Brown County v. Brown County Taxpayers Association

2022 WI 13, 971 N.W.2d 491, 400 Wis. 2d 781

• Court: Wisconsin Supreme Court
• Decided: March 4, 2022
• Docket: 2020AP000940
• Status: Published

Opinion

2022 WI 13

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP940

COMPLETE TITLE: Brown County, Plaintiff-Respondent, v. Brown County Taxpayers Association and Frank Bennett, Defendants-Third-Party Plaintiffs-Appellants, v. Peter Barca, Secretary, Wisconsin Department of Revenue, Third-Party Defendant-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: March 4, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 16, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Brown JUDGE: John Zakowski

JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the defendants-third-party-plaintiffs-appellants, there were briefs filed by Richard M. Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin Institute of Law & Liberty, Milwaukee. There was an oral argument by Anthony F. LoCoco.

For the plaintiff-respondent, there was a brief filed by Andrew T. Phillips, Steven L. Nelson, Douglas M. Raines, Christopher E. Avallone and von BRIESEN & ROPER, S.C., Milwaukee. There was oral argument by Andrew T. Phillips.

There was an amicus brief filed on behalf of the Wisconsin Counties Association by Joseph L. Olson and Michael Best & Friedrich LLP, Milwaukee.

2 2022 WI 13 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP940 (L.C. No. 2018CV640)

STATE OF WISCONSIN : IN SUPREME COURT

Brown County,

Plaintiff-Respondent,

v.

Brown County Taxpayers Association and Frank Bennett, FILED Defendants-Third-Party Plaintiffs-Appellants, MAR 4, 2022

v. Sheila T. Reiff Clerk of Supreme Court

Peter Barca, Secretary, Wisconsin Department of Revenue,

Third-Party Defendant-Respondent.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined.

APPEAL from an order of the Circuit Court for Brown County,

John P. Zakowski, Judge. Affirmed. No. 2020AP940

¶1 ANN WALSH BRADLEY, J. This case is before the court on

certification by the court of appeals pursuant to Wis. Stat.

§ (Rule) 809.61 (2017-18) after the circuit court granted summary

judgment to Brown County.1 The circuit court determined that the

County's sales and use tax ordinance was lawful.

¶2 The court of appeals certified the following issue

regarding how counties may utilize the proceeds of enacted sales

and use taxes:

Does the sales and use tax Brown County enacted in 2017 and implemented as part of its 2018 budget process "directly reduce the property tax levy," as required by Wis. Stat. § 77.70 (2015-16),[2] if the proceeds are designated to fund new capital projects that collectively would otherwise exceed the levy limits established by Wis. Stat. § 66.0602, but the County could otherwise fund the projects by borrowing? ¶3 The appellant, Brown County Taxpayers Association

(BCTA), contends that Brown County's sales and use tax is invalid

because it does not dollar-for-dollar directly reduce the County's

property tax levy in violation of Wis. Stat. § 77.70. Rather,

BCTA contends that the sales and use tax is impermissibly used to

fund new capital projects.

¶4 In contrast, the County asserts that its sales and use

tax complies with Wis. Stat. § 77.70. It argues, in accordance

1 This case arose in the circuit court for Brown County, John P. Zakowski, Judge. 2 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. This is the version of the statutes in effect at the time the sales and use tax at issue was passed. Wisconsin Stat. § 77.70 was amended in 2017, but these amendments do not impact our analysis.

2 No. 2020AP940

with a longstanding Attorney General's opinion, that pursuant to

§ 77.70 a sales and use tax may be used by a county to fund any

project that could otherwise be paid for with property taxes.

¶5 We conclude that Brown County's sales and use tax

ordinance is consistent with Wis. Stat. § 77.70. Section 77.70

does not require a dollar-for-dollar offset to the property tax

levy. Instead, it authorizes counties to impose a sales and use

tax for the specific purpose of directly reducing the property tax

levy, while leaving the means to accomplish that purpose up to the

county. Because the County's ordinance does in fact directly

reduce the property tax levy by funding projects that would

otherwise have been paid for through additional debt obligations,

we determine that the ordinance is permissible.

¶6 Accordingly, we affirm the order of the circuit court.

I

¶7 On May 17, 2017, the Brown County Board of Supervisors

enacted an ordinance relating to a temporary sales and use tax

within the County. The ordinance provided for a 0.5 percent sales and use tax that would be in effect for a period of 72 months.

¶8 Within the ordinance itself is a specification regarding

how the money collected from the sales and use tax is to be used.

Namely, the ordinance provides that revenue from the tax "[s]hall

not be utilized to fund any operating expenses other than lease

payments associated with" specified capital projects. It further

indicates that the sales and use tax revenue "[s]hall be utilized

only to reduce the property tax levy by funding the below listed specific capital projects, as well as funding said specific capital 3 No. 2020AP940

projects' associated costs as deemed appropriate by Brown County

administration."

¶9 The expenses for specific capital projects intended to

be funded from the sales and use tax revenue include: (1) $15

million for the Expo Hall project; (2) $60 million for

infrastructure, roads, and facilities projects; (3) $20 million

for jail and mental health projects; (4) $20 million for a library

project; (5) $10 million for maintenance at the Resch Expo Center;

(6) $10 million for medical examiner and public safety projects;

(7) $1 million for a museum project; (8) $6 million for parks and

fairgrounds; and (9) $5 million for a STEM research center project.

¶10 Totaling $147 million, these expenses were determined by

members of the County Board to fund "necessary projects" for the

"long-term viability of the County." Without the sales and use

tax, the County stated that these capital improvements would have

been funded through new borrowing and the accompanying issuance of

debt obligations.

¶11 Additionally, the ordinance contained a mill rate3 freeze. This provision states: "While this temporary sales and

use tax Ordinance is in effect, the Brown County Mill Rate shall

not exceed the 2018 Brown County Mill Rate." It further provides

that if the mill rate does exceed the 2018 rate during the life of

the ordinance, that the sales and use tax "shall sunset on December

3 The mill 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." Milewski v. Town of Dover, 2017 WI 79, ¶47 n.18, 377 Wis. 2d 38, 899 N.W.2d 303 (quoted source omitted).

4 No. 2020AP940

31 of the year the Brown County Mill Rate exceeds the 2018 Brown

County Mill Rate." A sunset provision is also included in the

ordinance in the event the County issues any general obligation

debt, excluding refunding bonds.

¶12 Brown County relied on the sales and use tax revenue in

crafting its 2018 budget. For that year, the County's finance

director estimated the sales and use tax proceeds to be

$22,458,333. This amount was incorporated in the 2018 budget,

which was adopted by the County Board and signed by the County

Executive.

¶13 Shortly after the budget was enacted, BCTA filed suit

against the County, arguing that the sales and use tax ordinance

violates Wis. Stat. § 77.70. Specifically, BCTA argued that the

ordinance does not "directly reduc[e] the property tax levy" as

§ 77.70 mandates. It sought a declaratory judgment that the

ordinance is invalid and an accompanying injunction against the

ordinance's enforcement. BCTA's lawsuit was ultimately dismissed

without prejudice due to BCTA's failure to comply with statutory notice of claim procedures.4

4 The notice of claim statute contains requirements for providing notice to a governmental subdivision prior to filing suit against that subdivision. See Wis. Stat. § 893.80. Such requirements allow governmental entities to investigate and evaluate potential claims and afford them the opportunity to compromise and settle a claim, thereby avoiding costly and time- consuming litigation. Yacht Club at Sister Bay Condo. Ass'n, Inc. v. Village of Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922 N.W.2d 95.

5 No. 2020AP940

¶14 After dismissal of its lawsuit, BCTA served a notice of

claim on the County. The County disallowed the claim and

subsequently filed this lawsuit in the circuit court, seeking a

declaratory judgment as to the validity of the sales and use tax

ordinance. BCTA filed a counterclaim, asserting that the ordinance

is void as a matter of law.

¶15 Both parties moved for summary judgment. BCTA renewed

its argument that the ordinance does not "directly reduc[e] the

property tax levy" as Wis. Stat. § 77.70 requires and that such

direct reduction can only be accomplished by a dollar-for-dollar

offset. In contrast, the County asserted that the ordinance is

valid, suggesting that § 77.70 is an enabling statute that allows

a county to impose a sales and use tax but is silent on how sales

and use tax proceeds are to be used.

¶16 The circuit court granted Brown County's motion for

summary judgment and denied that of BCTA. It concluded that a

dollar-for-dollar reduction of the property tax levy with sales

and use tax revenue "is not the solely lawful operation required by the plain language of the statute." Further, it determined

that "[i]f Wisconsin Statute section 77.70 were to require a

dollar-for-dollar reduction of a county's property tax levy, then

the Wisconsin Legislature would have said so in the body of the

statute, and it would have spelled out the process for Wisconsin

counties to follow."

¶17 BCTA moved for reconsideration, which the circuit court

denied. Subsequently, BCTA appealed, and the court of appeals certified the appeal to this court. 6 No. 2020AP940

II

¶18 We are called upon to review the circuit court's

determination on the parties' cross-motions for summary judgment.

This court reviews a summary judgment decision independently of

the decisions rendered by the circuit court and court of appeals,

applying the same methodology as the circuit court. MacLeish v.

Boardman & Clark LLP, 2019 WI 31, ¶22, 386 Wis. 2d 50, 924

N.W.2d 799. Summary judgment is appropriate where there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Id.

¶19 In our review, we interpret several statutes. Statutory

interpretation presents a question of law we likewise review

independently of the determinations of the circuit court and court

of appeals. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶16, 397

Wis. 2d 431, 960 N.W.2d 384.

III

¶20 We begin by setting forth necessary background regarding

the statutes at issue and county property tax levies. Subsequently, we present and analyze the parties' arguments

concerning the validity of the Brown County ordinance at issue.

A

¶21 All counties in Wisconsin, including Brown County, are

required by statute to adopt an annual budget. See Wis. Stat.

§§ 59.60, 65.90. As part of the budgeting process, Brown County

is required to "list all existing indebtedness and all anticipated

revenue from all sources during the ensuing year and shall likewise

7 No. 2020AP940

list all proposed appropriations for each department, activity and

reserve account during the said ensuing year." § 65.90(2).

¶22 From this data, a county calculates its property tax

levy. To do so, it adds the operating levy (the revenue necessary

to fund county operations) with the debt levy (the amount necessary

to pay debt service on county borrowing). The types of

expenditures that make up the operating levy include, among other

things, necessary expenses for the operation of the county library

system, the county jail, and facility management.

¶23 How the property tax levy is set is governed by Wis.

Stat. § 66.0602, which was enacted in 2005. See 2005 Wis. Act 25,

§ 1251c. Section 66.0602, among other provisions, includes a limit

on the amount a governmental subdivision may increase its property

tax levy in a given year.

¶24 Pursuant to Wis. Stat. § 66.0602(2), and subject to

certain exceptions, a county cannot increase its property tax levy

in any year "by a percentage that exceeds the [county's] valuation

factor."5 The "valuation factor" is defined as "a percentage equal

5 In full, Wis. Stat. § 66.0602(2) provides:

Levy limit. Except as provided in subs. (3), (4), and (5), no political subdivision may increase its levy in any year by a percentage that exceeds the political subdivision's valuation factor. The base amount in any year, to which the limit under this section applies, shall be the actual levy for the immediately preceding year. In determining its levy in any year, a city, village, or town shall subtract any tax increment that is calculated under s. 59.57(3)(a), 60.85(1)(L), or 66.1105(2)(i). The base amount in any year, to which the limit under this section applies, may not include any amount to which sub. (3)(e)8. applies.

8 No. 2020AP940

to the greater of either the percentage change in the political

subdivision's January 1 equalized value due to new construction

less improvements removed between the previous year and the

current" or zero percent. § 66.0602(1)(d). In other words, the

amount a county may raise its property tax levy in a given year is

tied to the percentage change in net new construction in the

county. See Steven Deller & Judith I. Stallmann, Tax and

Expenditure Limitations and Economic Growth, 90 Marq. L. Rev. 497,

519 (2007).

¶25 As stated, there are several statutory exceptions to the

levy limit. Relevant here is the exception set forth in Wis. Stat.

§ 66.0602(3)(d) regarding debt service. Pursuant to

§ 66.0602(3)(d)2.:

The limit otherwise applicable under this section does not apply to amounts levied by a political subdivision for the payment of any general obligation debt service, including debt service on debt issued or reissued to fund or refund outstanding obligations of the political subdivision, interest on outstanding obligations of the political subdivision, or the payment of related issuance costs or redemption premiums, authorized on or after July 1, 2005, and secured by the full faith and credit of the political subdivision. Stated differently, the levy limit applies to the operating levy,

but not the debt levy. An additional exception to the levy limit

applies if a political subdivision's governing body adopts a

resolution to raise the levy beyond the statutory limit that is

then approved by the electorate in a referendum. § 66.0602(4).

¶26 Levy limits are enforced by the Department of Revenue. Wis. Stat. § 66.0602(6). To aid the Department in enforcing the

9 No. 2020AP940

limits, it uses a Levy Limit Worksheet to ensure that a county has

complied with the dictates of § 66.0602. Echoing the statutory

exceptions, the Levy Limit Worksheet excludes all sums paid for

debt service from the levy limit calculation. In an affidavit

filed in the circuit court, the County's finance director described

the consequence of this: "In other words, if a county borrows

money for a capital project, the principal and interest payments

that the county pays on the loan are excluded from the definition

of revenues subject to the levy limit."

B

¶27 We move next to address the parties' competing

interpretations of Wis. Stat. § 77.70, which provides in relevant

part: "The county sales and use taxes may be imposed only for the

purpose of directly reducing the property tax levy . . . ."

¶28 When interpreting statutes, we begin with the language

of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning

of the statute is plain, we need not inquire further. Id. ¶29 "Statutory language is given its common, ordinary, and

accepted meaning, except that technical or specially-defined words

or phrases are given their technical or special definitional

meaning." Id. We also interpret statutory language "in the

context in which it is used; not in isolation but as part of a

whole; in relation to the language of surrounding or closely-

related statutes; and reasonably, to avoid absurd or unreasonable

results." Id., ¶46.

10 No. 2020AP940

¶30 BCTA contends that there is only one way to occasion a

"direct" reduction in the property tax levy——a dollar-for-dollar

offset of the levy corresponding to the revenue collected through

the sales and use tax. Preventing a hypothetical increase in the

property tax levy, BCTA argues, is not the same as "directly

reducing" it as the statute requires.

¶31 On the other hand, Brown County contends that the

language of Wis. Stat. § 77.70 allows for sales and use taxes to

fund any project that could otherwise be funded with property

taxes.6 In the County's view, the sales and use tax at issue was

enacted to avoid raising the property tax levy to pay for the

capital projects identified in the ordinance. Accordingly, the

County argues that it was enacted "for the purpose of" funding

projects that otherwise would have been funded through property

tax revenue. It asserts that, without the sales and use tax, the

subject capital projects would have been funded by borrowing money,

thereby increasing the County's debt burden, which in turn would

be passed on to taxpayers via the property tax levy. ¶32 For further support, the County points the court to an

attorney general's opinion on the proper interpretation of Wis.

Stat. § 77.70. Our precedent indicates that a well-reasoned

6 Peter Barca, the secretary of the Department of Revenue, is also party to this case, but he does not take a position on the issue of whether Brown County's sales and use tax complies with state law. Instead, Secretary Barca's brief focuses only on the remedy in the event the tax is unlawful. Because we conclude that the sales and use tax is lawful, we need not address this remedy issue.

11 No. 2020AP940

attorney general's opinion is of at least some persuasive value

when a court later addresses the meaning of the same statute. Town

of Vernon v. Waukesha County, 102 Wis. 2d 686, 692, 307 N.W.2d 227

(1981).

¶33 In 1998, the attorney general opined on the same issue

we face in this case. See Opinion of Wis. Att'y Gen. to Dennis E.

Kenealy, Ozaukee County Corp. Counsel, OAG 1-98 (May 5, 1998).

The attorney general was asked, "in effect, how funds received

from a county sales and use tax imposed under section 77.70,

Stats., may be budgeted by the county board." Id. at 1. He

concluded that "such funds may be budgeted to reduce the amount of

the overall countywide property tax levy or to defray the cost of

any item which can be funded by a countywide property tax." Id.

¶34 The attorney general's analysis began with a brief

history of Wis. Stat. § 77.70: "Prior to 1985, counties had the

authority to impose sales and use taxes, but the Wisconsin

Department of Revenue was required to distribute all of the net

proceeds of such taxes to towns, cities and villages within the county imposing the tax." Id. Presumably because they could not

keep the revenue collected, few, if any, counties imposed a sales

and use tax. Id. In 1985, § 77.70 was amended "to allow county

governments to retain the net proceeds of the sales and use tax,"

as long as those proceeds are used for the purpose of directly

reducing the property tax levy. Id. at 2 (citing 1985 Wis. Act

41).

¶35 Next, the attorney general discussed how after this amendment, counties utilized one of two ways to demonstrate direct 12 No. 2020AP940

property tax reductions. Id. at 2. Some counties illustrated a

property tax reduction "by showing the receipt of sales and use

tax revenues on individual property tax bills." Id. Other

counties "budgeted the net proceeds of the sales and use tax as a

revenue source used to offset the cost of individual items

contained in the county budget." Id.

¶36 In comparing these approaches, the attorney general

noted the fundamental fungibility of money, explaining:

The same amount of countywide property tax reduction occurs whether the county board chooses to budget revenues from net proceeds of the sales and use tax as a reduction in the overall countywide property tax levy or as an offset against a portion of the costs of specific items which can be funded by the countywide property tax. Id. Accordingly, in the attorney general's view, "Counties may

therefore also budget the net proceeds of the sales and use tax as

an offset against the cost of any individual budgetary item which

can be funded by the countywide property tax." Id. at 3.

¶37 We find the County's reading of the statute, echoed by

the attorney general's opinion, to be the correct one. Nothing in

Wis. Stat. § 77.70 requires the dollar-for-dollar offset that BCTA

seeks.

¶38 On its face, Wis. Stat. § 77.70 requires that a sales

and use tax be enacted for the "purpose of directly reducing the

property tax levy." "Purpose" is defined as "the reason why

13 No. 2020AP940

something is done or used" or "the aim or intention of something."7

Taking this common definition into account, § 77.70 broadly sets

out what the goal or aim of a county sales and use tax must be,

i.e. direct reduction of the property tax levy.

¶39 The statute does not, however, contain any mechanism by

which a county must accomplish such a reduction. Its enabling

language allows a county to impose a sales and use tax for the

purpose of directly reducing the property tax levy, but it does

not mandate that the county use or spend revenue generated by the

tax on a dollar-for-dollar offset.

¶40 As the attorney general concluded in 1998, money is

fungible. Due to this essential fungibility, there is not one

sole way to attain the "purpose" of reducing the property tax levy.

Indeed, an identical reduction in the property tax levy can be

accomplished from a dollar-for-dollar offset as can be attained by

budgeting specific items, which otherwise would have been paid for

from property tax revenue, to be funded with a sales and use tax.

Either way, the purpose of directly reducing the property tax levy is accomplished. Thus, Wis. Stat. § 77.70 allows revenue generated

from county sales and use tax to be used to fund any project that

could otherwise have been paid for from property tax revenue.

7 Purpose, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/purpose (last visited Feb. 14, 2022); see also State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998) ("For purposes of statutory interpretation or construction, the common and approved usage of words may be established by consulting dictionary definitions.").

14 No. 2020AP940

¶41 Contrary to BCTA's argument, such a conclusion does not

read the word "directly" out of the statute. "Direct" means "to

cause to turn, move, or point undeviatingly or to follow a straight

course."8 It is just as straightforward for a specifically-funded

project to cause a reduction in the property tax levy as it is for

an offset to do the same. Stated differently, using the proceeds

from a sales and use tax to fund a specific project that would

otherwise have been funded with property tax revenue accomplishes

a "direct reduction" of the property tax levy the same way a

dollar-for-dollar offset would.

¶42 A comparison with surrounding statutes is additionally

instructive in reaching our conclusion. See Kalal, 271

Wis. 2d 633, ¶46. Specifically, the legislature enacted two

nearby statutes for the purpose of funding sports stadiums and in

those statutes it explicitly directed the stadium districts on how

to utilize proceeds of sales and use taxes. Wisconsin Stat.

§ 77.705, passed in 1995 to fund construction of Miller Park (now

American Family Field),9 authorizes a "local professional baseball park district" to "impose a sales and a use tax . . . at a rate of

no more than 0.1 percent of the sales price or purchase price."

Similarly, Wis. Stat. § 77.706, enacted in 1999 for improvements

to Lambeau Field, authorizes a "local professional football

8Direct, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/direct (last visited Feb. 14, 2022). 9For further background on Wis. Stat. § 77.705, see Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 796-800, 546 N.W.2d 424 (1996).

15 No. 2020AP940

stadium district" to "impose a sales and a use tax . . . at a rate

of 0.5 percent of the sales price or purchase price."

¶43 Unlike Wis. Stat. § 77.70, both of these statutes

explicitly provide that the proceeds from the sales and use taxes

are to be spent to pay down the stadium districts' debt in a

dollar-for-dollar manner. Both Wis. Stat. §§ 77.705 and 77.706

contain identical language indicating that any money received

"shall be used exclusively to retire the district's debt."

§§ 77.705, 77.706.

¶44 In contrast, Wis. Stat. § 77.70, while setting forth

that the "purpose" of the sales and use tax must be to "directly

reduc[e] the property tax levy," is silent on how this is to be

accomplished. If the legislature wanted to mandate a dollar-for-

dollar offset of property taxes, it could have done so in a manner

similar to the language of Wis. Stat. §§ 77.705 and 77.706. See

also Wis. Stat. §§ 229.685(1) and 229.825 (further restricting how

stadium tax revenues must be spent); Southport Commons, LLC v.

DOT, 2021 WI 52, ¶32, 397 Wis. 2d 362, 960 N.W.2d 17 ("The legislature is presumed to carefully and precisely choose

statutory language to express a desired meaning." (internal

quotation omitted)).

¶45 Our interpretation is also supported by the analysis

employed by the attorney general in the 1998 opinion on Wis. Stat.

§ 77.70. See OAG 1-98. The attorney general correctly based his

opinion on the essential fungibility of money and the principle

that the same reduction in the property tax levy occurs regardless

16 No. 2020AP940

of whether the proceeds are budgeted as an offset on the bills of

taxpayers or used to fund a specific item.

¶46 Although the parties in this case argue over the proper

weight to give an attorney general's opinion in our analysis, we

need not and do not resolve that question because the attorney

general's analysis was substantively correct. In other words, we

do not rely on any presumption or deference to the opinion of the

attorney general,10 but conclude that the analysis itself is

persuasive and faithful to our principles of statutory

interpretation.

¶47 We therefore determine that Wis. Stat. § 77.70 does not

require a dollar-for-dollar reduction in the property tax levy.

Instead, it authorizes counties to impose a sales and use tax for

the specific purpose of directly reducing the property tax levy,

while leaving the means to accomplish that purpose up to the

county.

¶48 BCTA asserts next that Wis. Stat. § 66.0602, which was

passed subsequent to the issuance of the 1998 attorney general's opinion, changes this result. It focuses on the levy limit

contained in that statute, which provides in relevant part:

"Except as provided in subs. (3), (4), and (5), no political

subdivision may increase its levy in any year by a percentage that

exceeds the political subdivision's valuation factor."

10See Staples for Staples v. Glienke, 142 Wis. 2d 19, 28, 416 N.W.2d 920 (Ct. App. 1987) (treating an attorney general's opinion "as presumptively correct, when the legislature later amends the statute but makes no changes in response to the attorney general's opinion").

17 No. 2020AP940

§ 66.0602(2). Due to this levy limit, BCTA argues that the County

could not have raised its property taxes by the amount needed to

cover the capital expenditures intended to be funded by the sales

and use tax.

¶49 Putting a finer point on it, BCTA argues that Wis. Stat.

§ 66.0602(2) indicates that the County's property tax levy may be

increased only by a percentage that does not exceed the County's

valuation factor. By funding new projects to the tune of

$147,000,000 over six years, BCTA asserts that the County vastly

exceeds the statute's restriction on property tax levy increases.

Stated otherwise, the projects could not have been paid for from

property tax revenue because property taxes could not have been

legally raised to such a level. For example, the County sought to

use almost $18,000,000 collected from sales and use tax to fund

new capital projects in 2018. However, the County's 2017 property

tax levy was $86,661,972, and its 2018 levy limit was $87,584,261,

a difference of just under one million dollars.11

¶50 We disagree with BCTA's argument on this point. BCTA focuses on Wis. Stat. § 66.0602(2) at the expense of the exception

to subsec. (2) noted in § 66.0602(3)(d). Pursuant to subdivision

(3)(d)2., "The limit otherwise applicable under this section does

not apply to amounts levied by a political subdivision for the

payment of any general obligation debt service." In other words,

11 The record contains a reference to a higher number, $91,115,007, as the allowable 2018 debt levy limit. We use here the lower number provided in the 2017 Levy Limit Worksheet provided to the Department of Revenue, but the number chosen does not affect the analysis.

18 No. 2020AP940

any debt levy is not taken into account in determining the levy

limit under subsec. (2).

¶51 Here, the record reflects that the County would have, in

the absence of the sales and use tax, issued general obligation

debt to pay for the projects identified in the ordinance at issue.

Payments on such debt service are exempt from the levy limits,

meaning that contrary to BCTA's argument the property tax levy

could have been raised to pay for the subject capital projects.

¶52 Having determined that Wis. Stat. § 77.70 describes what

must be done with county sales and use tax proceeds but not how to

accomplish that, we address next whether the Brown County sales

and use tax ordinance at issue does in fact "directly reduc[e] the

property tax levy." In examining the record, it is apparent that

the answer is yes.

¶53 The County's finance director detailed the effect of the

sales and use tax on property taxes vis-à-vis borrowing that would

have taken place absent the implementation of the sales and use

tax. Specifically, the finance director averred that the subject projects would have otherwise been funded through the issuance of

additional debt obligations. Such debt obligations would cause

County property taxpayers to pay extra costs associated with the

borrowing, including over $13 million in interest over the lifetime

of the ordinance and $47 million in total interest, assuming a 20-

year term on the loan and thus a 20-year life of the debt service.

¶54 Absent the sales and use tax, property taxes would have

to increase to cover the increased debt burden (and as indicated above, debt service is excluded from the levy limit). The 19 No. 2020AP940

operation of this principle can be illustrated with a micro-level

example. In this case, Brown County's finance director stated

that if the sales and use tax remains in place, property taxes on

the median home value in the County would decrease by $140.20

between 2018 and 2023. If there were no sales and use tax, and

the County instead borrowed money for the subject projects, the

issuance of general debt obligations would cause taxes on that

same median property to increase by $356.48 in the same time

period. Thus, the sales and use tax saves the median Brown County

property owner $496.68——a direct reduction.

¶55 In sum, we conclude that Brown County's sales and use

tax ordinance is consistent with Wis. Stat. § 77.70. Section 77.70

does not require a dollar-for-dollar offset to the property tax

levy. Instead, it authorizes counties to impose a sales and use

tax for the specific purpose of directly reducing the property tax

levy, while leaving the means to accomplish that purpose up to the

county. Because the County's ordinance does in fact directly

reduce the property tax levy by funding projects that would otherwise have been paid for through additional debt obligations,

¶56 Accordingly, we affirm the order of the circuit court.

By the Court.—The order of the circuit court is affirmed.

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¶57 REBECCA GRASSL BRADLEY, J. (dissenting).

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean— ——neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master——that's all."

Lewis Carroll, Through the Looking-Glass and What Alice Found There 124 (London, Macmillan & Co. 1899).

¶58 The Wisconsin Legislature enacted a statute providing

"county sales and use taxes may be imposed only for the purpose of

directly reducing the property tax levy[.]" Wis. Stat. § 77.70

(2015–16) (emphasis added).1 Brown County enacted an ordinance

imposing a sales and use tax for the purpose of avoiding an

increase in the property tax levy. The majority declares the

County's ordinance lawful by equating the avoidance of an increase

with a reduction. The average American who faces the realities of

daily budgeting knows the majority's math does not compute:

Although he may prefer to drive a Maserati, he can only afford a

Honda, and "avoiding" the loan payment for a Maserati does not

mean he "reduces" his budget outlay by purchasing a Mercedes

instead of a Honda.

¶59 Defying basic logic, the majority chooses a different

meaning for "reducing" than the plain one the legislature gave it.

1 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.

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In order to reduce a property tax levy, it must actually go down.

In this case, it didn't.

¶60 The Brown County Board of Supervisors (the Board)

decided to spend $147,000,000 on new projects. The property taxes

paid by property owners in Brown County were insufficient to fund

these projects, so the Board enacted an ordinance imposing a sales

and use tax in order to make up the difference. The sales and use

tax did not reduce the property tax levy (it actually went up).

Nevertheless, the Board maintains the property tax levy otherwise

would have had to increase in order to pay for all of the new

projects. The Board decided to avoid an increase in the property

tax levy by instead imposing a sales and use tax to directly pay

for the projects. The majority permits this, contorting a statute

designed for property tax relief into a blank check for

unaffordable spending. The majority may do so as the masters of

law-declaring in Wisconsin, but the statute does not mean what the

majority says.

¶61 The majority roots its analysis in a fallacious presumption rather than the statutory text, a foundational error

contaminating its entire opinion. The majority relies entirely on

an affidavit of the Brown County Finance Director (the Director)

insisting the projects "would otherwise have been" funded through

issuing debt, which in turn would have required increasing the

property tax levy to pay for it.2 Of course, the County cannot

guarantee it could have accomplished the political feat of

borrowing $147,000,000 and then increasing the property tax levy

2 Majority op., ¶5.

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accordingly, which would have required the approval of either a

super majority (three-fourths) of the Board, or the County voters

via referendum. The majority sidesteps these political hurdles

altogether in order to contrive a "reduction" in the property tax

levy that never occurred. In accepting the County's baseless

presumptions, the majority rewrites Wis. Stat. § 77.70 into a blank

check for spending rather than the tax relief for property owners

the legislature enacted.

¶62 Chief Justice John Marshall once cautioned "[i]t would

be dangerous in the extreme, to infer from extrinsic circumstances,

that a case for which the words of an instrument expressly provide,

shall be exempted from its operation." Sturges v. Crowninshield,

17 U.S. (4 Wheat.) 122, 202 (1819). In this case, the majority

exempts "directly reducing" from any operative effect, thereby

gutting the express and unambiguous statutory requirement that a

county sales and use tax be imposed "only for the purpose of

directly reducing the property tax levy[.]" Our judicial duty is

to give effect to the legislature's duly enacted statutes by declaring what they plainly mean. See Koschkee v. Taylor, 2019 WI

76, ¶54, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley,

J., concurring)(citing Tetra Tech EC, Inc. v. Wis. Dep't of Rev.,

2018 WI 75, ¶3, 382 Wis. 2d 496, 914 N.W.2d 21 (lead

opinion))(explaining "the judiciary's constitutionally-vested

authority to say what the law is"). Because the majority chooses

a different meaning for Wis. Stat. § 77.70 than the legislature

gave it, I respectfully dissent.

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I. BACKGROUND

¶63 In 2017, Brown County enacted a sales and use tax

ordinance (the Ordinance) pursuant to Wis. Stat. § 77.70.

Section 77.70 authorizes counties to impose a 0.5 percent sales

and use tax by adopting an ordinance, provided the tax "may be

imposed only for the purpose of directly reducing the property tax

levy[.]" The Ordinance:

enacts a temporary 72 month, 0.5 percent Brown County sales and use tax, revenues from which: 1) Shall not be utilized to fund any operating expenses other than lease payments associated with the below mentioned specific capital projects; and 2) Shall be utilized only to reduce the property tax levy by funding the below listed specific capital projects, as well as funding said specific capital projects' associated costs as deemed appropriate by Brown County administration, in [the provided] amounts[.] Introduced as part of the County's "Debt Reduction, Infrastructure

& Property Tax Relief Plan," the Ordinance funded nine new capital

projects, with total costs of $147 million over six years.3

¶64 The Brown County Taxpayers Association and Frank Bennett

(BCTA) challenged the Ordinance, claiming it violated Wis. Stat. § 77.70, and the County sought a declaration that the Ordinance

was lawful. The circuit court granted summary judgment to the

County and denied BCTA's motion for reconsideration. After BCTA

3 The capital projects and their associated costs included: (1) "Expo Hall Project" ($15 million); (2) "Infrastructure, Roads and Facilities Projects" ($60 million); (3) "Jail and Mental Health Projects" ($20 million); "Library Project" ($20 million); "Maintenance at Resch Expo Center Project" ($10 million); "Medical Examiner and Public Safety Projects" ($10 million); "Museum Project" ($1 million); "Parks and Fairgrounds Project" ($6 million); and "Stem Research Center Project" ($5 million).

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appealed, the court of appeals certified the following issue, which

we accepted:

Does the sales and use tax Brown County enacted in 2017 and implemented as part of its 2018 budget process "directly reduce the property tax levy," as required by Wis. Stat. § 77.70 (2015–16), if the proceeds are designated to fund new capital projects that collectively would otherwise exceed the levy limits established by Wis. Stat. § 66.0602, but the County could otherwise fund the projects by borrowing? II. STANDARD OF REVIEW

¶65 "On appeal, '[w]e independently review a grant of summary judgment.'" Skindzelewski v. Smith, 2020 WI 57, ¶7, 392

Wis. 2d 117, 944 N.W.2d 575 (quoting West Bend Mut. Ins. Co. v.

Ixthus Med. Supply, Inc., 2019 WI 19, ¶9, 385 Wis. 2d 580, 923

N.W.2d 550). "The interpretation and the application of [Wis.

Stat. § 77.70] present questions of law that we review

independently." Jefferson v. Dane County, 2020 WI 90, ¶13, 394

Wis. 2d 602, 951 N.W.2d 556 (citing Dawson v. Town of Jackson,

2011 WI 77, ¶17, 336 Wis. 2d 318, 801 N.W.2d 316).

III. DISCUSSION

A. Plain Meaning of Wis. Stat. § 77.70

¶66 This case turns on the meaning of Wis. Stat. § 77.70.

Accordingly, the analysis 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. Cir. Ct. for Dane Cnty., 2004 WI

58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "We give statutory

language 'its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their technical or special definitional meaning.'" Milwaukee Dist.

5 No. 2020AP940.rgb

Council 48 v. Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748,

924 N.W.2d 153 (quoting Kalal, 271 Wis. 2d 633, ¶45). We interpret

statutory language "in the context in which it is used; not in

isolation but as part of a whole; in relation to the language of

surrounding or closely-related statutes; and reasonably, to avoid

absurd or unreasonable results." Id. (quoting Kalal, 271

Wis. 2d 633, ¶46). "In construing or interpreting a statute the

court is not at liberty to disregard the plain, clear words of the

statute." Kalal, 271 Wis. 2d 633, ¶46 (quoting State v. Pratt, 36

Wis. 2d 312, 317, 153 N.W.2d 18 (1967)).

¶67 The plain meaning of Wis. Stat. § 77.70 permits counties

to impose a sales and use tax "only for the purpose of directly

reducing the property tax levy[.]" The County acknowledges this

statutory requirement but argues it "does not require counties to

'use' or 'spend' sales and use tax proceeds only for that purpose."

The majority agrees, concluding the statute does not specify the

means by which counties must accomplish the direct reduction.4

¶68 The majority errs by allowing "for the purpose of" to swallow "directly reducing" altogether.5 The statutory "purpose"

language, however, does not alter (much less eviscerate) the

meaning of the "directly reducing" clause. Instead, it merely

indicates to what end the tax may be imposed: "directly reducing

the property tax levy."

¶69 Even if the statute gives counties some latitude to

determine the mechanism by which to "directly reduc[e] the property

4 Majority op., ¶5. 5 Id., ¶¶38–39.

6 No. 2020AP940.rgb

tax levy," the County did not reduce the property tax levy at all,

much less "directly." The adverb "directly" means "[i]n a direct

line or manner" or "[w]ithout anyone or anything intervening."6

It is derived from the adjective "direct," which means "[e]ffected

or existing without intermediation or intervening agency;

immediate."7 The County's multi-step procedure was anything but

direct.8 Any purported reduction in the property tax levy stemming

from avoiding unapproved debt (and any corresponding increase in

the levy) by means of a sales and use tax does not "directly

reduc[e] the property tax levy"; in fact, the County increased

both the property tax levy and the sales and use tax, raising far

more revenue than it could have generated through property taxes

alone under normal budgeting constraints. Nevertheless, the

majority maintains the Ordinance directly reduces the property tax

levy "by funding projects that would otherwise have been paid for

through additional debt obligations[.]"9 The majority insists it

does not read "directly" out of the statute because "[i]t is just

as straightforward for a specifically-funded project to cause a reduction in the property tax levy as it is for an offset to do

6 Directly, The American Heritage Dictionary of the English Language 527 (3d ed. 1992). 7 Direct, The Oxford English Dictionary 702 (2d ed. 1989); see also Direct, The American Heritage Dictionary of the English Language 527 (3d ed. 1992) ("Having no intervening persons, conditions, or agencies[.]"). 8 See Indirect, The American Heritage Dictionary of the English Language 919 (3d ed. 1992) ("Diverging from a direct course; roundabout. . . . [S]econdary[.]"). 9 Majority op., ¶5.

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the same."10 No matter how straightforward the method, neither of

those scenarios reflects what actually happened. The County is

not directly (or even indirectly) defraying any property tax

increase necessitated by its spending choices; instead, it is

funding new projects in the first instance with sales and use tax

revenues, which the property tax levy could not have otherwise

sustained.

¶70 By sanctioning the County's misuse of the statute, the

majority's interpretation renders the term, "directly,"

meaningless. See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language

is read where possible to give reasonable effect to every word, in

order to avoid surplusage."); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 174 (2012) ("These

words cannot be meaningless, else they would not have been used."

(quoting United States v. Butler, 297 U.S. 1, 65 (1936)). In order

for the property tax levy to be "directly" reduced, the reduction

must occur by the shortest path and "[w]ithout anyone or anything

intervening[.]"11 In order to lawfully use the sales and use tax revenue to fund new spending, the County must first authorize and

issue general obligation bonds through statutory procedures under

Wis. Stat. ch. 67, then increase the debt levy, necessitating an

increase in the property tax levy in the corresponding amount to

pay for the debt service. See Wis. Stat. §§ 66.0602(3), 67.045,

10 Id., ¶41. 11See Directly, The American Heritage Dictionary of the English Language 527 (3d ed. 1992).

8 No. 2020AP940.rgb

67.05. The sales and use tax revenue could then be applied to

directly reduce the property tax levy.

¶71 The County's purported "reduction" is not in fact any

reduction at all. The County's ability to authorize and issue

general obligation bonds is dependent upon the satisfaction of

several statutory prerequisites, in addition to following its own

debt issuance policies.12 Because the Ordinance funds new projects

that have not been approved for bonding——and therefore have not

produced any actual increase in the debt levy or property tax levy—

—there is nothing to reduce.13 Calculating savings based on a

theoretical increase in debt and property taxes that would have

resulted if an alternative funding mechanism had been approved

produces nothing but a chimera of a "reduc[tion]" and certainly

not a direct one.

¶72 The affidavit of the Director upon which the majority

relies, claiming the projects would have otherwise been funded by

debt, assumes the County would have satisfied the statutory

prerequisites to authorize and issue debt; however, until the debt is actually issued and the property tax levy increased, any

purported "reduction" is purely conjectural. "Affidavits in

support of a motion for summary judgment must contain evidentiary

facts, of which the affiant has personal knowledge." Hopper v.

12 For example, the County's debt service policy limits bonding to projects that cost at least $250,000 or have a project life of at least five years, and spells out additional requirements depending on the type and length of the project. 13See Reduce, The Oxford English Dictionary 433 (2d ed. 1989) ("To lower, diminish, lessen.").

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City of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139 (1977) (citing

Kroske v. Anaconda Am. Brass Co., 70 Wis. 2d 632, 641, 235

N.W.2d 283 (1975)); see also Wis. Stat. § 802.08(3)(2019–20).

"Portions of affidavits which are made by persons who do not have

personal knowledge or which contain allegations of ultimate facts,

conclusions of law or anything other than evidentiary facts do not

meet the statutory requirements and will be disregarded." Hopper,

79 Wis. 2d at 130 (citing Kroske, 70 Wis. 2d at 641; Walter

Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 652, 158 N.W.2d 387

(1968)). The Director's speculation regarding what might have

happened but for the imposition of the sales and use tax is "not

proper in support of a motion for summary judgment and is

ineffectual to establish evidentiary facts." Id. at 131.

¶73 The Director's assumption that the County would have

pursued bonding for these projects falls far short of fact; because

he is not the sole decisionmaker nor can he foresee the future, he

could not possibly know whether the statutory requirements would

have been met. The County Board must issue debt according to the terms of Wis. Stat. ch. 67 as well as its own debt issuance

policies. For example, Wis. Stat. § 67.045 prohibits the governing

body of a county from issuing bonds unless the county holds a

referendum by which its citizens approve the debt issuance or the

governing body adopts a resolution to issue the debt by a vote of

three-fourths of the members. See Wis. Stat. §§ 67.05(3),14

67.045(1)(a), (f). The Director could not possibly possess any

Wisconsin Stat. § 67.05 governs the procedures for issuing 14

bonds, including requirements for adopting initial resolutions or holding a referendum. See, e.g., Wis. Stat. § 67.05(1)-(3).

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personal knowledge that the debt would have issued, given the

political hurdles to be surmounted.15

¶74 The majority contends the surrounding statutes support

its interpretation.16 They don't. While context is important, the

statutes cited do not alter the plain meaning of Wis. Stat.

§ 77.70; if anything, they mirror its mandatory language. See

Kalal, 271 Wis. 2d 633, ¶46. Wisconsin Stat. §§ 77.705 and 77.706

were enacted to provide an additional funding source for former

Miller Park and Lambeau Field, respectively. Section 77.705

authorizes a "local professional baseball park district" to impose

a sales and use tax, requiring that any moneys transferred from or

to the relevant appropriation accounts "shall be used exclusively

to retire the district's debt." Wis. Stat. § 77.705.

Section 77.706 authorizes a "local professional football stadium

district" to impose a sales tax and use tax, similarly requiring

that any moneys transferred from or to the relevant appropriation

15For example, ¶5 of the affidavit states the Director was "made aware that the [Board] discussed options for borrowing and funding in relation to county infrastructure and capital needs in early 2017"; ¶¶11–16 address steps in the County's budget process; and ¶¶23–38 speak to the County's financial status after the adoption of the sales and use tax. None of these paragraphs support the Director's assertion that the debt would actually have been approved. Further, ¶¶29–30 and 33, addressing the impact on taxpayers if the County "was forced to borrow"——including the extra costs of borrowing and the increase in taxes——cut against the assertion that the County would have successfully pursued borrowing. In light of these considerable expenses, the County may have chosen to fund only some or ultimately none of the projects to mitigate these costs. 16 Majority op., ¶¶42–43.

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accounts "shall be used exclusively to retire the district's debt."

Wis. Stat. § 77.706.

¶75 The majority manufactures a distinction between the

language of these stadium statutes and Wis. Stat. § 77.70,

concluding the legislature is "silent" on how the direct reduction

of the property tax levy should be accomplished, and that it could

have mandated——as it did in Wis. Stat. §§ 77.705 and 77.706——how

to do so.17 This is a distinction without a difference. While

they use different terms because they apply to different funding

sources, §§ 77.705 and 77.706 are structurally equivalent to

§ 77.70. Just as §§ 77.705 and 77.706 require a sales and use tax

be "used exclusively to retire the district's debt," § 77.70

requires that a sales and use tax under that section be imposed

"only for the purpose of directly reducing the property tax

levy[.]" Whatever "contrast" the majority sees in these

statutes,18 each mandates a particular end for which the tax is to

be used: to retire the districts' debt and to directly reduce a

county's property tax levy. The Ordinance neither operates directly nor actually reduces the property tax levy——regardless of

the breadth the majority attaches to "purpose."19

B. The 1998 Attorney General's Opinion and the Impact of Wis. Stat. § 66.0602 ¶76 To the extent the 1998 attorney general's opinion

suggests a county sales and use tax may fund projects not already

17 Id., ¶44. 18 Id. 19 Id., ¶38.

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funded by the property tax levy, the opinion——and the majority's

reliance on it——is wrong. The opinion responded to a simple

allocation question regarding how funds received from a county

sales and use tax may be budgeted by a county board. See Opinion

of Wis. Att'y Gen. to Dennis E. Kenealy, Ozaukee County Corp.

Counsel, OAG 1-98 (May 5, 1998). The attorney general answered,

"such funds may be budgeted to reduce the amount of the overall

countywide property tax levy or to defray the cost of any item

which can be funded by a countywide property tax." Id. at 1.

¶77 The attorney general's opinion compared two budgeting

methods used by counties in determining property tax levy

reductions: The first involved subtracting the net proceeds of

the sales and use tax directly from the total property tax——both

shown as single line revenue items in the budget——to determine the

net property tax that must be levied.20 Id. at 2. The second

20 The attorney general referenced the practice of some counties to reflect sales and use tax revenues on individual property tax bills only as a passing remark, not as one of the two identified methods counties used to demonstrate direct property tax reductions, as the majority claims. See majority op., ¶¶35, 45; Opinion of Wis. Att'y Gen. to Dennis E. Kenealy, Ozaukee County Corp. Counsel, OAG 1-98 (May 5, 1998). It is not clear Wis. Stat. § 77.70 even authorizes this method; the attorney general clarified that counties cannot "implement a direct system of tax credits to individual property owners through distribution of property tax bills[.]" OAG 1-98 at 2. Instead, Section 77.70 requires that the "property tax levy" be reduced.

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involved offsetting the cost of individual property-tax-funded

budget items by the net proceeds of the sales and use tax. Id.

With regard to offsetting the cost of new as opposed to existing

projects, the attorney general opined:

It would be unreasonable to construe the statutory restriction so that counties which had already started certain projects could use sales and use tax revenues to complete them while other counties contemplating the initiation of similar projects could not use sales and use tax revenues to fund them at all. . . . Counties may therefore also budget the net proceeds of the sales and use tax as an offset against the cost of any individual budgetary item which can be funded by the countywide property tax. Id. at 2–3. The majority claims the attorney general's opinion

relied on the "essential fungibility of money and the principle

that the same reduction in the property tax levy occurs regardless

of whether the proceeds are budgeted as an offset on the bills of

taxpayers or used to fund a specific item."21 The majority errs

by assuming away the statutory and democratic prerequisites for

issuing debt. It is unknowable whether the County's voters or a

Legislative history confirms this conclusion. 1985 Senate Bill 376, later enacted as 1985 Wisconsin Act 41, included an early amendment limiting the sales tax revenue "only for the purpose of property tax relief." Drafting File, 1985 Wis. Act 41, Legislative Reference Bureau, Madison, Wis. The bill was later amended to include the pertinent language as it currently exists, substituting "property tax relief" with "directly reducing the property tax levy." Id. Senator Feingold explained his amendment requiring the tax provide "property tax relief" "should ensure that the revenue [the sales tax] raises goes directly toward lowering property tax bills." See Measure links property tax relief to county sales tax, Waunakee Tribune, Oct. 17, 1985 at 7. The change in language to directly reduce the levy indicates § 77.70 does not encompass the tax-bill-offset method. 21 Majority op., ¶45.

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super majority of the County Board would have approved bonding for

the County's proposed new projects. Because no debt was issued to

fund the projects, no corresponding property tax increase actually

occurred. Consequently, there was nothing to reduce.

¶78 Even if the attorney general's analysis was correct at

the time, it no longer accurately reflects the state of property

tax "fungibility."22 The attorney general released his opinion in

1998, before the legislature enacted the levy limits in 2005. See

2005 Wis. Act 25, § 1251c. This statute fundamentally altered the

fungibility principle on which the opinion relied because it

limited the extent to which counties can increase the property tax

levy at will. See Wis. Stat. § 66.0602(2).

¶79 The majority does not dispute that the County could not

raise the property tax levy under Wis. Stat. § 66.0602(2) to pay

for all of its new projects except under § 66.0602(3)(d)2. That

statutory exception allows the County to increase the property tax

levy in an amount its new projects would require only by issuing

general obligation debt.23 Quite conveniently, the County asserts and the majority agrees it would have issued general obligation

22The attorney general's opinion does not come close to contemplating the "careful budgeting process" that the County asserts will be upended by concluding the Ordinance is unlawful. The County emphasized that the circuit court found its budget decisions "were made by 'intelligent and talented people' who conducted 'ample research and put considerable thought and effort into determining how the sales and use tax revenue would reduce the property tax levy' and fund new projects." This might be true, but it is hardly the type of situation the attorney general's opinion considered in distinguishing an indirect reduction from a direct reduction. 23 See majority op., ¶¶50–51.

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debt to pay for the projects. No one, however, submits any proof

of the political will to do so.

¶80 The County's bare assertion flies in the face of Wis.

Stat. § 66.0602(2), which prohibits the County from increasing the

property tax levy to pay for the projects. Under that statute,

the County could not have increased its 2018 property tax levy by

more than approximately $1 million dollars, but it sought to spend

approximately $18 million in sales and use tax revenues that year

to pay for its projects. Undeterred, the majority dismisses this

concern by citing the exception under § 66.0602(3)(d)2. for debt

service payments.24 That exception only exacerbates the majority's

analytical problems. Instead of providing the County the loophole

it seeks, § 66.0602(3)(d)2. introduces an intervening step in the

analysis of what "can be funded by a countywide property tax."

See OAG 1-98 at 4.

¶81 Applying the attorney general's analysis under the

current statutory scheme, the project funding generated by the

Ordinance constitutes at best only "indirect . . . property tax relief" because § 66.0602(2) prevents the County from directly

increasing the property tax levy to pay for the projects. See OAG

1-98 at 3 ("The term 'directly' has meaning in those instances

where budgetary items cannot be funded through a countywide

24The attorney general's opinion in no way endorsed or even contemplated the use of debt to evade property tax restrictions; rather, that opinion addressed whether new spending funded by sales and use tax revenue could have been "funded by a countywide property tax," not whether a county could have obtained funds through debt financing or some other funding option. See OAG 1- 98 at 3.

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property tax."). The County's plan requires an "intermediate step"

to reduce the property tax levy: issuing debt. See id. (defining

"directly" as "without any intermediate step"). Because issuing

debt requires the approval of County voters or a super majority of

the County Board, that intermediate step cannot be taken as a

foregone conclusion. While money may be fungible, political will

is not.

¶82 The County cannot sidestep Wis. Stat. § 66.0602(2) by

simply asserting it would have issued the debt. At a minimum,

§ 66.0602(2) and (3) demonstrate the indirectness of the County's

purported reduction in the property tax levy. Issuing debt for

the entire suite of projects may not have been politically or

practically feasible under the levy limit statute. The majority

and the County conclude that because the County legally could have

raised the levy under § 66.0602(3)(d)2., it would have actually

done so. Setting aside the statutory hurdles, the County itself

warned of "adverse consequences" from taking on "enormous debt,"

including "significant risk" of a decreased credit rating, additional interest payments, and "passing the interest costs on

to county property-taxpayers for many years[.]" It cannot have it

both ways. Increasing the property tax levy beyond the levy limit

requires multiple steps, including issuing debt only after

obtaining the political approvals mandated under Wis. Stat.

§§ 67.045 and 67.05, among other constraints. Merely assuming the

County could have satisfied these prerequisites circumvents the

express language of Wis. Stat. § 77.70.

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¶83 As a final note regarding the attorney general's

opinion, the County's argument that the legislature has acquiesced

to the attorney general's interpretation of Wis. Stat. § 77.70

because it has not amended the statute in response to the opinion

should be rejected.25 Although the majority declines to address

the issue because it erroneously endorses the opinion, this court

has explained that legislative acquiescence is a flimsy basis on

which to support a prior construction of a statute because

"[n]umerous variables, unrelated to conscious endorsement of a

statutory interpretation, may explain or cause legislative

inaction." Wenke v. Gehl Co., 2004 WI 103, ¶33, 274 Wis. 2d 220,

682 N.W.2d 405; see also Johnson v. Transp. Agency, 480 U.S. 616,

672 (1987) (Scalia, J., dissenting) ("[I]t [is] impossible to

assert with any degree of assurance that congressional failure to

act represents (1) approval of the status quo, as opposed to (2)

inability to agree upon how to alter the status quo, (3)

unawareness of the status quo, (4) indifference to the status quo,

or even (5) political cowardice."). "Our judicial duty is to say

25The legislature did amend Wis. Stat. § 77.70 in 2017 to create an exception to the requirement that the sales and use tax be imposed "only for the purpose of directly reducing the property tax levy" for a county that has an electronics and information technology manufacturing zone under Wis. Stat. § 66.0621(3m). See 2017 Wis. Act 58, § 34e. Section 66.0621(3m) provides that a county "may issue bonds under this section whose principal and interest are paid only through sales and use tax revenues imposed by the county under s. 77.70." See 2017 Wis. Act 58, § 18k. The legislature's specific carve-out for § 66.0621(3m) within § 77.70 reinforces the conclusion that the relationship between debt service payments under § 66.0602(3)(d)2. and sales and use taxes under § 77.70 is indirect; the majority's interpretation renders this amendment superfluous.

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what the law is, not to surmise meaning from legislative

quiescence. Legislative inaction cannot support an interpretation

of the statute that is contrary to the plain meaning of the

language used in the statute." Winebow, Inc. v. Capitol-Husting

Co., 2018 WI 60, ¶53, 381 Wis. 2d 732, 914 N.W.2d 631 (Rebecca

Grassl Bradley, J., dissenting).

¶84 The attorney general's opinion does not account for the

current statutory constraints on a county's ability to increase

the property tax levy. Its reasoning rests on the attorney

general's personal assessment of the reasonableness of the

statute, prompting him to choose a construction that avoids the

actual and unambiguous meaning of the language, which the attorney

general deemed "unreasonable." For that reason alone the majority

should have rejected the opinion. The absurd or unreasonable

results canon of statutory construction applies only "when an

interpretation would render the relevant statute contextually

inconsistent or would be contrary to the clearly stated purpose of

the statute." State v. Grunke, 2008 WI 82, ¶31, 311 Wis. 2d 439, 752 N.W.2d 769; see also Scalia & Garner, supra at 237 ("[E]rror-

correction for absurdity can be a slippery slope. It can lead to

judicial revision of public and private texts to make them (in the

judges' view) more reasonable."). It is a misuse of the canon to

invoke it as a tool for discarding the plain meaning of an

unambiguous statute in favor of an interpretation the attorney

general (or a court) prefers. "The oddity or anomaly of certain

consequences may be a perfectly valid reason for choosing one textually permissible interpretation over another, but it is no

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basis for disregarding or changing the text." See Scalia & Garner,

supra at 237. The clearly stated purpose of Wis. Stat. § 77.70 is

"directly reducing the property tax levy[.]" The County admits it

instead enacted the Ordinance "for the purpose of funding capital

projects[.]" Regardless of whether the majority feels the

legislature's chosen restriction on sales and use tax revenue is

"unreasonable," the County was compelled to abide by it but it

failed to do so.

C. County Budgeting

¶85 Brown County's budgeting procedures show the Ordinance

is unlawful. The County defines "capital project" as "an

investment in a capital improvement that has a project cost of at

least $250,000, is generally non-recurring, and has a service life

of five years or more." These projects "are proposed and adopted

as part of the annual County budget process." Further, "[f]inal

approval of bonding projects [is] subject to: 1) inclusion in the

Project Authorization Resolution and 2) financing being secured if

funded by bonds or notes. Both steps in this process are subject to final approval by the County Board."

¶86 The County's 2018 budget listed the nine capital

projects funded by the Ordinance——subdivided into seventeen

"Projects"——under the "Proposed" category, defined as "Projects

that are being submitted to the County Board for its consideration

and action." In contrast, projects categorized as "Bonded" are

those "that have been through the Project Resolution Approval

process and for which financing has been secured and approved." Consequently, the capital projects at issue had not been approved

for financing——they represented new spending projects not already

funded by the property tax levy.26

¶87 In his affidavit, the Director stated:

I am familiar with Brown County's May 17, 2017 Ordinance enacting a Sales and Use Tax for the purpose of funding capital projects which it is my understanding and belief would otherwise have been funded through the issuance of additional debt obligations.

It is my belief that revenues to Brown County from the Sales and Use Tax will benefit Brown County taxpayers by lowering the property tax rate, reducing interest expenses on financing projects, and having non-County residents assist with financing through purchases subject to the sales and use tax. The Director admitted the tax was enacted "for the purpose of

funding capital projects which . . . would otherwise have been

funded through the issuance of additional debt obligations"——not

for the purpose of directly reducing the property tax levy as Wis.

26The County argues BCTA "would rather have counties plan capital projects, borrow millions of dollars to pay for those projects, take on the costly interest expense associated with the debt, increase property tax levies to pay for the debt, absorb all of the professional costs and fees associated with debt issuance, and then impose a sales and use tax to decrease the debt burden." If the County cannot pay for its projects by increasing its property tax levy under Wis. Stat. § 66.0602(2), then this is what Wis. Stat. § 77.70 requires to directly reduce the property tax levy using sales and use tax revenue. Alternatively, the County could keep its spending within the limits of its property tax revenue and use the sales and use tax revenue to reduce the property tax levy as the statute says. While skirting the statutory requirements may enable the County to circumvent the political hurdles associated with saddling its citizens with costly debt, the County's complaints about the practicalities of statutory compliance are properly addressed to the policymakers in the legislature rather than this court. See United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting) ("For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.").

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Stat. § 77.70 requires. Tellingly, in the 2018 Brown County

Executive Budget Message, the County Executive extolled the

benefits of the new sales and use tax without any mention of

reducing the property tax levy:

Through the use of a temporary 72-month sales tax, we will cut the county's debt in half, eliminate bonding for six years, avoid mountains of interest by paying cash for projects, and make over $147 million in needed investments to county infrastructure and facilities which have been put off for far too long. ¶88 Unless the property tax levy had already accounted for

these projects——for example, if the debt had been issued and the

property tax levy increased——the purpose of the Ordinance is not

to reduce the levy at all. Rather, the purpose is to avoid

increasing the levy through additional debt obligations. While

this purpose might be fiscally sound and politically attractive,

it does not satisfy Wis. Stat. § 77.70. Avoiding an increase is

not equivalent to a direct reduction. While the Director could

know the County would have sought to fund the projects through

issuing debt, it is simply not the case that he——or anyone——could

know the debt would actually have been approved and issued.

¶89 The Director also claimed the Ordinance "will result in

direct property tax savings every year from 2019 through 2023."

Any "savings" are illusory. The Director explained:

If the Sales Tax remains in place, taxes on a property assessed at $163,200 (the median value of a home in Brown County) would decrease by $140.20 between 2018 and 2023.

However, if there was no Sales Tax, the issuance of general obligation debt would result in taxes on that same median property increasing by $356.48 between 2018 and 2023.

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The difference is a savings of $496.68 for the typical Brown County homeowner of a median property as a direct result of the sales and use tax. While this calculation is useful for the County to compare the

fiscal impact of alternative funding mechanisms, it does not show

an actual reduction in the property tax levy. The County

calculates the property tax savings based on a comparison between

two alternatives——imposing the sales and use tax and increasing

the debt levy. Because bonding represented an alternative method

rather than the status quo, its avoidance does not produce a

reduction in the tax levy under Wis. Stat. § 77.70. The proper

baseline for determining whether the sales and use tax "directly

reduc[es] the property tax levy" is the existing property tax levy.

¶90 The County is using its sales and use tax to "pay[] cash"

for new capital projects.27 Wisconsin Stat. § 77.70, however,

allows the sales and use tax to be used only to reduce the property

tax levy. By paying for the projects up front with sales and use

tax revenues instead of bonding, the County decided the costs of

those projects should be borne by sales and use taxpayers instead

of property taxpayers. This was not the County's decision to make.

Wisconsin Stat. § 77.70 limits the purpose of the sales and use

tax to "directly reducing the property tax levy"; the legislature

accordingly reserved for itself the policy choice of allocating

tax burdens among different payors. For example, the County

27At a County Executive Committee meeting, the County Executive stated the Ordinance "would contain the specific numbers for each of the buckets, but not the specific projects because in the end, the projects are approved through the budget process. What is changing is that the County would be paying cash for projects that we know are coming forward instead of increasing debt and increasing the property tax levy to pay for the projects."

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Executive "oppose[d] county property taxpayer funding of the new

arena." The County Executive's desire to prematurely offload new

project funding from property taxpayers to sales and use taxpayers

is inconsistent with the statutory limitation on the imposition of

sales and use taxes: to directly reduce the property tax levy.

Under the statutory scheme, property taxpayers must assume the

initial burden of debt to fund new projects, provided the County

Board musters the political capital to pursue issuing debt. Only

then may the increased property tax levy be reduced by the sales

and use tax. By skipping this step, the County surely avoids the

burden of obtaining its citizens' consent to bearing the expense

of the Board's preferred projects, but it violates the law in doing

so, not to mention hiding from property taxpayers the future fiscal

impact of the Board's spending.28

¶91 The sales and use tax and the property tax impact

different groups in different ways, and it is the prerogative of

the legislature to determine how those burdens should fall. For

example, "[t]he sales tax has generally been thought to be inherently regressive because the proportion of an individual's or

family's income devoted to consumption declines as income

increases. Persons at lower income levels, therefore, tend to pay

a larger share of their income in sales tax." See Sydney Emmerich,

Sales and Use Tax, Legislative Fiscal Bureau, Informational Paper

28For example, one new sales and use tax-funded project in the proposed 2019 Executive Budget——the "Community Treatment Center Crisis Assessment Center"——was estimated to result in a "significant" increase in salary and fringe benefits, necessitating a levy of $1,442,024.

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#5, 3 (Jan. 2021); see also Measure links property tax relief to

county sales tax, Waunakee Tribune, Oct. 17, 1985 at 7 (quoting

Senator Feingold as stating, "The sales tax involves some

fundamental inequities which make it basically an unattractive

tax").

¶92 Historically, Wisconsin has relied heavily on property

taxes. See Noga Ardon, Property Tax Level in Wisconsin,

Legislative Fiscal Bureau, Informational Paper #15, 3 (Jan. 2021)

("Wisconsin local governments' heavy reliance on the property tax

has contributed to the state's above-average property tax

levels."). At the time the legislature enacted 1985 Wisconsin Act

41, it was particularly concerned with high property tax levels.

See, e.g., Measure links property tax relief to county sales tax,

at 7 (quoting Senator Feingold as stating, "The property tax is

still the biggest tax problem facing this state"). "[R]esidential

and commercial property have borne increasing shares of the tax

burden, while decreasing shares have been borne by manufacturing

and other property." See Property Tax Level in Wisconsin, at 4. ¶93 Against the backdrop of these documented concerns, Wis.

Stat. § 77.70 reflects the legislature's deliberate policy choice

to restrict counties to imposing sales and use taxes "only for the

purpose of directly reducing the property tax levy[.]" The

County's unlawful imposition of the sales and use tax to avoid

issuing debt for financing its increased spending shifts tax

burdens in a manner not contemplated by § 77.70. The statute

promotes fiscal restraint; it does not provide a blank check for the County to pursue otherwise unfunded projects. In sanctioning

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the County's budgeting method, the majority upends the policy

choices the legislature enacted in § 77.70.

D. CONCLUSION

¶94 Wisconsin Stat. § 77.70 expressly provides that "county

sales and use taxes may be imposed only for the purpose of directly

reducing the property tax levy[.]" The Ordinance instead avoids

a levy increase associated with issuing debt. While the County

attempts to obfuscate the issue by pointing to its "careful

budgeting process" and the "adverse consequences" of concluding

the Ordinance is unlawful, the legal conclusion is simple: The

County could not increase its property tax levy under Wis. Stat.

§ 66.0602(2) to pay for its proposed new projects, so it would

have to rely on the exception to pay debt service under

§ 66.0602(3)(d)2. Because the County never sought the requisite

approval for debt issuance under Wis. Stat. ch. 67, the debt levy

has not been increased. The sales and use tax instead paid

directly for the new projects rather than being used to directly

reduce the property tax levy, which actually increased after the County enacted the Ordinance. Instead of reducing the property

tax levy, the County misused § 77.70 to avoid an increase in

property taxes to pay for the County's preferred projects. Because

the County's sales and use tax avoided an increase in the property

tax levy rather than reducing it, the Ordinance violates § 77.70

and should be void. The majority instead upholds it, in derogation

of § 77.70; therefore, I respectfully dissent.

¶95 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.

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