have constitutional significance, we ascertain whether the government rule or statute can be interpreted in a manner that will avoid a constitutional conflict." Id. As discussed above, it is possible to interpret the statute such that an exterior view of a taxpayer's property is sufficient. This interpretation allows a taxpayer a hearing to contest his tax assessment if he permits an exterior view of his property, thereby rendering Accordingly, this the statutory court should scheme interpret constitutional. Wis. Stat. § 70.47(7)(aa) such that an exterior view of the property is sufficient in order to "save" statutory scheme. 8 the constitutionality of the No. ¶95 Consequently, I would interpret 2015AP1523.pdr Wis. Stat. § 70.47(7)(aa) consistent with a taxpayer's due process right to be heard. The interpretation accords a taxpayer who permits an exterior view of his property a hearing under § 70.47(7)(aa) and also the right to maintain a refund action under Wis. Stat. § 74.37. ¶96 of his However, a taxpayer who provides only an external view property is not entitled to produce evidence of the interior condition of his home at a hearing before the board of review or in a claim for excessive assessment before a circuit court. the During those proceedings, the taxpayer may cross-examine individual assessor came who to a valued his property reasonable to conclusion determine as to its if the value.2 Through this process, a taxpayer will be able to determine if the assessor relied on the best information available to assess his property, as required under Wis. Stat. § 70.32(1). Additionally, a taxpayer may introduce other evidence unrelated to the interior condition of the property to show his tax assessment was unjust or unreasonable. 2 Assessors, or an authorized representative of the assessor, are required to attend such a hearing. See Wis. Stat. § 70.48 ("The assessor or the assessor's authorized representative shall attend without order or subpoena all hearings before the board of review and under oath submit to examination and fully disclose to the board such information as the assessor may have touching the assessment and any other matters pertinent to the inquiry being made."). 9 No. 2015AP1523.pdr C. Milewskis' Tax Assessment ¶97 In the present case, the Milewskis satisfied the conditions of Wis. Stat. § 70.47(7)(aa), and therefore they are entitled to challenge their tax assessment as excessive under Wis. Stat. § 74.37. When the assessor, Gardiner, arrived at their home, Ms. MacDonald offered to provide the inspector with an exterior view of their home. She offered to open the gate to their yard and let him view the entirety of the exterior. As a result, she offered to let Gardiner "view" the property, which is all that § 70.47(7)(aa) requires in order for a taxpayer to obtain a hearing before a board of review. It is of no consequence that Gardiner declined the Milewskis' invitation to examine the exterior of their home. ¶98 Therefore, the Milewskis satisfied the conditions necessary to be able to challenge their taxes as excessive in circuit court under Wis. Stat. § 74.37. I would remand to the circuit court for a hearing on this claim. However, during the hearing, the Milewskis are not entitled to present evidence as to the condition of the interior of their home. Instead, they may examine Gardiner in order to determine the validity and soundness of the methodology upon which he based the valuation of their property. Additionally, they may introduce other evidence of the value of their property as appropriate. III. ¶99 In light of CONCLUSION the foregoing, I conclude that the Milewskis are statutorily entitled to a hearing even though they did not permit a tax assessor to enter the interior of their 10 No. home. 2015AP1523.pdr Therefore, because I would not address the constitutional issues discussed by the lead opinion, I do not join the lead opinion, but respectfully concur. 11 No. ¶100 ANNETTE KINGSLAND ZIEGLER, respectfully concur in the mandate. J. 2015AP1523.akz (concurring). I I agree with the result reached by the lead opinion in this case, as well as the lead opinion's basic analysis. That is, I agree that the Town could not, consistent with the rationale United and States much of Constitution the lead and opinion's the Wisconsin Constitution, compel the Milewskis to choose between exercising their constitutional deprivation of constitutional home. right their right to challenge property to refuse and a governmental exercising governmental entry their into their This Scylla and Charybdis, however, has seemingly been analyzed under the rubric of the "unconstitutional conditions doctrine" by the lead opinion. I am concerned with this characterization. ¶101 I concur only in the mandate principally because of the lead opinion's unprecedented decision to rely on the "unconstitutional conditions doctrine," a term absent from the briefing in this case. The perils of addressing unbriefed issues are illustrated by the lead opinion's discussion. review of existing case law demonstrates that A the unconstitutional conditions doctrine is more complex than the lead opinion's analysis suggests, and that it has most typically, if not always, according to the Supreme Court, arisen in cases which involve government benefits. See, e.g., Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct. 2586, 2594 (2013) ("We have said in a variety of contexts that 'the government may not deny a benefit to a person because he 1 No. 2015AP1523.akz exercises a constitutional right.' . . . Those cases reflect an overarching principle, known as the unconstitutional conditions doctrine, that vindicates the Constitution's enumerated rights by preventing the government from coercing people into giving them up." (emphasis added)); id. at 2596 ("Virtually all of our unconstitutional governmental conditions benefit of some cases involve kind."); a Planned gratuitous Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962, 986 (7th Cir. 2012) ("The first step in any unconstitutionalconditions claim is to identify the nature and scope of the constitutional right arguably imperiled by the denial of a public benefit." (emphasis added)); Madison Teachers, Inc. v. Walker, 2014 WI (suggesting embodies that the 99, ¶¶29-35, the principle 358 Wis. 2d 1, unconstitutional that "it is 851 conditions impermissible N.W.2d 337 doctrine for the government to condition the receipt of a tangible benefit on the relinquishment of a constitutionally protected right" (emphasis added)); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989) ("The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether." (emphasis added)).1 1 For example, the lead opinion pulls language from Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 583, 592-93 (1926). That case was an unconstitutional conditions case, but it involved a "gratuitous governmental benefit." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct. 2586, 2596 (2013). 2 No. 2015AP1523.akz ¶102 Perhaps this doctrine should be applied in this case (which does not involve a governmental benefit), but I would prefer to see briefing and argument on that question before establishing a rule in Wisconsin. Experience teaches that broad legal statements untethered to the specific facts of the case, like those present in the lead opinion's section on the unconstitutional conditions doctrine, can easily metastasize in our legal system and become "virtual engine[s] of destruction for countless legislative judgments which have heretofore been thought wholly consistent with . . . the Constitution." Weinberger v. Salfi, 422 U.S. 749, 772 (1975) (discussing the irrebuttable presumption doctrine). Judicial restraint dictates that we decide this case narrowly, especially given the numerous constitutional considerations involved.2 ¶103 Aside from this deficiency, other aspects of the lead opinion suffer from the same proclivity for overbroadness. For instance, the lead opinion is not content to reject the argument that home intrusions of the type involved under the specific facts at issue are minor; it instead concludes that no governmental entry into a home under any hypothetical set of circumstances can ever be minor. See lead op., ¶57. The statement sounds impressive, but I do not understand the need for such sweeping remarks. While 2 the lead opinion may be I do not necessarily reject all of the principles provided in the lead opinion's discussion. I simply disagree with the lead opinion's use of the unconstitutional conditions doctrine to resolve this case. 3 No. 2015AP1523.akz entirely correct, I am not willing to decide an infinite number of potential future cases without briefing and argument. To take another example, while the lead opinion could easily quote well-established Fourth Amendment maxims for some of the principles it cites in its opinion, it instead chooses to reword them in ways that could be easily misunderstood. lead op., ¶37 ("[C]onsent removes the search See, e.g., from Fourth Amendment scrutiny."). ¶104 In sum, while I would like to join the lead opinion, I cannot do so for fear of its potential effects on existing case law and the ways in which it could be cited in the future. ¶105 For the foregoing reasons, I respectfully concur in the mandate. ¶106 I am authorized to state GABLEMAN joins this opinion. 4 that Justice MICHAEL J. No. ¶107 SHIRLEY S. ABRAHAMSON, J. 2015AP1523.ssa (dissenting).1 I would affirm the judgment of the circuit court and the decision of the court of appeals in favor of the Town of Dover.2 challenged are presumed constitutional. The statutes The challengers have 1 Five justices agree with the mandate set forth in Justice Daniel Kelly's opinion (which appears as the first opinion in the instant case). The mandate is that the decision of the court of appeals is reversed and the cause is remanded. Only Justice Rebecca G. Bradley joins Justice Kelly's opinion. Chief Justice Patience D. Roggensack joins Justice Kelly's mandate, writing separately in concurrence. Justice Annette K. Ziegler (joined by Justice Michael J. Gableman) joins Justice Kelly's mandate, writing separately in concurrence. Justice Ann Walsh Bradley joins this dissent. Justice Kelly's opinion is referred to as a lead opinion because four justices do not agree with or join its reasoning. As Justice Ann Walsh Bradley recently explained in State v. Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann Walsh Bradley, J., dissenting), although "the term 'lead' opinion . . . is undefined in our Internal Operating Procedures, its use here is consistent with past description. We have said 'that a lead opinion is one that states (and agrees with) the mandate of a majority of the justices, but represents the reasoning of less than a majority of the participating justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ., concurring in part and dissenting in part) (citing Hoffer Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533)). 2 The parties disagree whether the Milewskis made a facial or an as-applied challenge to the constitutionality of the statutes. The lead opinion agrees with the Milewskis that their challenge is an as-applied challenge. Lead op., ¶¶69-71. I am not persuaded. I caution, as the United States Supreme Court has cautioned, that "the distinction between facial and asapplied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010). 1 No. not carried their heavy burden to prove 2015AP1523.ssa the statutes unconstitutional beyond a reasonable doubt.3 ¶108 The legislature has declared that if a real property owner wishes to contest the amount of an assessment at the board of review or circuit court, the property owner must, on the reasonable written request of the assessor, allow the assessor an "actual view" of the real property. See Wis. Stat. have been §§ 70.47(7)(aa), 70.32(1). ¶109 The statutory words "actual view" interpreted as including both an interior and exterior view of the real property.4 The instant case involves the Milewskis' 3 The Milewskis bear a heavy burden. See Tammy W.-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 299, 797 N.W.2d 854 ("In a facial challenge, the challenger must persuade us that the 'heavy burden' to overcome the presumption of constitutionality has been met, and that there is proof beyond a reasonable doubt that the statute is unconstitutional"); Clear Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App 15, ¶33, 374 Wis. 2d 348, 893 N.W.2d 24 (noting "the heavy burden challengers face on an as-applied equal protection claim and the strong presumption in favor of a taxing decision of government"). 4 The Wisconsin Property Assessment Manual interprets "actual view" of property to include an "interior view." See Wisconsin Property Assessment Manual at 4-3, 10-55, 21-18 to 2120 (2017). All subsequent references to the Manual are to the 2017 version. For a discussion of the Manual, see ¶¶143-145, infra. At least as early as the 1860s the legislature has required assessors to value real property upon actual view. Marsh v. Bd. of Supervisors, 42 Wis. 502, 514 (1877). The Marsh court concluded that the requirement of an actual view and the statutory enumerated factors the assessor must consider help ensure "an equal and faithful assessment of all property subject to taxation." 2 No. 2015AP1523.ssa refusing to allow the assessor to view the interior of their real property, a home. the lead opinion. I therefore focus on this issue, as does Other taxpayers may refuse to give an assessor a view of the exterior of the real property or both the exterior and interior. Substantially the same or similar issues may arise in these instances.5 ¶110 The lead opinion asserts that the legislature has conferred on the Milewskis an unconstitutional choice of Option A or Option B: ¶111 If the Milewskis choose Option A, they consent to an assessor's viewing the interior of their home (thereby forgoing their Fourth Amendment right to bar the government from their home) and can contest the amount of the assessment in a hearing before the Board of Review and a court (thereby exercising their Fourteenth Amendment due process right to a hearing to contest the amount of the assessment). ¶112 If the Milewskis choose Option B, they refuse to allow an assessor to view the interior of their home (thereby exercising their Fourth Amendment right to bar the government 5 Chief Justice Patience Roggensack's concurrence offers an unexpected and surprising interpretation of the phrases "actual view" and "view such property" in Wis. Stat. §§ 70.32(1) and 70.47(7)(aa), respectively. The concurrence contends that these phrases do not refer to an interior view of the real property. This interpretation (not proffered by the parties) does not resolve the issue of the constitutionality of the statutes at issue when the property owner does not allow an assessor a view of the exterior of the real property, which is curtilage. See Oliver v. United States, 466 U.S. 170 (1984); State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502. 3 No. 2015AP1523.ssa from their home) and cannot contest the amount of the assessment in a hearing before the Board of Review and a court (thereby forgoing their Fourteenth Amendment due process right to a hearing to contest the amount of the assessment, according to the lead opinion). ¶113 I conclude that an assessor's entry into the interior of the home is a search under the Fourth Amendment. I further conclude, as did the circuit court and court of appeals, that Wis. Stat. statutes, § 70.47(7)(aa) do not violate and the § 74.37(4)(a), Milewskis' the Fourth challenged Amendment or Fourteenth Amendment rights (or analogous state constitutional rights). ¶114 Section board of review 70.47(7)(aa) and bars a governs person proceedings who refuses before to allow the an assessor to view property from appearing or testifying before the board or contesting the amount of the assessment: (aa) No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. ¶115 Section circuit court and 74.37(4)(a) bars a governs claim or proceedings action for before an the excessive assessment unless the property owner complied with the procedure for objecting to assessments prescribed in § 70.47(7)(aa): (a) No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under 70.47(13), have been complied with. . . . 4 No. 2015AP1523.ssa ¶116 Wisconsin is not alone in tying a challenge to the amount of a property assessment to a property owner's permitting a taxing authority to view the real property.6 ¶117 Although "straightforward," discussion. the it lead opinion engages in a describes lengthy, its overly task as complex It focuses on numerous intricacies, including the special needs exception to the Fourth Amendment and the messy, ill-understood "unconstitutional conditions" doctrine.7 It misses the big picture as well as the components of the tax assessment statutes.8 ¶118 My analysis of the issues proceeds as follows: ¶119 Part I sets forth two understanding the instant case: realities essential to The Milewskis did not surrender their Fourth Amendment rights; the assessor never entered the home. process The Milewskis retain rights under the statutes to a due hearing in which to contest their assessment; they exercised these rights. 6 See, e.g., Minn. Stat. §§ 273.20, 274.01(b) (2016); Mass. Gen. Laws, ch. 58A, § 8A (2016). 7 Justice Annette Ziegler's concurrence appropriately outlines some difficulties with the "unconstitutional conditions" doctrine, but much more can be said about the unworkability of the doctrine and the flaws in the lead opinion's discussion of this doctrine. 8 "[T]he tax appeal administrative procedures of chs. 70 and 74 of the Wisconsin statutes are a highly evolved and carefully interwoven set of statutes providing a comprehensive remedy for individuals seeking redress for excessive assessments." Hermann v. Town of Delavan, 215 Wis. 2d 370, 394, 572 N.W.2d 855 (1998). 5 No. ¶120 In Part II, I examine Wis. Stat. 2015AP1523.ssa § 70.32(1) and determine that the legislative directions to assessors regarding the methods of valuation express a preference for an "actual view" of the real property, meaning the view of the interior and exterior. The lead opinion rests on a fundamental legislature's reasonable, misinterpretation of § 70.32(1). ¶121 Part III examines the constitutional inducement to property owners to consent to an assessor's actual reasonable, view of constitutional the real restraint property on the advance significant, imposing property ability to contest the amount of an assessment. provisions by legitimate a owner's The legislative governmental objectives. ¶122 In Part IV, I analogize the challenged tax statutes to Wisconsin's Implied Consent Law by which the State has imposed a choice on drivers. The effect of this constitutional choice is to discourage a driver's exercise of a Fourth Amendment right to be free from intrusive government searches of the person by a blood draw. ¶123 In Part V, I show that the challenged tax statutes are but a specific application of the unremarkable principle that a taxpayer must make full disclosure of material information to a taxing authority or face civil tax consequences for failing to divulge the information. This principle of "make a full disclosure or lose a claim or defense" also exists in other areas of the law. 6 No. 2015AP1523.ssa ¶124 Part VI concludes the analysis by probing the meaning of the mandate of the lead opinion. I ¶125 The reader should approach the instant case keeping two realities firmly in mind: ¶126 One. the Town's assessor did not enter the interior of the Milewskis' home. No search of the Milewskis' home occurred.9 And no search would have occurred without their express consent. The Milewskis did not surrender any constitutional right to be free from an unreasonable search.10 9 See lead op., ¶¶6-12. The circuit court observed that no search occurred: Circuit Court: [Milewski] here very nicely says: You can come——you can come in the yard, you can look around, but you can't go in. They don't go in, do they? Milewski's Attorney: Circuit Court: violation at all. So Milewski's Attorney: No, they do not. there's no Fourth Amendment There's no search. 10 Wisconsin Stat. § 70.05(4m) limits the availability and scope of an assessor's entry to view a property: A taxation district assessor may not enter upon a person's real property for purposes of conducting an assessment under this chapter more than once in each year, except that an assessor may enter upon a person's real property for purposes of conducting an assessment under this chapter more often if the property owner consents. A property owner may deny entry to an assessor if the owner has given prior notice to the assessor that the assessor may not enter the property without the property owner's permission. (continued) 7 No. ¶127 No assessor forced his or her way 2015AP1523.ssa into the home, enlisted the aid of law enforcement officers to enter the home, or otherwise interfered with the Milewskis' exercise of their right to deny an assessor entry into the home. occupation or entry without a warrant11 or No physical without consent occurred, was attempted, or was even contemplated.12 ¶128 Two, the Milewskis have received full due process hearings in three courts——in the circuit court, in the court of appeals, and in this court. Furthermore, the Milewskis retained and exercised rights under the statutes to a hearing in which they challenged the assessment as excessive on specified grounds. ¶129 The lead opinion misleadingly suggests that the Milewskis have been subjected to a tax and "have been forbidden any process by which to challenge it." Lead op., ¶24. Three Any request to view the interior of the property must be reasonable, made in writing, and delivered by certified mail. Wis. Stat. § 70.47(7)(aa). 11 Wisconsin Stat. § 66.0119 provides for inspection warrants" for many purposes, including assessment." "special "property In Camara v. Mun. Court, 387 U.S. 523 (1967), the Court required a municipal health inspector to obtain a warrant to conduct routine interior inspections for evidence of building code violations. 12 Compare G.M. Leasing Corp. v. United States, 429 U.S. 338, 358 (1977) (concluding that the government's nonconsensual search of a business office and seizure of furnishings, books, and records contained therein was unreasonable and in violation of the Fourth Amendment absent a warrant or exigent circumstances). 8 No. courts have addressed the Milewskis' 2015AP1523.ssa objections to the assessment of their home and their challenge to the statutes at issue. The Milewskis went the "whole nine yards" and lost on the merits in two courts. ¶130 Moreover, the lead opinion misleadingly suggests that as a result of the challenged statutes, the Milewskis lose "the ability to contest their increased tax burden." n.9, 68. actual Lead op., ¶¶24 But property owners who refuse to allow an assessor an view of the real property may nevertheless avail themselves of procedures to challenge the legitimacy, nature, and scope of the assessment. ¶131 Indeed, statutory excessive. right The the to a Milewskis hearing Milewskis availed themselves challenging brought the claims Appraisal Service, LLC, the Town's assessor. of their assessment against as Gardiner They had a due process hearing in circuit court in which they sought damages from the Town's assessor on a claim of excessive assessment and retaliation or coercion.13 See Wis. Stat. § 70.503.14 13 The Wisconsin statutes include protection against intentional (retaliatory) assessments. Should an assessor attempt to punish a property owner by imposing a punitive assessment, the assessor risks not only a fine but liability for the amount of the excess tax imposed on the property owner. 14 Wisconsin Stat. § 70.503 provides for civil liability of an assessor as follows: Civil liability of assessor or member of board of review. If any assessor, or person appointed or designated under s. 70.055 or 70.75, or any member of the board of review of any assessment district is guilty of any violation or omission of duty as specified in ss. 70.501 and 70.502, such persons shall (continued) 9 No. ¶132 The dismissal of court these of appeals affirmed retaliatory the 2015AP1523.ssa circuit claims assessment court's against Gardiner Appraisal Service, holding that there was no evidence that Gardiner Appraisal Service intentionally violated the law by performing the assessment in a retaliatory manner.15 The Milewskis did not seek review of this dismissal in this court. ¶133 Property owners also have the right to a due process hearing if they claim that the request to view the interior of the real property was §§ 70.05(4m), 70.47(7)(aa). unreasonable. See Wis. Stat. The Milewskis do not assert that be liable in damages to any person who may sustain loss or injury thereby, to the amount of such loss or injury; and any person sustaining such loss or injury shall be entitled to all the remedies given by law in actions for damages for tortious or wrongful acts. . . . Wisconsin Stat. § 70.501 forfeiture to the state: provides for an assessor's Fraudulent valuations by assessor. Any assessor, or person appointed or designated under s. 70.055 or 70.75, who intentionally fixes the value of any property assessed by that person at less or more than the true value thereof prescribed by law for the valuation of the same, or intentionally omits from assessment any property liable to taxation in the assessment district, or otherwise intentionally violates or fails to perform any duty imposed upon that person by law relating to the assessment of property for taxation, shall forfeit to the state not less than $50 nor more than $250. 15 See Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op., ¶¶22-25 (Wis. Ct. App. May 4, 2016). 10 No. the assessor's written request to view their 2015AP1523.ssa real property violated the statutory requirements.16 ¶134 To be clear, the Milewskis were afforded due process of law. The Milewskis that challenged led to in the the assessment courts of the their tax assessment system real property. The Milewskis also had statutory rights to the Board of Review's determination of whether the assessment of their property was excessive and retaliatory and whether the request for an actual view of their property violated statutory requirements. ¶135 Two occurred. they realities: No search of the Milewskis' home The Milewskis had a hearing under the statutes, and challenged the assessment as excessive in court proceedings. II ¶136 The task of prescribing a uniform method for valuing property for taxation purposes lies with the legislature. Since the 19th century, the legislature has directed assessors how to value real property. The present statute is Wis. Stat. § 70.32(1). 16 Any request to view the property must be reasonable, made in writing, and delivered by certified mail. Wis. Stat. § 70.47(7)(aa). The Milewskis do not assert that they were unable to permit a view at the suggested time. Indeed, had this been their reason for refusing the assessor a view of the interior of the home, the Milewskis would have been given a chance to reconsider their refusal, even after seeing the proposed assessment. See Wisconsin Property Assessment Manual at 21-16. 11 No. ¶137 The lead opinion rests on a 2015AP1523.ssa fundamental misinterpretation of Wis. Stat. § 70.32(1). ¶138 The lead opinion concludes that an assessment can be based either on an actual view or on the best information that the assessor can practicably obtain, and that the legislature has not expressed a preference for one method over the other. The inevitable result of this reading is that the property owner can dictate the valuation methodology by refusing to allow an assessor an actual view of the real property. ¶139 The lead opinion at ¶51 reaches this interpretation by relying solely on the text of the phrase "from actual view or from the best information that the assessor can practicably obtain" in the first sentence of Wis. Stat. § 70.32(1): 70.32 Real Estate, How Valued (1) Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under [Wis. Stat. §] 73.03(2a) from actual view or from the best information that the assessor can practicably obtain . . . . (Emphasis added.) ¶140 This narrow, either/or reading of the statute based on the text of only one phrase in a lengthy statutory provision contravenes the basic rule of statutory interpretation that a statute be interpreted in context.17 Rather than reading this phrase in isolation, it should be read in the context of the entire section, in the context of the tax assessment statutes, 17 See Wis. Carry v. City of Madison, 2017 WI 19, ¶20, 373 Wis. 2d 543, 892 N.W.2d 233 ("We examine the statute's contextualized words, put them into operation, and observe the results to ensure we do not arrive at an unreasonable or absurd conclusion."). 12 No. 2015AP1523.ssa in the context of prior judicial interpretation of the statute, and to avoid unreasonable or absurd consequences.18 has instructed that the appropriate valuation This court methodology is determined by looking "at the governing statutes, reviewed in conjunction with basic principles of real property assessment as described by case law, treatises, and the [Wisconsin] Property Assessment Manual."19 ¶141 Section 70.32(1) of the Wisconsin Statutes provides in full as follows: Wis. Stat. § 70.32 (1) Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03(2a) from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value, the assessor shall consider recent arm's-length sales of the property to be assessed if according to professionally acceptable appraisal practices those sales conform to recent arm's-length sales of reasonably comparable property; recent arm's-length sales of reasonably comparable property; and all factors that, according to professionally acceptable appraisal practices, affect the value of the property to be assessed. (Emphasis added.) ¶142 A reading of the full text of Wis. Stat. § 70.32(1) demonstrates that the legislature has given assessors several instructions about valuation of real property that inform the 18 See, e.g., Berkos v. Shipwreck Bay Condo. Ass'n, 2008 WI App 122, ¶8, 313 Wis. 2d 609, 758 N.W.2d 215 ("Also relevant to a statute's plain meaning is prior case law interpreting the statute.") 19 Walgreen Co. v. City of Madison, 2008 WI 80, ¶19, 311 Wis. 2d 158, 752 N.W.2d 687. 13 No. 2015AP1523.ssa interpretation of the statute's phrase "actual view or from the best information that the assessor can practicably obtain": • The legislature has instructed assessors to value real property according to the Wisconsin Property Assessment Manual. • The legislature has instructed assessors to value real property according to "professionally acceptable appraisal practices." • The legislature has instructed assessors to use a hierarchy of valuations to value real property. • As judicially interpreted, the legislature has expressed a preference for valuation on the basis of an actual view legislature has of the real recognized property, that although valuation the requires attention to other enumerated statutory factors and the judgment and expertise of the assessor. ¶143 The first statutory direction to assessors in Wis. Stat. § 70.32(1) is that real property be valued in the manner specified in the Wisconsin Property Assessment Manual. Manual is published annually by the Department of Revenue. legislature envisions the Manual as setting forth The The accepted assessment methods and reflecting advances in the science of assessment, court decisions, and other information considered valuable to local assessors. Wisconsin Stat. § 73.03(2a) provides in relevant part as follows: The manual shall discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level. The 14 No. 2015AP1523.ssa manual shall be amended by the department from time to time to reflect advances in the science of assessment, court decisions concerning assessment practices, costs, and statistical and other information considered valuable to local assessors by the department. ¶144 Assessors must adhere to the Manual, but when an assessment is based on a directive in the Manual that does not properly interpret Wisconsin law, the assessment may be erroneous as a matter of law.20 ¶145 The Wisconsin Property Assessment Manual mandates that "actual view requires a detailed viewing of the interior and exterior of all buildings and improvements and the recording of complete cost, age, use, and accounting treatments." Wisconsin Property Assessment Manual at 10-55.21 view requirement makes sense. See This interior The assessor hired by the Town of Dover in the instant case asserts that the interior of a home constitutes about 70% of its value.22 20 Metro. Holding Co. v. Bd. of Review, 173 Wis. 2d 626, 632, 495 N.W.2d 314 (1993). 21 That an actual view requires an assessor to view the interior of real property is an observation echoed throughout the Wisconsin Property Assessment Manual. For example, at 6-12, the Manual explains that "data collected on each property should be complete, accurate, and consistent," requiring, inter alia, that the assessor "[v]iew the interior of the building, recording physical data." The Manual explains further that "[p]hysical characteristics such as age, condition, design, layout, quality of construction materials, and workmanship all have an effect on the value of improvements." Wisconsin Property Assessment Manual at 9-20. These characteristics necessarily depend on an interior view. 22 Gardiner Appraisal Service is a party in the instant case and filed a brief. 15 No. 2015AP1523.ssa ¶146 The lead opinion maintains that there is no need for an interior inspection of the Milewski home. Wrong! Lead op. ¶¶51-52. There is! ¶147 An assessor for the Town of Dover was last in the interior of the Milewskis' residence in 2004. According to its affidavit, Gardiner Appraisal Services could not verify whether any remodeling had been performed since then. Thus, when the assessor attempted to set a valuation for the Milewskis' house without an determine interior the inspection, effective he physical, "could not functional accurately and economic obsolescence of the structure, curable or non-curable. . . . single remodel project, like a kitchen or bath, could A have significantly increased the value of the home."23 ¶148 A second reason a view of the interior of the Milewskis' home was especially crucial is that the Town was conducting a full revaluation of all real property in the Town's jurisdiction. the real 70.05(5). A full revaluation refers to an assessment of all property in the Town. See Wis. Stat. §§ 70.045, A full revaluation is required periodically "to meet the requirements of fair and uniform assessment." Wisconsin Property Assessment Manual at 4-1. ¶149 Accordingly, Gardiner Appraisal the assessor Services, in performed the the instant appraisal case, of the Milewskis' house while doing a full revaluation of all the real property in the Town of Dover 23 to establish new, equitable Defendant-Respondent, Gardiner Appraisal Service, LLC's, Response Br. at 8. 16 No. assessments between for the required, all Town inter real of properties. Dover alia, and that The written contract Appraisal Gardiner "[the] 2015AP1523.ssa Services assessor[] will view the exterior and interior of all structures unless denied access after mailing a request to owner by certified mail." ¶150 Requiring assessors to undertake an actual view of the real property application in of a revaluation Wis. Stat. is a valid § 70.32(1), and the reasonable Manual, and § 70.32(1) to professional appraisal practices. ¶151 The second direction in Wis. Stat. assessors regarding valuation is that the assessors comply with "professionally the acceptable importance of the appraisal practices." phrase, the Emphasizing statute references "professionally acceptable appraisal practices" three times. In its last use of the phrase, Wis. Stat. § 70.32(1) explicitly states that "[i]n determining the value . . . the assessor shall consider . . . all factors that, according to professionally acceptable appraisal practices, affect the value of the property to be assessed." ¶152 The Department of Revenue is directed to illustrate accepted assessment methods in the Manual. Wis. Stat. § 70.03(2a). ¶153 Viewing "professionally Appraisal the interior acceptable Service's brief of a appraisal and 17 building is surely practice." affidavit cite a Gardiner (and include No. 2015AP1523.ssa excerpts from) the Appraisal Institute's24 text Appraisal of Real Estate at 219-20 (14th ed. 2013), which Gardiner Appraisal Services describes as "a widely accepted treatise on assessment methods."25 ¶154 The text states that "the importance of a site visit should not be during a site underestimated." visit is to An appraiser's write a primary "thorough task building description" that "helps the appraiser identify the extent and 24 The Appraisal Institute describes itself as "the world's leading organization of professional real estate appraisers," and "has led the way in fostering and promoting the highest standards of [appraisal] practice through its designation programs, peer review process, education, research and publishing endeavors." See http://www.appraisalinstitute.org/about/. 25 This text has been cited in numerous Wisconsin cases in which an appraisal or appraisal technique has been at issue. See, e.g., Walgreen Co. v. City of Madison, 2008 WI 80, ¶3, 311 Wis. 2d 158, 164–65, 752 N.W.2d 687, 690 ("This holding is consistent with the nationally recognized principle that '[a] lease never increases the market value of real property rights to the fee simple estate.' Appraisal Institute, The Appraisal of Real Estate 473 (12th ed. 2001)."); ABKA Ltd. P'ship v. Bd. of Rev. of Vill. of Fontana-on-Geneva Lake, 231 Wis. 2d 328, 354, 603 N.W.2d 217 (1999) (Wilcox, J., dissenting) (citing The Appraisal Institute, The Appraisal of Real Estate 478 (11th ed. 1996)); Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 781, 580 N.W.2d 644 (1998) (citing The Appraisal Institute, The Appraisal of Outdoor Advertising Signs (1994)). See also Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶114 n.29, 294 Wis. 2d 441, 717 N.W.2d 803 (Abrahamson, C.J., dissenting) (citing Ron L. Nation & Donald P. Oehlrich, The Valuation of Billboard Structures, The Appraisal Journal, Oct. 1999, at 242 (publication of the Appraisal Institute). Reference was also made to another Appraisal Institute publication titled Summary Appraisal Report: Residential (2013) for similar statements. 18 No. quality of identify building physical improvements, deterioration calculate and 2015AP1523.ssa their functional cost, and obsolescence." The Appraisal of Real Estate at 220-21. ¶155 Further emphasizing the importance of an exterior and interior view of real property as a professionally acceptable appraisal practice, the text goes on to explain that if a site visit was not made, the appraisal report must clearly and conspicuously describe the "extraordinary assumption that the site and building characteristics are as described even though the appraiser has not confirmed that information through a site visit." The Appraisal of Real Estate at 220. ¶156 This conducted supports expressed, without the an exterior proposition professionally explicit accepted that distrust and an appraisal of an view interior on-site appraisal strongly inspection practice; valuations is a made without on-site inspections should be the exception and not the rule for professional appraisers.26 ¶157 An building is, actual view without of the question, interior a and exterior professionally of a acceptable appraisal technique. ¶158 The third legislative direction in Wis. Stat. § 70.31(1) to assessors regarding valuation of real property is that they comply with the hierarchy of valuation methodologies. 26 Fannie Mae, to which the Gardiner Appraisal Services affidavit refers, also requires the inspection of the interior and exterior of a building for an appraisal. See Fannie Mae, "Appraisal and Property Report Policies and Forms Frequently Asked Questions (FAQs)" at 4. 19 No. 2015AP1523.ssa Assessors are obligated to follow what is known as the Markarian three-tier hierarchy to value real property.27 Markarian (1970). v. City of Cudahy, 45 See State ex rel. Wis. 2d 683, 173 N.W.2d 627 The hierarchy set forth in § 70.32(1) and case law is as follows. ¶159 First tier: the An assessor must base the assessment of subject on property property, if available.28 a recent arm's-length sale of the This is perhaps the only assessment methodology that does not rely on data gleaned from an actual view of the real property. ¶160 Of course, a recent arm's-length sale ordinarily represents a consideration by the buyer of the interior and exterior of the real property. would inspect seller's pulled the real representations for the home, Rational prospective homebuyers property of the or the and home, not simply rely the record of assessed value of on a permits similar properties. 27 "'An assessor has an obligation to follow the three tier assessment analysis.'" Regency West Apartments LLC v. City of Racine, 2016 WI 99, ¶26, 372 Wis. 2d 282, 888 N.W.2d 611 (quoting Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶47, 294 Wis. 2d 441, 717 N.W.2d 803). See also Wisconsin Property Assessment Manual at ch. 9. 28 See Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Evidence of an arms-length sale of the subject property is the best evidence of true cash value.") (citing State ex rel. Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)). 20 No. ¶161 Second Tier: sold, an assessor 2015AP1523.ssa If the subject property was not recently must base the assessment of the subject property on sales of reasonably comparable property. ¶162 The sales comparison approach is "based on the premise that similar properties will sell for similar prices on the open market." Wisconsin Property Assessment Manual at 9-24. The Manual requires using the sale price of properties that are "similar to the subject property in age, condition, use, type of construction, location, design, physical features and economic characteristics." Wisconsin Property Assessment Manual at 9-24. An important consideration in determining whether properties are comparable is the improvements.29 ¶163 Third Tier: If no sales of reasonably comparable properties are available, an assessor may assess the subject property using other assessment methodologies, such as cost and income.30 In assessing under this tier, an assessor may consider 29 Rosen v. City of Milwaukee, 72 Wis. 2d 653, 686, 242 N.W.2d 681 (1976) ("Important considerations in determining whether particular property is sufficiently similar to the property being assessed to warrant reliance on its sale price as evidence of market value include its location, including the distance from the assessed property, its business or residential advantages or disadvantages, its improvements, size and use."). 30 See, e.g., Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Only if there has been no arms-length sale and there are no reasonably comparable sales may an assessor use any of the third-tier assessment methodologies.") (citing State ex rel. Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)); Great Lakes Quick Lube, LP v. City of Milwaukee, 2011 WI App 7, ¶¶17-18, 331 Wis. 2d 137, 794 N.W.2d 510 (citing Allright Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶11, 317 Wis. 2d 228, 767 N.W.2d 567). 21 No. 2015AP1523.ssa "all the factors collectively which have a bearing on value of the property Markarian, in 45 order to Wis. 2d at determine 686. its fair-market Gardiner Appraisal value." Services asserts that without accurate information from an interior view of the real property, it "is not possible to do an accurate cost, market, or income approach to valuation." ¶164 A final direction to assessors comes from case law interpreting court has Wis. Stat. recognized § 70.32(1) that the and its precursors. legislature has The expressed a preference for assessments based on an actual view of the real property valuation and that requires the legislature attention to has other also concluded enumerated that statutory factors and requires the judgment and expertise of the assessor. ¶165 In the 1860s, the precursor to Wis. Stat. § 70.32(1) referred to an "actual view" and enumerated various factors to be considered in valuation, including "all "improvements of every description thereon."31 buildings" and The disjunctive 31 See Wis. Stat. ch. 18, § 31 (1871) (cited in March v. Board of Supervisors, 42 Wis. 502 (1877)). This statute states that real property shall be valued by the assessor from actual view and does not mention an alternative "best information" but enumerates factors to be considered. It provides as follows: § 31. Real property shall be valued by the assessor from actual view at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desires to sell, would accept in full payment. In determining the value the assessors shall consider as to each piece, its advantage or disadvantage of location, quality of soil, quantity and quality of standing timber, water privileges, mines, minerals, quarries, or other valuable deposits known to be available therein, and all buildings, fixed machinery (continued) 22 No. phrase "or from the best information that the 2015AP1523.ssa assessor can practicably obtain" was later added to the statute.32 ¶166 In disjunctive considering phrase, the the statute that court accepted the included idea the that the legislature expressed a preference for an actual view. The court the did assessor not, failed however, to invalidate undertake an the actual assessment view. when The court acknowledged that "[i]t may be that a valuation from actual view is always possible, but it is not always practicable." Boorman and improvements of every description thereon, and their value. Real property held under lease from any religious, scientific, literary or benevolent association, but otherwise exempt, shall be assessed to the lessee. The assessor having fixed the value shall enter the same opposite the proper tract in the assessment roll. Property omitted from assessment the previous year by mistake, shall be entered twice, designating one entry as omitted for the year 18——. (Emphasis added.) 32 See Wis. Stat. ch. 48, § 1052 (1889), which provides as follows: Real property shall be valued by the assessor either from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value the assessor shall consider, as to each piece, its advantage or disadvantage of location, quality of soil, quantity of standing timber, water privileges, mines, minerals, quarries, or other valuable deposits known to be available therein, and their value. Real property held under lease from any religious, scientific, literary or benevolent association, but otherwise exempt, shall be assessed to the lessee. The assessor, having fixed the value, shall enter the same opposite the proper tract or lot in the assessment roll. (Emphasis added.) 23 No. 2015AP1523.ssa v. Juneau County, 76 Wis. 550, 553, 45 N.W. 675 (1890). The Boorman court surmised that the assessor was acquainted with the property from prior years.33 ¶167 In sum, Wis. Stat. § 70.32(1) addresses and provides direction to assessors regarding the methodology of valuation. With its explicit reference to "actual view"; its references to the Wisconsin Property Assessment Manual, "professionally acceptable appraisal practices," and the hierarchy of assessment methodologies; and its longstanding judicial interpretation, Wis. Stat. § 70.32(1) suggests a preference for actual view in an assessment——meaning interior and exterior view——and at the same time empowers assessors to use their judgment and expertise within the parameters set forth in the statute. ¶168 The lead opinion's narrow, either/or reading of Wis. Stat. § 70.32(1) breaches a contextual reading and breaks with precedent. The lead opinion's allowing the property owner in effect dictate to the valuation methodology impairs the functioning of the tax assessment system. ¶169 Because the legislature has established a preference for an actual view in valuation of real property, the legislature has also attempted to influence a property owner to 33 More recently, the court of appeals concluded that an actual view was not required to conduct a comparable sales analysis because the village assessor had been familiar with the subject properties for 14 years. State ex rel. Kesselman v. Bd. of Review, 133 Wis. 2d 122, 133, 394 N.W.2d 745 (Ct. App. 1986). In Kesselman, "[t]he circuit court found that the assessor failed to use the 'best information' available . . . because he used only a drive-by inspection . . . ." Kesselman, 133 Wis. 2d at 126-27. 24 No. 2015AP1523.ssa permit an assessor an actual view of the real property. Indeed, the legislature's decision to induce real property owners to permit an assessor's actual view supports the proposition that the legislature prefers that assessors have an actual view of the real property. III ¶170 To advance the significant, legitimate governmental objective of uniformity and equity, the legislature has provided a reasonable, constitutional inducement to property owners to consent to an assessor's actual view of the real property: The legislature imposes a reasonable, constitutional limit on the ability of assessment a if property the owner property to owner contest the prevents amount the of assessor an from having an actual view of the real property. ¶171 I uniformity. turn to the state constitutional that of The Uniformity Clause of the Wisconsin Constitution dates back to the 1848 Constitution. part requirement "[t]he rule of taxation It provides in relevant shall be uniform but the legislature may empower cities, villages or towns to collect and return taxes on methods. . . . " real estate located therein Wis. Const. art. VIII, § 1. by optional See lead op., ¶3. ¶172 The Uniformity Clause requires that taxes be fairly allocated among taxpayers. Comparable district are to be assessed uniformly.34 34 properties in the "The purpose of the Clear Channel Outdoor, Inc. v. City of Milwaukee, 374 Wis. 2d 348, ¶37, 374 Wis. 2d 348, 893 N.W.2d 24 (quoting U.S. Oil Co., Inc. v. City of Milwaukee, 2011 WI App 4, ¶25, 331 Wis. 2d 407, 794 N.W.2d 904 (2010)). 25 No. Uniformity Clause is to ensure the tax burden 2015AP1523.ssa is allocated proportionally to the value of each person's property." Lead op., ¶47. ¶173 The Uniformity Clause requires the stick to be applied to comparable properties. same measuring "Satisfying the Uniformity Clause requires . . . a uniform method of determining the value of [] property . . . . " ¶174 The valuation of Lead op., ¶48. real property depends to a large extent on the condition and quality of both the exterior and interior of the real property. actual view strongly Thus, the requirement of an relates to the state constitutional requirement of uniformity. ¶175 Inaccuracy in the assessment of a parcel of real property may result in inaccurate, and potentially unjust, tax assessments of jurisdiction. other real properties in that taxing See lead op., ¶¶47-48; Noah's Ark Family Park v. Bd. of Review, 210 Wis. 2d 301, 310-12, 565 N.W.2d 230 (Ct. App. 1997) (Ct. App. op. adopted as op. of the Wisconsin Supreme Court, 216 Wis. 2d 387, 390, 394, 573 N.W.2d 852 (1998)). ¶176 The lead opinion asserts that the Town "contradict[s] itself" by arguing "actual view" Milewski real Lead op., ¶51. and that then property the Uniformity nevertheless using other Clause proceeds assessment requires to assess an the methodologies. The lead opinion concludes that "[i]f proceeding under this alternative was not consistent with the Uniformity Clause, then the constitution . . . ." Town indicts itself Lead op., ¶51. 26 for violating the No. ¶177 The lead opinion stumbles. contradictory: using an 2015AP1523.ssa The Town's argument is not Once the Town proceeded to assess real property "actual view," it applied the same methodology throughout the Town complying with the Uniformity Clause and the revaluation process. The Milewskis prevented the use of the same methodology for their property. When the Milewskis refused to allow the assessor an actual view of the real property, they prevented the Town from complying with the mandate under the Uniformity Clause to apply a uniform method of valuation. prevented the Town owners similarly. from treating similarly situated They property The Town had no choice but to use a different method for valuing the Milewskis' real property. ¶178 The property. Town must nevertheless assess the Milewskis' The Milewskis cannot escape assessment and taxation by refusing to allow the assessor to view the interior of the real property. To assess the Milewskis' real property, the Town was use forced [could] to practicably the "best obtain" information in that accordance the with assessor Wis. Stat. § 70.32(1). ¶179 To achieve even-handedness among real property owners when a property owner refuses to allow an assessor an actual view of the real property, the legislature imposes reasonable, constitutional restrictions on the ability of property owners to contest the describes property amount achieving owners in of an this terms assessment. goal of of 27 Town even-handedness avoiding follows: The the of Dover among "free-rider" real as No. 2015AP1523.ssa If most homeowners allow the assessor into their homes to get an accurate assessment, but some homeowners are allowed to force the assessor to make his or her assessment without that crucial information and are still allowed to try to decrease their assessment by challenging it in other respects, the probable consequence is that wealthy homeowners will be able to avoid paying their fair share of taxes by hiding their interior improvements.35 ¶180 Unless the assessor has access to the interior of the real property, the taxing entity is at a significant disadvantage in justifying its assessment when challenged by the property owner. ¶181 When a property owner challenges an assessment, there is a rebuttable presumption that the assessment is correct.36 If the property owner shows that the assessor has not adhered to the statutes or the property owner presents significant contrary evidence that establishes it is more probable than not that the assessed value is not correct, the presumption ceases to apply.37 ¶182 In the instant situation, the property owners (and their expert) know the interior of the real property but the Town (and its expert) do not. If the Town does not have evidence regarding the interior of the real property, the Town 35 Brief of Defendant-Respondent Town of Dover and Board of Review for the Town of Dover at 17. 36 Walgreen Co. v. City of Madison, 2008 WI 80, ¶17, 311 Wis. 2d 158, 752 N.W.2d 687; Adams Outdoor Advertising, Ltd. v. City of Madison, 2006 WI 104, ¶26, 294 Wis. 2d 441, 717 N.W.2d 803. 37 Wis. Stat. § 70.47(13); Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶9, 351 Wis. 2d 439, 839 N.W.2d 893 (citing Wis. Stat. § 903.01 for the proposition that an evidentiary presumption shifts the burden to the challenger). 28 No. cannot rebut the property owners' evidence. 2015AP1523.ssa To avoid this situation, the legislature has restricted the property owner's ability to contest the amount of the assessment if the property owner refuses the assessor an actual view. ¶183 According to the lead opinion, a property owner can, without any adverse consequences, refuse an assessor an actual view of the real property and apparently can still contest the amount of the assessment. property owner and the The result is two-fold: Town (which represents all (1) The property owners) are not on an equal, fair, level "playing field" in debating the amount of the assessment; and (2) the decision maker will not have the full information that the assessor could provide (if he or she had an actual determine the amount of the assessment. view) upon which to As the court of appeals concluded, "[t]he interior view of the home is one of the most important pieces of evidence that the tax assessor must consider when making an assessment. No other means are as effective to provide an accurate valuation." Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op., ¶19 (Wis. Ct. App. May 4, 2016). ¶184 An assessment decision resting on only one side's (the property owner's) presentation of evidence relating interior of the property is very apt to be erroneous. to the The law recognizes the importance of a decision's being based on full 29 No. and complete property owner information.38 who refuses Restricting the assessor the an 2015AP1523.ssa ability actual of view a to contest the amount of the assessment is thus necessary to assure that both the property owner and the taxing entity have equal access to material information and that the decision maker has this information to enable it to establish a just and equitable assessment. ¶185 The lead opinion asserts that the Milewskis may suffer adverse consequences, "substantial impediments," and "evidentiary consequences" as a result of refusing the assessor an actual view, but the lead opinion does not reveal them; they are kept a secret, not to be divulged by the lead opinion. See lead op., ¶26 n.11. See also my discussion in Part VI of this dissent, that asserting the meaning of the mandate is clandestine. ¶186 Of course, the legislature could have chosen a different path to restrict the non-consenting property owner's rights to contest the amount of an assessment. legislature could have permitted the For example, the non-consenting property owner to appear before the board to contest the amount of the assessment but could have barred him or her from submitting any evidence relating to the interior of the real property. 38 See, e.g., Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980) ("The responsibility of the sentencing court is to acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing [the] sentence."). 30 No. ¶187 Without consenting such property evidence, owner's legislature's consenting simply property assessment. owner all challenge assessment would be dismissed. the in 2015AP1523.ssa likelihood, to the the amount non- of the The result would be the same as barring from from the contesting outset the the amount non- of the The legislature's decision to bar a non-consenting property owner from contesting the amount of the assessment is different in form, but not in substance, from barring a nonconsenting property owner from introducing evidence. The legislature has made a sound, constitutional policy choice that this court should not overturn. ¶188 In sum, an interior (and exterior) view of real property (an actual view) is germane to, and has an extremely powerful nexus with, valuation and assessment. has a strong interest in inducing real The legislature property owners to consent to an assessor's actual view of the real property and to treat property owners who do consent differently in contesting the amount of an assessment from property owners who do not consent. The challenged statutes compellingly relate to the governmental interest of uniform taxation and fairness to all property owners. ¶189 With the robust government interest in uniformity and fairness in mind, I examine the Fourth and Fourteenth Amendments. ¶190 To recap, according to the lead opinion, the statutes force an unconstitutional choice on property owners: On the one hand, consent to an assessor's viewing the interior of a home 31 No. 2015AP1523.ssa (relinquishing a protected Fourth Amendment right) and retain the right to a hearing in which to contest the amount of the assessment (a procedural due process right), and on the other hand, refuse to consent to an assessor's viewing the interior of a home (maintaining a protected Fourth Amendment right) and relinquish the right to a hearing in which to contest the amount of the right). assessment (relinquishing a procedural due process I disagree with this portrayal of a constitutional dilemma. ¶191 As noted above, there was no search, and the Milewskis have had due process hearings in which they have asserted their challenge to the assessment and the statutes. ¶192 Moreover, the touchstone of the Fourth Amendment is reasonableness. (2006). Brigham City v. Stuart, 547 U.S. 398, 403 Not all searches violate the Fourth Amendment, only unreasonable ones. The determination of whether a particular search is reasonable must be made by "balancing its intrusion on the individual's Fourth Amendment interests promotion of legitimate governmental interests." against its Delaware v. Prouse, 440 U.S. 648, 654 (1979).39 ¶193 Recently, the United States Supreme Court explained the reasonableness standard in Fourth Amendment jurisprudence 39 Ohio v. Robinette, 519 U.S. 33, 39 (1996) ("Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances."); State v. Gaulrapp, 207 Wis. 2d 600, 607, 558 N.W.2d 696 (Ct. App. 1996) ("[T]he Fourth Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances."). 32 No. and the balancing of the intrusion and 2015AP1523.ssa the governmental interests as follows: Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions [a blood draw] that are "reasonable" in that they have a "nexus" to the privilege of driving and entail penalties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21–27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016). ¶194 The challenged statutes do not require a property owner to relinquish a Fourth Amendment right by permitting an assessor's entry into the home. ¶195 Rather, the statutes offer the property owner an incentive, an inducement, to consent to an assessor's entry into the home. An entry in the home is an intrusion. But the level of intrusion for tax assessment purposes is less of an intrusion on personal privacy and dignity than other searches. ¶196 A tax assessor would not be rummaging through a real property owner's personal closets, medical cabinets, effects, drawers, file cabinets, locked cabinets computers, or other private materials not germane to valuing the physical attributes of the real property. Moreover, the amount of time taken by an assessor to view the home is ordinarily much shorter than the time taken in a search conducted in the course of a criminal 33 No. investigation.40 2015AP1523.ssa In an assessment search, the property owner is not singled out as the object of official suspicion. seized. Nothing is The property owner is given advance notice and the entry is at a convenient time for the property owner. The property owner may remove or conceal any personal effects before the assessor arrives. ¶197 The legislature's inducement to obtain the property owner's consent to the assessor's entry is to require the nonconsenting property owner to forgo a hearing at which the owner may contest the amount of the assessment. more than reasonable in light of the The inducement is governmental interests involved. ¶198 In examining the procedural due process issue the lead opinion raises, I note that the touchstone of procedural due process is that due process is "flexible and requires only such procedural protections as the particular situation demands."41 "Since the time of [its] early explanations of due process," the 40 "[T]he purpose for the [governmental] interference bears upon the intrusiveness of government action. A criminal investigation is generally more intrusive than an administrative or regulatory investigation . . . ." Widgren v. Maple Grove Twp., 429 F.3d 575, 584 (6th Cir. 2005) (citing 5 Wayne R. LaFave et al., Search and Seizure: A Treatise on the Fourth Amendment § 10.1(b) (4th ed. 2004)). 41 State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 512, 261 N.W.2d 434, 444 (1978) ("[D]ue process is satisfied if the statutory procedures provide an opportunity to be heard in court at a meaningful time and in a meaningful manner. . . . Due process is flexible and requires only such procedural protections as the particular situation demands.") (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 34 No. 2015AP1523.ssa United States Supreme Court has "understood the core of the concept to be protection against arbitrary action."42 The challenged statutes are not arbitrary; they are reasonable and germane to significant governmental interests. ¶199 As discussed above, the parties will not be on an equal footing at a hearing to determine the assessment if the Town will not have information about the interior of the real property to defend its assessment. The decision maker will not have the benefit of full information upon which to establish an assessment. The non-consenting property owner may thus be able to distort its assessment to the detriment of the other property owners and to impinge on the Town's ability to comply with the Uniformity Clause. ¶200 The legislative restriction upon the Milewskis' right to contest the amount of the assessment is more than reasonable under the circumstances. The statutes do not impose an arbitrary restriction on the property owner and do not violate due process. Considering the countervailing governmental interest in uniform taxation, the challenged statutes do not constitute government action arbitrarily limiting the Milewskis' due process rights. ¶201 In sum, bearing in mind the interests of the real property owner and the public, I conclude that the options the 42 Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998); accord Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against arbitrary action of government."). 35 No. legislature offered to the Milewskis do not 2015AP1523.ssa impair, to an appreciable extent, the rights involved and do promote, to an appreciable extent, weighty governmental interests. IV ¶202 I conclude that the options the legislature offers the property "tough" owner are choices. constitutionally I analogize the sound government-imposed challenged statutes to Wisconsin's Implied Consent Law, Wis. Stat. § 343.305. ¶203 Tough choices, even choices that discourage the exercise of a Fourth Amendment right, are common in the law and are viewed as voluntary and constitutionally valid: The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.43 The lead opinion apparently refuses to accept that such a choice is valid. See, e.g., lead op., ¶68 n.29. ¶204 In Wisconsin's Implied Consent Law, the State imposes a choice on drivers. The choice has the effect of discouraging 43 McGautha v. California, 402 U.S. 183, 213 (1971), reh'g granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S. 941 (1972) (internal quotation marks and citations omitted) ("The contention is that where guilt and punishment are to be determined by a jury at a single trial the desire to address the jury on punishment unduly encourages waiver of the defendant's privilege to remain silent on the issue of guilt, or, to put the matter another way, that the single-verdict procedure unlawfully compels the defendant to become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him."). 36 No. 2015AP1523.ssa the exercise of a Fourth Amendment right to be free from a government search of a person's body. The Wisconsin Implied Consent Law is constitutional.44 ¶205 Under the Wisconsin Implied Consent Law, a driver faces the "difficult choice" between consenting to a blood draw or refusing to consent to a blood draw and facing revocation of the driver's license evidence" at trial.45 and the prosecution's use of "refusal See State v. Padley, 2014 WI App 65, ¶27, 354 Wis. 2d 545, 849 N.W.2d 867.46 A blood draw is a search 44 See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013) ("States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense."); Birchfield, 136 S. Ct. at 2185 ("Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply . . . and nothing we say here should be read to cast doubt on them."). 45 The use of refusal evidence at trial has been held not to violate due process. North Dakota v. Neville, 459 U.S. 553 (1983); State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980); State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (1986). 46 Although the Implied Consent Law seeks waiver of a Fourth Amendment right in exchange for retaining the "privilege of an operator's license," and, according to the lead opinion, the tax assessment system seeks waiver of a Fourth Amendment right in exchange for retaining a due process right to challenge the assessment, the analogy is apt. (continued) 37 No. under the integrity" Fourth and Amendment. "implicates It an is "an invasion individual's deep-rooted expectations of privacy." 2015AP1523.ssa most of bodily personal and Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (internal quotation marks and quoted source omitted). ¶206 The Wisconsin property tax assessment system is, in many ways, Law. An strikingly entry into similar a home, to Wisconsin's like a blood Implied draw, Consent implicates significant privacy concerns; both are intrusions restricted by the Fourth Amendment. Implied Consent consequences, if Law the Both the tax assessment system and the impose civil individual consequences, exercises his not or criminal her Fourth The United States Supreme Court has not distinguished between a privilege and a right for these purposes. See, e.g., Sherbert v. Verner, 374 U.S. 398, 404 (1963) ("Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege.' It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972) ("[T]he Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights."); Graham v. Richardson, 403 U.S. 365, 374 (1971) ("But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege.'"); Kerry v. Din, 135 S. Ct. 2128, 2143 (2015) (Breyer, J., dissenting) ("Justice SCALIA's response——that nonconstitutional law creates an 'expectation' that merits procedural protection under the Due Process Clause only if there is an unequivocal statutory right,——is sorely mistaken. His argument rests on the rights/privilege distinction that this Court rejected almost five decades ago, in the seminal case of Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)."). 38 No. Amendment constitutional right to refuse to 2015AP1523.ssa consent to the search.47 ¶207 And although the Fourth Amendment right to refuse a blood draw or a home entry can be exercised, the exercise comes with civil statutory consequences. supported laws by serve strong the governmental paramount The civil consequences are interests. governmental Implied interest of consent enforcing drunk-driving laws and, thus, protecting public safety.48 The tax assessment system serves the paramount government interest of raising funds and ensuring uniform and fair taxation. ¶208 Considering the apt analogy between Wisconsin's Implied Consent Law and the Wisconsin tax assessment system, I agree with the court of appeals' reasoning in the instant case upholding the constitutionality of the statutory choice imposed on the Milewskis: Here, Plaintiffs have the "right" to refuse to allow Gardiner access to their home, but the consequence 47 See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads."); Camara v. Mun. Ct., 387 U.S. 523, 540 (1967) ("We therefore conclude that appellant has a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted [of a crime] for refusing to consent to the inspection.") (emphasis added). 48 See Birchfield, 136 S. Ct. at 2173 ("The States and the Federal Government have a paramount interest . . . in preserving [public highway] safety . . . .") (internal quotation marks and quoted source omitted). 39 No. 2015AP1523.ssa that flows from the refusal is cessation of the right to challenge the tax assessment and pay without recourse. There is no due process violation; the choice belongs entirely to Plaintiffs.49 V ¶209 Another way of depicting the unexceptional aspects of the challenged tax assessment statutes is to analogize them to the unremarkable principle of tax law that a taxpayer must make full disclosure to a taxing authority or face civil tax consequences for failing to divulge information to the taxing authority. The consequence for refusing an assessor's reasonable request for an interior view is not retaliatory or punitive. Rather it is a legal, logical extension of the usual rule that a taxpayer who has material information about his or her tax matters must divulge it to the taxing authority. ¶210 The United States Supreme Court explained principle in Wyman v. James, 400 U.S. 309, 404 (1971). this In Wyman, the Court explained that disallowing a deduction (which increased the tax, a taking of property according to the lead opinion) was a valid consequence for the taxpayer's refusal to submit proof substantiating the claimed deduction: [In a federal income tax dispute between a taxpayer and an IRS agent] an Internal Revenue Service agent, in making a routine civil audit of a taxpayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully 49 Milewski v. Town of Dover, No.2015AP1523, slip op., ¶21 (Wis. Ct. App. May 4, 2016). 40 unpublished No. 2015AP1523.ssa within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. . . . [N]othing of constitutional magnitude is involved. Wyman, 400 U.S. at 389. ¶211 Similarly, this court has confirmed that "the privilege of appearing before the board of review and having assessment errors corrected is coupled with a duty taxpayer to make full disclosure of information." of the Hermann v. Town of Delavan, 215 Wis. 2d 370, 393, 572 N.W.2d 855 (1998) (citing Wis. Stat. § 70.47(7)(a)).50 ¶212 Wisconsin Stat. § 70.47(7)(a) explicitly disallows a person "to question [in any action or proceeding] the amount or valuation of property unless . . . [the person] made full disclosure before said board, under oath of all that person's property liable to assessment . . . and the value thereof." Similarly, Wis. Stat. § 70.47(7)(af) states that no person may object to a valuation if that valuation was made by the assessor using the income method unless 50 the person supplies to the In Hermann v. Town of Delavan, 215 Wis. 2d 370, 376, 572 N.W.2d 855, a group of taxpayers brought a claim under Wis. Stat. § 893.80 alleging that the Town's method of assessment was unfair and non-uniform. Because the taxpayers' complaint did not allege their prior compliance with the property tax appeal procedures set forth in Wis. Stat. § 70.47, this court affirmed the circuit court's dismissal of the taxpayers' complaint for failing to state a claim for upon which relief could be granted; the taxpayers had failed to exhaust the exclusive statutory remedies addressing their overassessment claims, so their claims were dismissed. Hermann, 215 Wis. 2d at 377. 41 No. 2015AP1523.ssa assessor all of the information about income and expenses that the assessor requests.51 ¶213 At the turn of the last century, Wisconsin Supreme Court Justice rationale Joshua behind the Eric Dodge principle eloquently that the explained taxpayer who the has information must disgorge the information (to which the taxing authority does not have access) in order to challenge the assessment, to ensure that the property owner and the taxing entity have a "level playing field" before the decision maker so that the decision maker can allocate the burden of taxation fairly: [The taxing authority] and the public are entitled that [the taxing authority] shall not be successfully attacked in court without full and frank disclosure from the taxpayer of the superior knowledge which he necessarily has upon the subject. It is perhaps utopian to expect of human selfishness voluntary original information . . . , but when one presents himself to give evidence against the amount which the assessor has fixed in the light, or obscurity, which necessarily surrounds him, it is but right that the taxpayer furnish all the enlightenment in his power without evasion or concealment. . . . 51 The legislature has barred taxpayers from challenging tax assessments for personal property if the taxpayer failed to make full disclosure. See, e.g., Vill. of Westby v. Bekkedal, 172 Wis. 114, 121-22, 178 N.W. 451, 454 (1920) (taxpayer who did not comply with statutory requirement to attend hearing and disclose all income subject to assessment was estopped from challenging the assessment); State ex rel. Foster v. Williams, 123 Wis. 73, 75, 100 N.W. 1052, 1052 (1904) (1903 Wis. Laws ch. 284, § 2, barred the taxpayer from questioning the board's valuation unless the taxpayer made full disclosure before the board, under oath, of all his or her personal property liable to assessment in the district and the value thereof; holding that evasive answers do not constitute a full disclosure). 42 No. State ex rel. Foster v. Williams, 123 2015AP1523.ssa Wis. 73, 76-77, 100 N.W. 1052, 1053 (1904). ¶214 By refusing to permit the assessor an interior view of the real property, the property owner disclosure to the taxing entity. fails to make a full Because the property owner fails to make full disclosure, the owner is restricted from contesting the amount challenged statutes of the assessment. unconstitutional as By holding applied, the the lead opinion essentially eviscerates the longstanding full disclosure rule, to the detriment of uniformity and fairness.52 52 Less persuasive, but worth mentioning as some support for the constitutionality of the challenged statutes, is that the challenged statutes may be considered analogous to several prerequisites a property owner must meet to contest the assessment: • Wis. Stat. § 70.47(7)(a): A person who owns land and improvements to that land may not object only to the valuation of that land or only to the valuation of improvements to that land. • Wis. Stat. § 74.37(4)(b): No claim or action for an excessive assessment may be brought or maintained unless the tax for which the claim is filed is timely paid. • Wis. Stat. § 74.3(4)(c): No claim excessive assessment may be brought the assessment of the property for contested under enumerated sections or action for an or maintained if the same year is of chapter 70. • The real property owner must exhaust administrative remedies. See Northbrook Wis., LLC v. City of Niagara, 2014 WI App 22, ¶25, 352 Wis. 2d 657, 843 N.W.2d 851 ("That Northbrook failed to avail itself of the opportunity to object before the Board of Review does not mean its right to due process was violated."). 43 No. 2015AP1523.ssa ¶215 In the instant case, the legislature has given notice to property owners that it deems an assessor's actual view of real property material evidence and that the property owners' failure to produce this material evidence will result in restricting the property owners' right to contest the amount of the assessment. By failing to permit an interior view of the real property, property owners cannot at the same time take advantage of the law's protection of the information and use the information to seek an advantage against an opposing person (including a government entity) that does not otherwise have access to the information. ¶216 The full disclosure rule exists outside of tax law. For example, if a plaintiff claiming damages for personal injury refuses to disclose his or her otherwise confidential medical 44 No. 2015AP1523.ssa records, the plaintiff's claim will be dismissed.53 See Wis. Stat. § 804.10, 905.04(4)(c).54 ¶217 The challenged statutes are, in a sense, a corollary of the well-accepted legal principle that persons who fail to disclose material evidence that is in their possession and that is not readily available to an opposing party may not avail themselves of a judicial forum. VI ¶218 I conclude by probing the meaning of the mandate of the lead opinion. ¶219 The lead opinion remands the matter to the circuit court "for further proceedings consistent with this opinion." Nowhere does the lead opinion discuss the further proceedings; 53 Lister v. Sure-Dry Basement Sys., 2008 WI App 124, 313 Wis. 2d 151, 758 N.W.2d 126 (dismissal of homeowner's action against contractor was warranted for homeowner's failure to supply physician's report); Steinberg v. Jensen, 194 Wis. 2d 439, 480, 534 N.W.2d 361 (1995) (Geske, J. concurring) ("Clearly, once a patient-litigant puts his or her physical, mental, or emotional condition into issue in a lawsuit, any confidential physician-patient communications relating to that issue, including those relevant to discovery under ch. 804, Stats., are not privileged."); Khalsa v. Chose, 261 P.3d 367 (Alaska 2011) (affirming dismissal of personal injury claim for plaintiff's failure to turn over medical records despite prior warning and court order). 54 Wisconsin Stat. § 905.04(4)(c) provides: "There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or . . . in any proceeding in which any party relies upon the condition as an element of the party's claim or defense." 45 No. 2015AP1523.ssa it is not clear what the lead opinion has in mind. See lead op., ¶26 ("We express no opinion on whether the Milewskis will be able to carry their burden of proof upon the contest of the Property's value, but that has nothing to do with whether they have the right to hazard the attempt."). ¶220 Does the circuit court determine the assessment? Does the circuit court remand the matter to the Town Board of Review to determine the assessment? May the Milewskis hire an appraiser at their own expense to view the interior of their home and submit that appraiser's opinion to the board of review or circuit court? ¶221 The Milewskis' brief provides no help in advising what happens should they prevail in this court. merely a declaration 74.37(4)(a) together that Wis. violate Stat. their The brief seeks §§ 70.47(7)(aa) constitutional rights and and this court's reversal of the decision of the court of appeals. ¶222 The assessor's brief concludes that, should the Milewskis prevail in this court, their remedy should be a remand of the matter to the Town Board of Review to determine the assessment. The assessor proposes this remedy because the Milewskis' challenge to the amount of the assessment was not heard by the Board and the statutory procedures require the matter be heard first by the Board. Delavan, 215 Wis. 2d 370, 381-83, Citing Hermann v. Town of 572 N.W.2d 855 (1998), the assessor argues that Chapters 70 and 74 are intended to be the exclusive means by which the property owner may contest the amount of the assessment. 46 No. 2015AP1523.ssa ¶223 Along the same lines, the Town urges that, should it lose, "the remedy should be an opportunity to challenge the assessment before the" board of review. the Milewskis information should that not they have have the But the Town adds that opportunity withheld, i.e., court the to "use any regarding the interior of the home." ¶224 Whether determines the the circuit assessment, I agree or with Board the of Town Review and the assessors that neither the Milewskis nor any of their witnesses should be able to use any information that they have regarding the interior of the real property. Their challenge to the assessment should be limited to the assessor's calculation of the value of the real property. Without this limit on the Milewskis' challenge to the assessment of their property, the Town's duty to assess real property uniformly and fairly may become a nullity. ¶225 For the reasons set forth, to state I write separately in dissent. ¶226 I am authorized BRADLEY joins this dissent. 47 that Justice ANN WALSH No. 1 2015AP1523.ssa
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