Vincent Milewski v. Town of Dover

• Court: Wisconsin Supreme Court
• Decided: July 7, 2017
• Docket: 2015AP001523
• Status: Published

Opinion

2017 WI 79

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP1523 COMPLETE TITLE: Vincent Milewski and Morganne MacDonald, Plaintiffs-Appellants-Petitioners, v. Town of Dover, Board of Review for the Town of Dover and Gardiner Appraisal Service, LLC as Assessor for the Town of Dover, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis. 2d 262, 881 N.W.2d 359 (2016 – Unpublished)

OPINION FILED: July 7, 2017 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 19, 2017

SOURCE OF APPEAL: COURT: Circuit COUNTY: Racine JUDGE: Phillip A. Koss

JUSTICES: CONCURRED: ROGGENSACK, C.J. concurs (opinion filed). ZIEGLER, J. concurs, joined by GABLEMAN, J. (opinion filed). DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). NOT PARTICIPATING:

ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs filed by Richard M. Esenberg, Brian W. McGrath, Thomas C. Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee, and oral argument by Richard M. Esenberg.

For the defendants-respondents Town of Dover and Board of Review for the Town of Dover, there was a brief filed by Dustin T. Woehl, Jason P. Gehring, and Kasdorf Lewis & Swietlik, SC, Milwaukee, and oral argument by Jason P. Gehring. For the defendant-respondent Gardiner Appraisal Service, LLC, there was a brief filed by Mitchell R. Olson and Axley Brynelson, LLP, Madison, and oral argument by Timothy M. Barber.

An amicus curiae brief was filed on behalf of Institute for Justice by Lee U. McGrath and Meagan A. Forbes and Institute for Justice, Minneapolis.

An amicus curiae brief was filed on behalf of Wisconsin REALTORS® Association by Thomas D. Larson and Wisconsin REALTORS® Association, Madison.

2 2017 WI 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

Plaintiffs-Appellants-Petitioners, FILED v. JUL 7, 2017 Town of Dover, Board of Review for the Town of Diane M. Fremgen Dover, and Gardiner Appraisal Service, LLC, As Clerk of Supreme Court Assessor for the Town of Dover,

Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 DANIEL KELLY, J. Vincent Milewski and Morganne

MacDonald (collectively, the "Milewskis") own a home in the Town

of Dover. They want to challenge a tax assessor's recent

revaluation of their property. But they also want to prevent

the tax assessor from inspecting the interior of their home as a

part of that process. The Town says our statutes require them No. 2015AP1523

to pick one or the other because they cannot do both.1 The

Milewskis ask us whether the Town can put them to this choice.2

I. BACKGROUND

¶2 The Milewskis bring us a discrete question, but we see

that the answer will play out against an intricate and

delicately balanced set of tax statutes and constitutional

provisions. Although the following background provides little

more than a broad sketch of Wisconsin's system of real property

taxation, it should be enough to place the Milewskis' question

in an understandable context.

A. Wisconsin's tax assessment scheme

¶3 Article VIII, section 1 of the Wisconsin Constitution,

known as the Uniformity Clause, requires the uniform taxation of

real property,3 and Wis. Stat. ch. 70 provides the general

1 We will collectively refer to all the respondents as the "Town," unless the context requires otherwise. 2 We review the unpublished decision of the court of appeals, Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op. (Wis. Ct. App. May 4, 2016), affirming the Racine County circuit court's order dismissing the Milewskis' claims (the Honorable Phillip A. Koss, presiding). 3 The Uniformity Clause provides that:

The rule of taxation shall be uniform but the legislature may empower cities, villages or towns to collect and return taxes on real estate located therein by optional methods. Taxes shall be levied upon such property with such classifications as to forests and minerals including or separate or severed from the land, as the legislature shall prescribe. Taxation of agricultural land and undeveloped land, both as defined by law, need not be uniform with the taxation of each other nor with the taxation of other (continued) 2 No. 2015AP1523

procedure by which municipalities carry out this duty. In

Wisconsin, "[r]eal property shall be valued by the assessor in

the manner specified in the Wisconsin property assessment manual

provided under [Wis. Stat. § 73.03(2a)] from actual view or from

the best information that the assessor can practicably

obtain . . . ." Wis. Stat. § 70.32(1) (2015-16)4 (emphasis

added). The Wisconsin Property Assessment Manual provides that

"[i]n the case of real property, actual view requires a detailed

viewing of the interior and exterior of all buildings and

improvements and the recording of complete cost, age, use, and

accounting treatments." Wis. Dep't of Revenue, Wisconsin

Property Assessment Manual, 10-55 (2017).

¶4 If the property owner is dissatisfied with the

assessor's valuation, he may bring his objection to the local

real property. Taxation of merchants' stock-in-trade, manufactures' materials and finished products, and livestock need not be uniform with the taxation of real property and other personal property, but the taxation of all such merchants' stock-in-trade, manufacturers' materials and finished products and livestock shall be uniform, except that the legislature may provide that the value thereof shall be determined on an average basis. Taxes may also be imposed on incomes, privileges and occupations, which taxes may be graduated and progressive, and reasonable exemptions may be provided.

Wis. Const. art. VIII, § 1. 4 All subsequent references to the Wisconsin statutes are to the 2015-16 version unless otherwise indicated.

3 No. 2015AP1523

board of review. Wis. Stat. § 70.47(7)(a).5 He may do so,

however, only after he has first allowed a tax assessor to view

his property:

No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. Wis. Stat. § 70.47(7)(aa). At the board of review hearing, the

owner may present evidence in support of what he believes to be

the proper valuation. Wis. Stat. § 70.47(8). Based on that

evidence, the board of review decides whether to adjust the

assessor's valuation. Wis. Stat. § 70.47(9)(a). If the owner

disagrees with the board of review's conclusion, he may seek

certiorari review by the circuit court. Wis. Stat. § 70.47(13).

¶5 Some property owners, however, may want a circuit

court, rather than the town's board of review, to make the

initial determination of whether the assessor's valuation is

accurate. Such an owner may file a claim for excessive

assessment in the circuit court under Wis. Stat. § 74.37(2). He

must still, however, follow the pre-hearing procedures for

challenging the valuation before the board of review, as

outlined above: "No claim or action for an excessive assessment

may be brought under this section unless the procedures for

5 Each town creates its own board of review. The town's common council decides who sits on the board, but the members typically include the mayor, town clerk, and such other officers as the council should designate. See Wis. Stat. § 70.46(1).

4 No. 2015AP1523

objecting to assessments under [§] 70.47 . . . have been

complied with." Wis. Stat. § 74.37(4)(a). After completing

these pre-hearing procedures, the owner asks the board of review

for a hearing waiver. Wis. Stat. § 70.47(8m). Once granted,

the owner may file his complaint in the circuit court.

B. The Town of Dover Revalues the Milewskis' Property

¶6 In 2013, the Town of Dover reassessed all the

properties in its jurisdiction and contracted with Gardiner

Appraisal Service, LLC ("Gardiner") to assign a value to each

such property. Gardiner's attention eventually turned to the

Milewskis' home (the "Property"), which had a pre-2013 assessed

value of $273,900, and an estimated fair market value of

$277,761. Gardiner sent the Milewskis a notice stating that it

"must view the interior of your property for the Town wide

revaluation program which is in progress" and that "[a]n

assessor will stop to view your property on Tues, Aug 20 at 6:10

pm."

¶7 When the assessor arrived, Ms. MacDonald invited him into their yard and told him he was welcome to view the

Property's exterior; however, she further informed him he would

not be allowed inside the home. The assessor declined Ms.

MacDonald's invitation to view the Property's exterior and left

without asking her any questions about the Property.

¶8 A few months later, the Milewskis received a certified

letter from Gardiner stating that the assessor had not "viewed

the interior of your buildings" and asked that they schedule a time for him to do so. The Milewskis sent the Town a letter 5 No. 2015AP1523

objecting to the requested interior inspection. Gardiner made

no further attempt to view the interior of the Property and

assessed it at a value of $307,100——a 12.12 percent increase

from the previous assessment of $273,900.6

¶9 After learning of the new assessment, Mr. Milewski

attended open book sessions to review the assessed values of

other properties in the subdivision.7 Based on his research, Mr.

Milewski learned that of the 43 parcels in the subdivision, only

four properties, including the Milewskis', did not have their

interiors inspected during the 2013 assessment. Of those four

properties, all four saw an increase in their initial

assessment. The other 39 properties that did have their

interiors inspected saw their assessed value decrease. After

receiving the initial assessments, the owners of two of the four

properties that had not had their interiors inspected allowed

Gardiner to conduct an inspection of their home's interior and

the assessments for those properties were then reduced. Thus,

the only two properties in the 43-parcel subdivision that saw an increased assessment during the 2013 revaluation were those two

properties where the owners did not consent to Gardiner's view

of their home's interior.

6 The percentages we use throughout this opinion are those reflected in the amended complaint. 7 Once the assessor has recorded the assessed values of the town's property on the assessment rolls, the town clerk makes the rolls available for public inspection during what is known as "open book sessions." Wis. Stat. § 70.45.

6 No. 2015AP1523

C. The Milewskis Protest the Revaluation of the Property

¶10 The Milewskis filed an "Objection Form for Real

Property Assessment" with the Town, and about two weeks later,

they appeared at the November 25, 2013 Dover Board of Review

("BOR") hearing, where they intended to object to the assessment

of their Property. However, because the BOR determined they had

refused "a reasonable request by certified mail of the assessor

to view [their] property," the BOR refused to hear their

objection.

¶11 The Milewskis paid their 2013 property taxes and filed

a Notice of Claim and Claim with the Town Clerk under Wis. Stat.

§ 74.37, alleging the Property assessment was excessive and that

the Town had violated their Fourth Amendment rights. The Town

denied the Milewskis' claim by taking no action on it within 90

days. See Wis. Stat. § 74.37(3)(a). The Milewskis later

followed the same procedure for their 2014 property taxes, with

the same result.

¶12 The Milewskis commenced this case with a complaint that included a claim for excessive assessment under Wis. Stat.

§ 74.37, and a claim that Wis. Stat. § 70.47(7)(aa) and Wis.

Stat. § 74.37(4)(a), as applied to the Milewskis, are

unconstitutional because they conditioned their right to

challenge the assessor's valuation of the Property on submission

to a search of their home. The parties filed cross-motions for

summary judgment. The circuit court granted the Town's, the

BOR's, and Gardiner's motions and dismissed the Milewskis'

7 No. 2015AP1523

claims. The court of appeals affirmed the circuit court, and we

granted the Milewskis' petition for review.

II. STANDARD OF REVIEW

¶13 Summary judgment is appropriate when there are no

genuine disputes as to any material facts and the moving party

is entitled to judgment as a matter of law. See Wis. Stat.

§ 802.08(2). We review a grant of summary judgment de novo,

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

Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373.

While our review is independent from the circuit court and court

of appeals, we benefit from their analyses. See Preisler v.

Gen. Cas. Ins. Co., 2014 WI 135, ¶16, 360 Wis. 2d 129, 857

N.W.2d 136.

¶14 A facial challenge to a statute's constitutionality

also presents a question of law that we review de novo. Aicher

v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99,

613 N.W.2d 849. We presume statutes are constitutional; the

party asserting the constitutional infirmity must establish its argument beyond a reasonable doubt. State v. Wood, 2010 WI 17,

¶15, 323 Wis. 2d 321, 780 N.W.2d 63.

¶15 The Milewskis say they are not contesting the

constitutionality of the statutes in question, only how they

were applied to them. In such a challenge there is no

presumption the statute has been applied in a constitutional

manner. In re Gwenevere T., 2011 WI 30, ¶48, 333 Wis. 2d 273,

797 N.W.2d 854 ("neither party faces a presumption that the statute was constitutionally applied."). We assume the 8 No. 2015AP1523

constitutionality of the statutes, and require the challenger to

prove the unconstitutional application of the statutes beyond a

reasonable doubt. Soc'y Ins. V. LIRC, 2010 WI 68, ¶27, 326

Wis. 2d 444, 786 N.W.2d 385; In re Gwenevere T., 333

Wis. 2d 273, ¶47 (In an "as-applied" challenge, "the presumption

that the statute is constitutional applies, just as it does in a

facial challenge.").

III. DISCUSSION

¶16 The Milewskis understand themselves to be on the horns

of a dilemma. The Town told them they must either submit to a

tax assessor's inspection of the interior of their home or lose

the right to challenge the revaluation of their Property. The

Milewskis say the Town may not make them ransom their due

process rights with a search of their home. The Fourth and

Fourteenth Amendments, they say, protect the sanctity of their

home as well as their right to contest the Town's revaluation.8

Put to the choice between the two, the Milewskis opted not to

allow the tax assessor's inspection. So the Board of Review refused to hear their challenge.

¶17 The Town sees no dilemma. Instead, it sees only a

polite request to enter a home to perform the reasonable task of

determining how much it is worth so that the Town may properly

allocate the tax burden, as contemplated by our statutes and the

8 The Fourth Amendment applies to the states through the Fourteenth Amendment. See, e.g., State v. Kramer, 2009 WI 14, ¶18 & n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

9 No. 2015AP1523

Wisconsin Constitution. See Wis. Const. art. VIII, § 1; Wis.

Stat. § 70.01. The Town readily admits the Milewskis may not

challenge their assessment if they do not grant the inspection

request. But it maintains that a tax assessor's "viewing" of

the interior of the Milewskis' property is not a "search" within

the meaning of the Fourth Amendment. Even if such a viewing

constitutes a search, the Town says, it is either self-evidently

reasonable, or it is exempted from the Fourth Amendment's

operation by the "compelling 'special' need to look inside

people's homes" to satisfy the constitutional requirement that

taxation of all properties in the Town be uniform. In any

event, the Town says, one of the alleged horns is missing, so

there can be no dilemma.

¶18 The task before us is straightforward. First, we must

determine whether the Milewskis' situation affects the

constitutionally-protected rights they asserted. So we will

examine whether there is a due-process right to contest a tax

assessor's valuation of real property, and whether a tax assessor's nonconsensual, warrantless inspection of the interior

of a home would be an unreasonable search. Second, if this

situation really does implicate two constitutionally-protected

rights, we will inquire into whether the exercise of one can be

conditioned on surrender of the other. And finally, if this

conditioning is impermissible, we must determine whether it

results from an inexorable statutory command, or is instead the

result of how the Town applied the statutes to the Milewskis.

10 No. 2015AP1523

A. Rights Claimed by the Milewskis

1. Due Process ¶19 The Milewskis were unable to challenge the revaluation

of their Property before the Board of Review because the Town

said Wis. Stat. § 70.47(7)(aa) rebuffs all those who do not

first submit to a tax assessor's inspection of the interior of

their homes. And they found the courthouse doors barred because

Wis. Stat. § 74.37(4)(a) requires them to follow the procedural

requirements of § 70.47, including the interior home inspection, before filing an excessive assessment claim. So their taxes

have increased, but without any corresponding opportunity for

administrative or judicial review of the added burden.

¶20 The Milewskis say the Town may not impose a tax that

is not ultimately subject to judicial review without violating

their due-process rights. A due-process challenge requires the

complainant to establish two components. First, she must prove

she has been deprived of a recognized right. Aicher, 237

Wis. 2d 99, ¶80. And second, she must prove that she has not

been afforded process commensurate with the deprivation. Id. The focus of such claims is not on whether the State may

infringe the right in question, but whether it has engaged the

proper procedure in doing so. "In procedural due process

claims, the deprivation by state action of a constitutionally

protected interest in 'life, liberty, or property' is not in

itself unconstitutional; what is unconstitutional is the

deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990). This

11 No. 2015AP1523

constitutional guarantee protects an individual from the

erroneous exercise of the State's authority. "Procedural due

process rules are meant to protect persons . . . from the

mistaken or unjustified deprivation of life, liberty, or

property." Carey v. Piphus, 435 U.S. 247, 259 (1978). "Such

rules 'minimize substantively unfair or mistaken deprivations

of' life, liberty, or property by enabling persons to contest

the basis upon which a State proposes to deprive them of

protected interests." Id. at 259–60.

¶21 The United States Constitution specifically extends

the guarantee of due process to the deprivation of property:

"No state shall . . . deprive any person of life, liberty, or

property, without due process of law . . . ." U.S. Const.

amend. XIV, § 1. Our Wisconsin constitution provides that

"[a]ll people are born equally free and independent, and have

certain inherent rights; among these are life, liberty and the

pursuit of happiness; to secure these rights, governments are

instituted, deriving their just powers from the consent of the governed." Wis. Const. art. 1, § 1. Although the text of the

U.S. and Wisconsin constitutional provisions differ, they

"provide identical procedural due process protections." Cty. of

Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 393, 588

N.W.2d 236 (1999).

¶22 For constitutional purposes, a tax is a deprivation of

property: "[E]xaction of a tax constitutes a deprivation of

property . . . ." McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 12 No. 2015AP1523

U.S. 18, 36 (1990). Consequently, a state imposing a tax "must

provide procedural safeguards against unlawful exactions in

order to satisfy the commands of the Due Process Clause." Id.

¶23 We know the nature of these safeguards well: "The

elements of procedural due process are notice and an opportunity

to be heard, or to defend or respond, in an orderly proceeding,

adapted to the nature of the case in accord with established

rules." State v. Thompson, 2012 WI 90, ¶46, 342 Wis. 2d 674,

818 N.W.2d 904 (quoting 16C C.J.S. Constitutional Law § 1444, at

188 (2005)); see also Penterman v. Wis. Elec. Power Co., 211

Wis. 2d 458, 474, 565 N.W.2d 521 (1997) (Due Process "entitles

the individual to a fair opportunity to present his or her

claim."). The review must be "adequate, effective, and

meaningful." Bounds v. Smith, 430 U.S. 817, 822 (1977),

overruled in part on other grounds by Lewis v. Casey, 518

U.S. 343 (1996). Whether the process is pre-deprivation or

post, it must certainly occur:

[W]e have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, . . . [but] it is well established that a State need not provide predeprivation process for the exaction of taxes. McKesson Corp., 496 U.S. at 37 (internal citations and marks

omitted).

¶24 The Milewskis have been subjected to a tax——a

deprivation of property——but they have been forbidden any

process by which to challenge it. So, absent an adequate explanation for how this came to pass, they have been denied

13 No. 2015AP1523

their Fourteenth Amendment due-process rights.9 The Town says

there has been no violation because the Milewskis made the

9 The dissent says one must keep "two realities firmly in mind":

¶126 One. The Town's assessor did not enter the interior of the Milewskis' home. No search of the Milewskis' home occurred.

* * *

¶128 Two, the Milewskis have received full due process hearings in three courts——in the circuit court, in the court of appeals, and in this court. Furthermore, the Milewskis retained and exercised rights under the statutes to a hearing in which they challenged the assessment on specified grounds.

Dissent, ¶¶125-26, 128. The first of these "realities" is important only if the second is true. It is not.

The Board of Review, relying on Wis. Stat. § 70.47(7)(aa), denied the Milewskis' request to appear and present their challenge to the reassessment because they had refused the home inspection. The circuit court did not address the assessment because it concluded there was no constitutional violation in requiring the Milewskis to allow a home inspection as a precondition to its challenge. The court of appeals reviewed and affirmed this determination. And we are addressing the constitutionality of the statutory scheme, not the assessment of the Milewskis' home. So at no time have the Milewskis been able to present their excessive assessment claim to any tribunal.

Not even the Town attempted the dissent's contra-factual argument. Instead, it candidly acknowledged that the Milewskis lost the right to challenge their assessment by refusing the home inspection, stating, for example, that "the result of this refusal is that they [the Milewskis] would be unable to challenge the assessment." The dissent's position is not supported by the facts or the Town itself.

(continued) 14 No. 2015AP1523

affirmative decision to deny the tax assessor an interior

inspection of their home. Foreclosing an administrative or

judicial review of the revaluation, they say, is the "legal,

logical, and natural result" of that decision, for to do

otherwise would be "inconsistent with well-established law on

the property owner's burden of proof because the homeowner has

the affirmative burden of proving that the fair market value is

different than the assessor's determination being challenged."

Thus, "[w]ithout putting the interior of their home——which

comprises about 70% of its value——into evidence," the Town

concludes, "the homeowners logically, and equitably, cannot meet

their burden of proving the fair market value is different from

what the assessor determines."

¶25 This argument conflates two important, but distinct,

principles. The right to a hearing is not the same thing as the

burden of proof one must satisfy by the end of that hearing.

Nor do the concepts protect the same interests. The former

ensures access to a neutral magistrate to resolve disputes and is constitutionally guaranteed. The latter is a prudential

recognition that he who seeks to change the status quo must

So the most that can be said of the dissent's argument is that the Milewskis have been able to litigate whether they should be allowed to litigate the new tax assessment. That, of course, is not the same thing as actually challenging the tax assessment, as even the Town admits.

15 No. 2015AP1523

overcome its inertia, and is subject to adjustment based on

policy considerations.10

¶26 We agree with the Town that the Milewskis must be

prepared to offer evidence sufficient to overcome the assessor's

conclusion if they hope to change the Property's valuation. A

challenger must "in good faith present[] evidence to such board

[of review] in support of such objections and [make] full

disclosure before said board, under oath of all of that person's

property liable to assessment in such district and the value

thereof." Wis. Stat. § 70.47(7)(a). This obligation is

significant because the assessor's valuation is presumptively

correct. Wis. Stat. § 70.47(8)(i) ("The board shall presume

that the assessor's valuation is correct. That presumption may

be rebutted by a sufficient showing by the objector that the

valuation is incorrect."); Wis. Stat. § 70.49(2) ("The value of

all real and personal property entered into the assessment

10 As we noted in State v. Big John:

The question of which party has the burden of proof on this issue is determined by the application of the five-factor analysis outlined in McCormick, Handbook of the Law of Evidence, § 337 at 787-89 (2d ed. 1972), and adopted by this court in State v. McFarren, 62 Wis.2d 492, 499-503, 215 N.W.2d 459 (1974). The five factors to be considered are: (1) the natural tendency to place the burden on the party desiring change; (2) special policy considerations such as those disfavoring certain defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities.

State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988).

16 No. 2015AP1523

roll . . . in all actions and proceedings involving such values,

[is] presumptive evidence that all such properties have been

justly and equitably assessed in proper relationship to each

other."). We express no opinion on whether the Milewskis will

be able to carry their burden of proof upon the contest of the

Property's value, but that has nothing to do with whether they

have the right to hazard the attempt. The Milewskis may not be

denied due process with respect to the revaluation of their

Property.11

2. Freedom From Unreasonable Searches ¶27 We next determine whether a tax assessor's warrantless

inspection of the interior of a home would be an unreasonable

search. On this subject, the Fourth Amendment to the United

States Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

11 The dissent is concerned we are restoring the Milewskis' due-process rights without penalizing them for exercising their Fourth Amendment rights. Dissent, ¶183 ("According to the lead opinion, a property owner can, without any adverse consequences, refuse an assessor an actual view of the real property and apparently can still contest the amount of the assessment.") First, the suggestion that someone should be penalized for exercising his constitutionally-protected rights is more than a little chilling. And second, we have not said the Milewskis will not suffer adverse consequences from refusing the home inspection. As this paragraph recognizes, their choice may have created substantial impediments to successfully challenging the Town's reassessment. However, the consequences are not a penalty for exercising their rights, but are instead the potential result of applying required evidentiary standards to their claim.

17 No. 2015AP1523

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Its Wisconsin counterpart, found in

Article I, section 11 of the Wisconsin Constitution,12 is

substantively identical, and we normally interpret it

coextensively with the United States Supreme Court's

interpretation of the Fourth Amendment.13 See, e.g., State v.

Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752

N.W.2d 748).

¶28 The constitutionality of a tax assessor's inspection

of the interior of a home turns on three questions. First,

whether the inspection is a search at all within the meaning of

the Fourth Amendment. Second, whether the inspection (if it is

a search) fits within a recognized exception to the Fourth

Amendment's operation. And third, if no recognized exception

covers the inspection, whether it is nonetheless reasonable.

12 "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Wis. Const. art. I, § 11. 13 Our references to the Fourth Amendment throughout this opinion also encompass Article 1, sec. 11 of the Wisconsin Constitution unless otherwise noted.

18 No. 2015AP1523

a. Is an "Interior View" a "Search"? ¶29 Whether a tax assessor's "viewing" has constitutional

significance depends on what the term "search" meant at the time

of the Fourth Amendment's adoption. Kyllo v. United States, 533

U.S. 27, 34 (2001) (The court must "assur[e] preservation of

that degree of privacy against government that existed when the

Fourth Amendment was adopted."). To obtain a baseline

understanding of what manner of intrusion comprises a "search,"

the United States Supreme Court recently had reference to the

English case of Entick v. Carrington.14 See United States v.

Jones, 565 U.S. 400, 404-05 (2012). The Court had previously

described this case (Entick) as a "'monument of English

freedom'" that was "undoubtedly familiar to every American

statesman at the time the Constitution was adopted, and

considered to be the true and ultimate expression of

constitutional law . . . ." Brower v. Cty. of Inyo, 489

U.S. 593, 596 (1989) (internal marks omitted) (quoting Boyd v.

United States, 116 U.S. 616, 626 (1886) (overruled on other grounds).

¶30 In Entick, the Jones Court found a close connection

between "searches" and the law of trespass. Jones, 565 U.S. at

405. There, Lord Camden admonished that "'[o]ur law holds the

property of every man so sacred, that no man can set his foot

upon his neighbour's close without his leave; if he does he is a

14 95 Eng. Rep. 807 (C.P. 1765).

19 No. 2015AP1523

trespasser, though he does no damage at all; if he will tread

upon his neighbour's ground, he must justify it by law.'"

Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).15

With that principle in mind, the Jones Court had no difficulty

concluding a search occurred when government agents attached a

tracking device to an individual's automobile. Id. at 404-05.

When "[t]he Government physically occupie[s] private property

for the purpose of obtaining information[,]" the Court said,

there is "no doubt that such a physical intrusion would have

been considered a 'search' within the meaning of the Fourth

Amendment when it was adopted." Id. at 404; State v. Sobczak,

2013 WI 52, ¶12, 347 Wis. 2d 724, 833 N.W.2d 59 (same).16

¶31 When the government proposes to enter a home to obtain

information relevant to levying a tax, we have even more precise

historical guidance at hand. "In order to ascertain the nature

of the proceedings intended by the fourth amendment to the

constitution under the terms 'unreasonable searches and

seizures,' it is only necessary to recall the contemporary or

15 Trespass, of course, is not the only government intrusion that can cause a Fourth Amendment violation. United States v. Jones, 565 U.S. 400, 411 ("we do not make trespass the exclusive test" for identifying a Fourth Amendment violation). 16 "It has long been established that the Fourth Amendment places the greatest protection around the home, as it was drafted in part to codify 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" State v. Sobczak, 2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Payton v. New York, 445 U.S. 573, 601 (1980)).

20 No. 2015AP1523

then recent history of the controversies on the subject, both in

this country and in England." Boyd, 116 U.S. at 624-25. One of

those controversies, which still informs our view of the Fourth

Amendment, was the practice of granting revenue agents general

warrants to search homes for taxable items:

"Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.'" Payton v. New York, 445 U.S. 573, 583 n.21 (1980) (quoting

Stanford v. Texas, 379 U.S. 476, 481–82 (1965) (quoting Boyd,

116 U.S. at 616, 625)).

¶32 This history tells us that, at the time the Fourth

Amendment was adopted, a "search" occurred when a government

agent trespassed on private property in pursuit of revenue-

raising information. Our statutes preserve the home's sanctity

against revenue agents by making it clear that tax assessors

trespass if they enter a home without consent. See Wis. Stat.

§ 943.13(4m)(am)4. (no trespass exemption for tax assessors entering residences or buildings within curtilage); see also

21 No. 2015AP1523

Wis. Stat. § 70.05(4m) ("A property owner may deny entry to an

assessor if the owner has given prior notice to the assessor

that the assessor may not enter the property without the

property owner's permission."). So, as Entick observed, and

Jones confirmed, if a tax assessor "'will tread upon his

neighbour's ground, he must justify it by law.'" Jones, 565

U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).

¶33 This is not, however, how the Town views its proposed

inspection of the Milewskis' home. It sees the Fourth Amendment

primarily through a procedural lens in which the purpose for the

government agent's presence in the home is less significant than

the manner by which he came to be there. It says no search

takes place under these circumstances because the assessor sends

a letter that provides "advance notice to homeowners when

requesting to view their home for an assessment," which

"explains the purpose behind the assessment, the right to refuse

the request and the consequences of that refusal." "[T]he

advance notice[] gives the homeowner ample opportunity to question the legitimacy, nature, and scope of the assessment."

The interior view does not "involve a 'true search for

violations,'" and there are no "criminal consequences for

denying entry." Instead, refusal "result[s] only in possible

financial consequences that the homeowner is informed of before

choosing" whether to allow the tax assessor entry to her home.

These procedures, and their attendant limitations on a

government agent's discretion, inform the Town's conclusion that

22 No. 2015AP1523

no search occurs when an assessor enters a home in search of

something to tax.

¶34 The Town's argument, however, gets a little ahead of

itself. The question at this stage of the analysis is whether

the tax assessor would be performing a search within the meaning

of the Fourth Amendment by viewing the interior of the

Milewskis' home. Whether he gives advance notice of when the

viewing will occur, or provides assurance that refusing him an

audience will cause merely financial penalties, may or may not

have something to say about the reasonableness of a search, but

it says nothing about whether his "viewing" belongs in the

Fourth Amendment "search" category. The Jones Court cast that

query in strictly functional terms, declaring that a search

occurs when "[t]he Government physically occupie[s] private

property for the purpose of obtaining information." 565 U.S. at

404. The formalities surrounding the viewing do not define what

the viewing actually is.

¶35 The Town offered Wyman v. James as an example of how a government agent may enter a home without triggering a search

within the meaning of the Fourth Amendment. 400 U.S. 309

(1971). The eponymous Mrs. James applied for, and received,

financial benefits under the federal Aid to Families with

Dependent Children program ("AFDC"). Id. at 313-14. The State

of New York, in administering the AFDC program for state

residents, required periodic home visits by a caseworker to

ensure the beneficiaries were putting program funds to the intended uses. See id. at 313-16. Mrs. James filed a civil 23 No. 2015AP1523

rights action alleging the home visits were searches that

violated the Fourth Amendment. Id. at 314-15.

¶36 The Supreme Court did not agree. It acknowledged that

the visits had both "rehabilitative and investigative" aspects,

but brushed off the latter because it "is given too broad a

character and far more emphasis than it deserves if it is

equated with a search in the traditional criminal law context."

Id. at 317. Concentrating instead on the consensual nature of

home visits, and the fact that withholding consent merely

stopped the flow of AFDC benefits, the Court found no search

within the meaning of the Fourth Amendment:

We note, too, that the visitation in itself is not forced or compelled, and that the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search. Id. at 317-18. Underlining the importance of consent to its

analysis, the Court signaled that the home visits could become

searches should they lose their consensual nature:

If however, we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment's standard.

Id. at 318.

24 No. 2015AP1523

¶37 Wyman provides no assistance in determining whether

the tax assessor's proposed view of the interior of the

Milewskis' home is a Fourth Amendment search. It does not

actually define what manner of activity qualifies as a search

for Fourth Amendment purposes. Instead, it asks whether the

homeowner has excused the government agent from complying with

constitutional requirements at all. The Fourth Amendment, of

course, does not prohibit consensual searches. See, e.g.,

Florida v. Bostick, 501 U.S. 429, 439 (1991) ("The Fourth

Amendment proscribes unreasonable searches and seizures; it does

not proscribe voluntary cooperation"); see also, United States

v. Williams, 521 F.3d 902, 905 (8th Cir. 2008) ("Consensual

searches do not violate the Fourth Amendment . . . ."). The

Fourth Amendment is no barrier to consensual searches not

because the activity is not a search, but because consent

removes the search from Fourth Amendment scrutiny. So it is

only in the absence of consent that we need to determine whether

a certain activity has constitutional significance. Because Wyman relied on consent as the decisional principle, it did not

explicitly decide whether the caseworker's activity in Mrs.

James' home constituted a search.

¶38 The Town argues that if the Milewskis and Mrs. James'

situations are not sufficiently comparable, we should analogize

this case to an analogy employed by the Wyman Court:

It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a taxpayer's income tax return, asks that the taxpayer produce for the agent's review

25 No. 2015AP1523

some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. So here Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved. 400 U.S. at 324.

¶39 This analysis offers no guidance and, indeed,

illustrates the limited utility of recursive analogies. An

analogy is helpful when it illuminates a central proposition by

considering it in a different, but logically related, context.

Building one analogy on another risks shifting the focus from

the central proposition to something peripheral, as occurred

here. The Wyman Court employed the IRS analogy in determining

whether the caseworker's home visit was constitutionally

reasonable. That is, it was not using the analogy to determine

whether the home visit was a search——it was assuming, as part of

its premises, that the visit was a search within the Fourth

Amendment's comprehension. So when the Town asserts a "viewing"

is not a search because, like "the hypothetical plaintiff in the

[Wyman] Court's example, Milewski and MacDonald face no criminal

penalties for refusing entry into their home[;] [t]he only

consequence is a tax detriment of their own making," it builds

its foundation on the IRS analogy's premise that the visit was a search. Thus, the recursive analogies resulted in a petitio

26 No. 2015AP1523

principii error (positing an argument's conclusion in the

premises). Wyman's analogy, therefore, has nothing instructive

to say about whether an "interior viewing" is a search within

the meaning of the Fourth Amendment.

¶40 In determining whether a tax assessor conducts a

constitutionally-significant search when viewing the interior of

a home, we apply the elegantly simple Jones formulation: If a

government agent occupies private property for the purpose of

obtaining information, he is conducting a search within the

meaning of the Fourth Amendment. The Town's own argument

confirms this would be a search. It is the Town's central point

that a tax assessor must physically enter the Milewskis' home to

conduct an interior view. And by describing the viewing as "a

simple requirement that taxpayers disclose the information

relevant to the value of their home," the Town admitted the

purpose of the assessor's presence would be to obtain revenue-

related information. Thus, a tax assessor who enters a home to

conduct an "interior view" occupies private property for the purpose of obtaining information and is therefore conducting a

search within the meaning of the Fourth Amendment.

b. Exception to the Fourth Amendment

¶41 The Town asserts that a tax assessor's search of a

home fits within the "special needs" exception to the Fourth

Amendment's protection. It refers us to City of Indianapolis v.

Edmond for instruction. 531 U.S. 32 (2000). There we find that

the United States Supreme Court has recognized a mélange of

27 No. 2015AP1523

circumstances in which searches are constitutionally reasonable

even in the absence of individualized suspicion of wrongdoing:

[W]e have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student-athletes); Treasury Emps. v. Von Raab, 489 U.S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Ry. Labor Execs. Assn., 489 U.S. 602 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e.g., New York v. Burger, 482 U.S. 691, 702–704 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U.S. 499, 507–509, 511–512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523, 534–539 (1967) (administrative inspection to ensure compliance with city housing code). Edmond, 531 U.S. at 37. The Town asks us to add tax assessment

searches to this potpourri because revenue collection is a

"special need," and the search is "not aimed at all at criminal—

—or even civil code——enforcement."

¶42 Whatever the merits of those exceptions, the Town has

not directed our attention to any case suggesting that assessing

or collecting taxes is a need so special that it excuses

compliance with the Fourth Amendment. Nor have we found any.

To the contrary, G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), teaches that the Fourth Amendment admits of no

28 No. 2015AP1523

"tax revenue" special exception. In that case, the Court

considered whether United States revenue agents could enter a

corporation's business offices without a warrant to seize

various books and records useful to their tax collection

efforts. See id. at 352-53. The United States made an argument

similar to what the Town offers us: "The respondents argue that

there is a broad exception to the Fourth Amendment that allows

warrantless intrusions into privacy in the furtherance of

enforcement of the tax laws." Id. at 354. It also maintained

that "the history of the common law in England and the laws in

several States prior to the adoption of the Bill of Rights

support the view that the Fourth Amendment was not intended to

cover intrusions into privacy in the enforcement of the tax

laws." Id. at 355.

¶43 After noting the government's unquestionable authority

to "lay and collect Taxes," the Court nonetheless recognized

that "one of the primary evils intended to be eliminated by the

Fourth Amendment was the massive intrusion on privacy undertaken in the collection of taxes pursuant to general warrants and

writs of assistance." Id. The Court found no evidence

supporting the United States' assertion that the Fourth

Amendment was historically understood as not reaching matters of

revenue. Id. ("We do not find in the cited materials anything

approaching the clear evidence that would be required to create

so great an exception to the Fourth Amendment's protections

against warrantless intrusions into privacy."). So the Court affirmed the Fourth Amendment's application to searches in aid 29 No. 2015AP1523

of tax revenues: "The intrusion into petitioner's office is

therefore governed by the normal Fourth Amendment rule that

'except in certain carefully defined classes of cases, a search

of private property without proper consent is "unreasonable"

unless it has been authorized by a valid search warrant.'" G.M.

Leasing Corp., 429 U.S. at 358 (quoting Camara, 387 U.S. at 528–

29). The Supreme Court's reasoning neatly answers the Town's

argument, and so we decline the invitation to declare that

administering the property tax statutes is a "special need" that

exempts tax assessment searches from the Fourth Amendment's

proscriptions.17

c. Is an "Interior View" a Reasonable Search?

¶44 Because the Fourth Amendment forbids only

"unreasonable" searches, we must determine whether——

notwithstanding the inapplicability of any recognized exception

to the Fourth Amendment——it is nonetheless reasonable to require

homeowners to submit to a tax assessor's periodic inspection of

the interior of their homes. The basic framework of our inquiry is as follows:

Under our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable is

17 The dissent justifies nonconsensual, warrantless home inspections as an aid in administration of our property tax laws. But the United States Supreme Court has already rejected that rationale. See G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). The dissent does not explain how this justification can co-exist with G.M. Leasing Corp.

30 No. 2015AP1523

determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Samson v. California, 547 U.S. 843, 848 (2006) (internal marks

and citations omitted). Because we are addressing the propriety

of a potential warrantless home search, we presume it would be

unreasonable and therefore unconstitutional. "It is a 'basic

principle of Fourth Amendment law' that searches and seizures

inside a home without a warrant are presumptively unreasonable."

Payton, 445 U.S. at 586; see also Camara, 387 U.S. at 528-29

("[O]ne governing principle, justified by history and by current

experience, has consistently been followed: except in certain

carefully defined classes of cases, a search of private property

without proper consent is 'unreasonable' unless it has been

authorized by a valid search warrant.") (citing Stoner v.

California, 376 U.S. 483 (1964); United States v. Jeffers, 342

U.S. 48 (1951) overruled on other grounds by Rakas v. Illinois,

439 U.S. 128 (1978); McDonald v. United States, 335 U.S. 451

(1948); Agnello v. United States, 269 U.S. 20 (1925)). It is

the Town's burden to demonstrate a nonconsensual, warrantless

search of the Milewskis' home is reasonable even though it does

not fit within a recognized exception to the Fourth Amendment.

¶45 The Town does not say there is anything peculiar about

the Milewskis' home that requires an interior inspection. In

fact, its thesis is quite the contrary——it says that every home

in the Town of Dover must be open to a tax assessor's inspection without any particularized demonstration of need. Therefore, we

31 No. 2015AP1523

understand the Town to be asking us to adopt a bright-line rule

that warrantless home searches, conducted by tax assessors in

conformance with the requirements of Wis. Stat. ch. 70, are

reasonable as a matter of law.

¶46 The Town says such searches are reasonable for three

reasons. First, they are useful in ensuring compliance with our

constitution's "Uniformity Clause." Second, the intrusion is

relatively minor. And third, a warrant would be a mere

formality, which demonstrates such searches are always

reasonable. i. The Uniformity Clause ¶47 The process by which Wisconsin municipalities raise

revenues makes a proper valuation of real property not just

important, but essential to fulfillment of the constitutional

command that "[t]he rule of taxation shall be uniform . . . ."

See Wis. Const. art. VIII, § 1. The process begins with the

municipality calculating how much revenue it needs from property

taxes. See Jack Stark, The Uniformity Clause of the Wisconsin Constitution, 76 Marq. L. Rev. 577 (1993). It then determines

the total value of taxable property in the jurisdiction. Id. at

577-78. Finally, it sets the mill rate18 at a level that will 18 Investopedia defines mill rate as follows: "The mill rate, also referred to as the millage rate, is a figure representing the amount per $1,000 of the assessed value of property, which is used to calculate the amount of property tax. The term 'millage' is derived from a Latin word meaning 'thousandth,' with 1 mill being equal to 1/1,000th of a currency unit." See Mill Rate, Investopedia, http://www.investopedia.com/terms/m/millrate.asp (last visited June 28, 2017).

32 No. 2015AP1523

generate the required revenue. Id. at 578. A property owner

calculates his tax liability by multiplying the mill rate by the

assessed value of his property. Id. Raising or lowering the

assessed value of a particular property, therefore, does not

change the amount of revenue the municipality raises. It simply

changes the allocation of the tax burden amongst the

municipality's property owners. The purpose of the Uniformity

Clause is to ensure the tax burden is allocated proportionally

to the value of each person's property. Gottlieb v. City of

Milwaukee, 33 Wis. 2d 408, 426, 147 N.W.2d 633 (1967) (The

purpose of the uniformity clause is "to protect the citizen

against unequal, and consequently unjust taxation." (quoting

Weeks v. City of Milwaukee, 10 Wis. 186, 201 (1860)).

¶48 Satisfying the Uniformity Clause requires not just a

uniform tax rate, but a uniform method of determining the value

of the property to which that rate will apply.

The act of laying a tax on property consists of several distinct steps, such as the assessment or fixing of its value, the establishing of the rate, etc.; and in order to have the rule or course of proceeding uniform, each step taken must be uniform. The valuation must be uniform, the rate must be uniform. Thus uniformity in such a proceeding becomes equality; and there can be no uniform rule which is not at the same time an equal rule, operating alike upon all the taxable property throughout the territorial limits of the state, municipality or local subdivision of the government, within and for which the tax is to be raised. Knowlton v. Bd. of Supervisors of Rock Cty., 9 Wis. 410, 420-21

(1859). Our statutes prescribe that uniform methodology: "Real property shall be valued by the assessor in the manner specified

33 No. 2015AP1523

in the Wisconsin property assessment manual provided under

s. 73.03(2a) from actual view or from the best information that

the assessor can practicably obtain, at the full value which

could ordinarily be obtained therefor at private sale." Wis.

Stat. § 70.32(1).

¶49 The Town asserts its home searches are necessary to

carry out the Uniformity Clause mandate. It notes that the

Wisconsin Property Assessment Manual19 says "the assessor must

make a thorough, detailed, and objective viewing of each

property, noting relevant characteristics as they relate to

physical condition, effective age, and functional utility."

Wis. Dep't of Revenue, Wisconsin Property Assessment Manual, 12-

20 (2017) (hereinafter "WPAM"). With respect to real property,

Gardiner says the Manual insists on an interior view of all

buildings: "In the case of real property, actual view requires

19 The Wisconsin Property Assessment Manual is published by the Wisconsin Department of Revenue as required by statute. The manual must accomplish the following:

The manual shall discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level. The manual shall be amended by the department from time to time to reflect advances in the science of assessment, court decisions concerning assessment practices, costs, and statistical and other information considered valuable to local assessors by the department.

Wis. Stat. § 73.03(2a).

34 No. 2015AP1523

a detailed viewing of the interior and exterior of all buildings

and improvements and the recording of complete cost, age, use,

and accounting treatments." Id. at 10-55. Gardiner also refers

to a number of appraisal guidelines emphasizing the importance

of interior inspections.

¶50 The Town and Gardiner are likely right that an

interior view of the Milewskis' home would be the most direct

method of obtaining the information necessary to perform a

revaluation. But this is only one of the statutorily-prescribed

methods of developing a valuation: "Real property shall be

valued . . . from actual view or from the best information that

the assessor can practicably obtain . . . ." Wis. Stat.

§ 70.32(1) (emphasis added). The statute gives the assessor two

potential sources of information with which to develop a

valuation. It lists those sources in the disjunctive, and

suggests no preference for one over the other.20 The Manual

acknowledges and reflects these options. WPAM at 10-55 ("The

statutes require that real . . . property be valued from actual view or the best information obtainable." (Emphasis added.)).

20 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).

35 No. 2015AP1523

So the plain meaning of the statute is that an assessor may

develop a valuation out of either source of information.21

¶51 The Town's actions, as well as other statutes, tell us

that the Uniformity Clause does not require an interior

inspection of the Milewskis' home. A homeowner has a statutory

right to deny a tax assessor entry, and an assessor who enters

anyway is a trespasser. See Wis. Stat. § 70.05(4m), Wis. Stat.

§ 943.13(4m)(am)4. Yet, securing one's property against the tax

assessor does not grind the valuation mechanism to a halt, as

the Town itself demonstrated. The Town proved itself capable of

valuing the Milewskis' home notwithstanding its inability to

perform an interior inspection. It may be that the valuation is

incorrect, as the Milewskis claim, but the Town presumably

sought the "best information that the assessor [could]

practicably obtain", as allowed by Wis. Stat. § 70.32(1), and

developed the valuation accordingly. If proceeding under this

alternative was not consistent with the Uniformity Clause, then

the Town indicts itself for violating the constitution by assigning a value to the Milewskis' home without an interior

21 The dissent says these really are not disjunctive options, and spends most of its analytical space trying to empty all meaning out of the second option into the first. But if the second option really means nothing more than the first, then the legislature acted frivolously when it added that option to the statute. See I Sandborn & Berryman Ann. Stats. (1889) § 1052. We try not to treat legislative enactments as surplusage. State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, ¶46 ("Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.").

36 No. 2015AP1523

inspection. And if the Town based its valuation on something

other than an "actual view" or the "best information"

practicably available, it has not said what it was or where it

obtained the authority to do so. Thus, the Town cannot argue,

without contradicting itself, that the Uniformity Clause

requires an interior inspection while simultaneously taxing the

Milewskis based on a valuation it developed without such an

inspection.

¶52 Finally, if the Uniformity Clause does not allow

valuations based on the "best information" option (the option

the Town appears to have exercised), then the constitutionality

of Wis. Stat. § 70.32(1) becomes suspect. But no one has made

such an argument, and because we presume our statutes are

constitutional, we will not indulge any such speculation. See,

e.g., In re Gwenevere T., 333 Wis. 2d 273, ¶46 ("Statutes are

generally presumed constitutional" and we will not find

otherwise unless "there is proof beyond a reasonable doubt that

the statute is unconstitutional."). Thus, we conclude that although an interior inspection may be useful, convenient, and

expedient in developing a valuation, the Uniformity Clause does

not require it.

ii. Minor Intrusion ¶53 The home does not stand on the same footing as other

spaces protected by the Fourth Amendment: "[W]hen it comes to

the Fourth Amendment, the home is first among equals." Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013). We do

37 No. 2015AP1523

not equivocate on this principle. "There can be no doubt that

'the Fourth Amendment has drawn a firm line at the entrance to

the house'" and that "it is our duty to zealously guard that

line." Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445

U.S. at 590).

¶54 So when the Town says a tax assessor's uninvited visit

is a "relatively minor" intrusion in one's home, we look closely

at what he proposes to do there. Gardiner said it would conduct

a "detailed viewing of the interior . . . of all buildings and

improvements and the recording of complete cost, age, use, and

accounting treatments." It says "[i]t is essential that the

assessor perform a thorough, detailed, and objective viewing of

each property" that is "field verified and accurate." Part of

what Gardiner would be seeking is evidence of the home's

"effective age," which requires it to carefully consider "abuse,

neglect, general maintenance, and all other influences on the

physical condition of the improvements." This search requires

the assessor to "inspect the interior of a minimum of 90%" of the home. In the process of the search, the assessor

scrutinizes such personal spaces as bedrooms, kitchens,

basements, and bathrooms. If this was a medical examination,

"minor intrusion" is not the description that would come to

mind.

¶55 The Town and Gardiner also say such searches are

relatively minor intrusions because they are preceded by notice,

and the homeowner has an opportunity to schedule the search. It says this procedure even "gives homeowners time to tuck away any 38 No. 2015AP1523

personal property they do not want the assessor to see." While

this procedural politeness is certainly welcome, it does nothing

to detract from the offense given by the search itself. As Boyd

recognized, the Fourth Amendment's principles "apply to all

invasions on the part of the government and its employees of the

sanctity of a man's home and the privacies of life." 116 U.S.

at 630. The Fourth Amendment is less concerned with the

politeness with which the government agent enters a home than it

is with the fact he is there at all. "It is not the breaking of

his doors, and the rummaging of his drawers, that constitutes

the essence of the offense; but it is the invasion of his

indefeasible right of personal security, personal liberty, and

private property . . . ." Id.

¶56 The Town further asserts the intrusion is minor

because it "is clearly less than in searches where the

government is checking the homeowner's compliance with civil or

criminal rules and the homeowner faces the specter of being

found guilty of violations and having to pay fines or criminal consequences." That may be true, but it misapprehends the

significance of this constitutionally-protected right. The

purpose of the Fourth Amendment is not to provide an opportunity

to secret away the fruits and instrumentalities of crime

(although it can sometimes have that incidental effect). The

point is to protect a person's right to be secure in one's home,

to lie in repose, or partake of what activities one wishes, free

of the government's watchful eye. The Fourth Amendment's promise is that a person may stand in his door and tell the 39 No. 2015AP1523

government agent "you shall not pass": "[P]hysical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is directed . . . ." United States v. U.S. Dist.

Court for E. Dist. of Mich., So. Div., 407 U.S. 297, 313 (1972).

¶57 The intrusiveness of a search lies on a continuum; a

pat-down incident to a Terry stop22 might lie near one end, while

towards the other end lies a search of one's home so

microscopically punctilious that it can pry even into the

owner's most private of thoughts.23 Somewhere along that

continuum the government hits the zealously guarded "firm line

22 Terry v. Ohio, 392 U.S. 1 (1968). 23 See State ex rel. Two Unnamed Pet'rs v. Peterson, 2015 WI 85, ¶18, 363 Wis. 2d 1, 866 N.W.2d 165 (the sought-after information included emails on computers seized during the search).

40 No. 2015AP1523

at the entrance of the house." Beyond that line there are no

minor intrusions.24

iii. Warrant ¶58 The Town asserts we may deduce the reasonableness of a

tax assessor's search by considering what an application for an

administrative search warrant might say. Because the assessor

has the duty to inspect the interior of everyone's home, the

Town argues, every application for an administrative warrant

would be the same, and would simply repeat the contents of the

notice already sent to the homeowner. With no requirement to

find a particularized need for the search, the argument goes,

the warrant application process would be a kabuki play ending

with the magistrate's predestined approval. If every

application necessarily results in issuance of a warrant, then

such searches are categorically reasonable.

24 One of the concurrences says this statement is too broad. Justice Ziegler's concurrence, ¶103. This should be an entirely unremarkable statement, and it is troubling that, apparently, it is not. If we cannot rouse ourselves enough to say this, then maybe Justice Ann Walsh Bradley is right when she said, just this term, that our jurisprudence "continues the erosion of the Fourth Amendment." State v. Floyd, 2017 WI ___, ¶48, ___ Wis. 2d___, ___ N.W.2d ___ (Ann Walsh Bradley, J., dissenting). And if that is the case, then we should stop making grand- sounding statements like "There can be no doubt that 'the Fourth Amendment has drawn a firm line at the entrance to the house'" and that "it is our duty to zealously guard that line." Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445 U.S. at 590). We should say what we mean, and if what we mean is that finding an uninvited government agent trespassing in one's home can be a "minor" intrusion, then it would be far more accurate to say that we lackadaisically observe a permeable line somewhere in or around the house.

41 No. 2015AP1523

¶59 We find a parallel to the Town's argument in Camara.

There, the Court considered whether a municipal health inspector

must obtain a warrant to annually conduct routine interior

inspections for evidence of building code violations. It was

asserted that the "decision to inspect an entire municipal area

is based upon legislative or administrative assessment of broad

factors such as the area's age and condition." Id. 387 U.S. at

532. Thus, "[u]nless the magistrate is to review such policy

matters, he must issue a 'rubber stamp' warrant which provides

no protection at all to the property owner." Id.

¶60 The Camara Court disagreed. It noted that in a

warrantless inspection regime "the occupant has no way of

knowing whether enforcement of the municipal code involved

requires inspection of his premises, no way of knowing the

lawful limits of the inspector's power to search, and no way of

knowing whether the inspector himself is acting under proper

authorization." Id. This leaves the building's occupant at the

mercy of "the discretion of the official in the field." Id. The warrant requirement exists for the specific purpose of

limiting such discretion: "This is precisely the discretion to

invade private property which we have consistently circumscribed

by a requirement that a disinterested party warrant the need to

search." Id. at 532-33. It concluded that a statutorily-

prescribed search regime was no substitute for a neutral

magistrate's review before intruding in someone's home. "We

simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory 42 No. 2015AP1523

safeguards are no substitute for individualized review,

particularly when those safeguards may only be invoked at the

risk of a criminal penalty." Id. at 533.

¶61 A warrant requirement here would be even more

justified than in Camara. There, the health inspector had an

indisputable statutory obligation to conduct interior searches.

The same is not true here. As we discussed above, the tax

assessor may base his valuation on either an actual view of the

home or, instead, the "best information" practicably available

to him. If he believes the "best information" available still

leaves him with insufficient data on which to build a

constitutionally-sound valuation for a specific home, he may

explain why that is so in his application for an administrative

warrant. As in Camara, the warrant will also perform the

salutary function of advising the homeowner of the lawful basis

for the inspection of his home, describing the search's proper

limits, and identifying the assessor as one with authority to

search. A warrant requirement in these circumstances would be no meaningless paper-shuffle.25

¶62 A tax assessor's inspection of a home's interior is a

search within the meaning of the Fourth Amendment, and so it is

25 Notwithstanding the striking similarities between the legislative schemes at issue both here and in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967), the dissent does not explain why San Francisco needed a warrant, but the Town of Dover does not.

43 No. 2015AP1523

presumptively unreasonable——and therefore unconstitutional——in

the absence of a warrant. The Town has offered nothing that

overcomes that presumption, and so we find that a tax assessor's

warrantless search of a home would be unconstitutional without

consent.

B. The Dilemma

¶63 So the Milewskis really did, and do, face a dilemma.

They have a right to challenge the revaluation of their

Property, as well as a right to prevent the tax assessor from

inspecting the interior of their home without consent. The

question now is whether the Town may require them to surrender

one as the price for exercising the other. We all learned how

to address this type of situation when we were children: Two

wrongs don't make a right. It would have been a constitutional

wrong to perform a warrantless search of the Milewskis' home in

search of taxable value, and it was in fact a constitutional

wrong to deprive them of their due process rights. Forcing a

person to choose between constitutional injuries does not make the one he chooses any less injurious.

¶64 The purpose of giving a right constitutional stature

is to protect it from legislative or executive suspension. If,

instead of setting two rights at odds, a statute flatly banned

judicial review of a tax assessor's revaluation of real

property, a brief recitation of our due-process catechism would

summarily consign it to the realm of unconstitutional acts.

Likewise, a legislative act authorizing an unreasonable search of a person's home would experience a similarly swift demise. 44 No. 2015AP1523

Because we can so easily dispatch such obvious assaults, it

would be odd if what cannot be done directly could yet be

accomplished indirectly through the expedient of juxtaposing one

constitutional right against another.

It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. Frost v. R.R. Comm'n of Cal., 271 U.S. 583, 593 (1926).26

¶65 The attempt to negate one constitutional right by

pitting it against another is a gambit not unknown to the law.

One of the earlier cases to address this situation, Simmons v.

United States, 390 U.S. 377, 394 (1968), considered whether a

defendant must choose between his Fourth and Fifth Amendment

rights. There, the FBI had conducted a search that netted a

suitcase belonging to one of the defendants, Mr. Garrett, which

contained incriminating evidence. Id. at 380-81. Mr. Garret

faced the same type of dilemma as the Milewskis. Under the

rules then obtaining, a motion to suppress the evidence as

unconstitutionally procured would require Mr. Garrett to testify

26 A sophisticated statutory scheme that deprives the Milewskis of either their Fourth or Fourteenth Amendment rights is no more acceptable than a blunt exercise of legislative authority that accomplishes the same thing. See, e.g., Lane v. Wilson, 307 U.S. 268, 275 (1939). ("The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination . . . .").

45 No. 2015AP1523

that the suitcase belonged to him, but if he did so and the

motion failed, his suppression testimony could be used against

him at trial. Id. at 389-91. The Court observed that, in

contemplating his litigation strategy, "Garret was obliged

either to give up what he believed, with advice of counsel, to

be a valid Fourth Amendment claim or, in legal effect, to waive

his Fifth Amendment privilege against self-incrimination." Id.

at 394. He opted for the suppression motion, which failed, and

the government used his suppression testimony to obtain a

conviction. See id. at 389. The Simmons Court recognized the

"undeniable tension" this type of situation creates, and

concluded that it is "intolerable that one constitutional right

should have to be surrendered in order to assert another." Id.

at 394.

¶66 The Eleventh Circuit Court of Appeals considered a

similar undeniable tension, but there it was between the First

and Fourth Amendments. Bourgeois v. Peters, 387 F.3d 1303 (11th

Cir. 2004). Mr. Bourgeois wished to attend a political protest, but the city of Columbus, Georgia required all those entering

the protest site to submit to a metal detector search. Id. at

1306-07. The City argued that relinquishing one of the

constitutional rights was consensual because no one was under an

obligation to attend the protest. See id. at 1324. Those who

valued their speech and assembly rights more highly than their

right to be free of unreasonable searches, the City said, would

voluntarily submit to a search. See id. Those who valued their Fourth Amendment rights more highly would forego attendance at 46 No. 2015AP1523

the protest. See id. Either way, the potential attendees knew

the price of exercising their rights, and chose accordingly.

See id. There is more than an echo of this argument in the

Court of Appeals opinion, which reasoned that the Milewskis

"were well informed of the repercussions of refusing Gardiner's

reasonable request to view the interior of their home, and

Plaintiffs chose to abandon their right to challenge the tax

assessment before the BOR." Milewski v. Town of Dover, No.

2015AP1523, unpublished slip op., ¶21.

¶67 The Bourgeois court succinctly described the problem

with this type of reasoning: "[T]he very purpose of the

unconstitutional conditions doctrine is to prevent the

Government from subtly pressuring citizens, whether purposely or

inadvertently, into surrendering their rights." Bourgeois, 387

F.3d at 1324-25. It's troubling when the price of a

discretionary governmental benefit is loss of a constitutional

right; it's simply unacceptable when the State requires a person

to sideline one constitutional right before exercising another. As the Bourgeois court observed, "[t]his case presents an

especially malignant unconstitutional condition because citizens

are being required to surrender a constitutional right—freedom

from unreasonable searches and seizures—not merely to receive a

discretionary benefit but to exercise two other fundamental

rights—freedom of speech and assembly." Id. at 1324. Worse

yet, there is no discernible principle that would limit the

malignancy. "If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in 47 No. 2015AP1523

like manner, compel a surrender of all." Frost, 271 U.S. at

594. We agree with the Frost Court's observation that "[i]t is

inconceivable that guaranties embedded in the Constitution of

the United States may thus be manipulated out of existence."

Id.; see also Smith v. Allwright, 321 U.S. 649, 664 (1944)

("Constitutional rights would be of little value if they could

be thus indirectly denied.").

¶68 The Milewskis exercised their right to deny the tax

assessor's request to inspect the interior of their home. For

the exercise of that constitutionally-protected right, they lost

the ability to contest their increased tax burden.27 The

27 One of the concurrences favors resolving this case on statutory grounds——as a means of avoiding constitutional issues— —by interpreting "view" in Wis. Stat. § 70.47(7)(aa) to mean only "exterior view." Chief Justice Roggensack's concurrence, ¶92 ("[I]nterpreting 'view such property' under Wis. Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the property avoids the possibility that the statutory scheme would operate to infringe the due process rights of a taxpayer by denying the taxpayer the opportunity to be heard."). Because the Milewskis offered Gardiner an exterior view, the concurrence concludes, they satisfied the statute and should have been allowed to challenge the assessment. Id., ¶97. But this resolution doesn't avoid the constitutional issue, it just avoids talking about it.

(continued) 48 No. 2015AP1523

constitution may not be put at odds with itself, and we do not

countenance penalties on the exercise of constitutional rights.28

Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551

(1956) (preventing local government from conditioning right to

due process on disavowal of the Fifth Amendment protection

against self-incrimination); Shelton v. Tucker, 364 U.S. 479

(1960) (preventing local government from conditioning employment

on impairment of constitutionally-protected free association

rights); see also Harman v. Forssenius, 380 U.S. 528, 540 (1965)

("It has long been established that a State may not impose a

The limiting construction the concurrence would place on "view," it says, is necessary to "save the constitutionality of the statutory scheme." Id., ¶94. It must have been the interior inspection that put the statute at risk because that's what the concurrence would exclude from the scope of the term "view." And although it didn't say why the interior view created constitutional peril, it must have been that it would violate the Fourth Amendment. If that were not so, then no "saving" construction would be necessary. So the Chief Justice must have concluded, just as we did, that a nonconsensual, warrantless interior inspection would violate the Fourth Amendment. The only difference between her conclusion and ours is that we said it aloud, while she said it sotto voce. We should say such things aloud. 28 The dissent says revoking someone's due process rights is a reasonable "constitutional inducement" to obtain a person's consent to a search of one's home. See dissent, ¶170. Constitutionally valid consent, however, must be given freely and voluntarily. See State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 ("The State bears the burden of proving that consent was given freely and voluntarily . . . ."). Stated in the negative, effective consent cannot be "the product of duress or coercion, express or implied . . . ." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Threatening someone with the loss of a constitutional right sounds an awful lot like "duress or coercion."

49 No. 2015AP1523

penalty upon those who exercise a right guaranteed by the

Constitution." (citing Frost, 271 U.S. at 593)).29 The Milewskis

suffered an abridgement of their Fourteenth Amendment rights

solely because they exercised their Fourth Amendment rights,

which is a real and immediate constitutional injury.30

29 The Harman Court considered a Virginia statute that forced voters to choose between (a) an onerous yearly registration process and (b) payment of a poll tax. The Court observed that the latter option violated the 24th Amendment, while the former acted as a substantial encumbrance on "[t]he right to vote freely for the candidate of one's choice[, which] is of the essence of a democratic society . . . ." Harman v. Forssenius, 380 U.S. 528, 540 (1965) (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). "Restrictions on that right," it said, "strike at the heart of representative government." Harman, 380 U.S. at 540 (quoting Reynolds, 377 U.S. at 555). So Virginia voters were faced with a Milewski-like conundrum: Submit to an unconstitutional poll tax, or suffer an encumbrance on the right to vote that strikes at the heart of representative government. The Harman Court concluded Virginia could not put its citizens to that choice. 30 One of the concurrences is concerned by our decision to opine on the "unconstitutional conditions doctrine" because it was not briefed. Justice Ziegler's concurrence, ¶101. It is fair to say this subject comprised virtually the entirety of the Milewskis' briefing. As relevant here, the doctrine expresses the basic principle that the State may not put constitutional rights at odds with each other such that a person must surrender one as the price of exercising the other. See, e.g., Slowchower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551 (1956); Simmons v. United States, 390 U.S. 377 (1968); Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004).

That is precisely, and only, what the Milewskis argued. They said they have a due-process right to challenge their tax reassessment, they have the simultaneous right to prevent government agents from searching their home, and they said the statutes told them they had to choose between those rights. We have not addressed anything the parties have not briefed.

(continued) 50 No. 2015AP1523

¶69 The only remaining question is whether application of

Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) will invariably cause

this injury under all circumstances. If they will, we must

declare them unconstitutional on their face to the extent they

foreclose judicial review of a tax assessor's revaluation.31 If

they do not, of necessity, inflict this injury, then the

constitutional infirmity lies only in how they were applied to

the Milewskis. The Milewskis say their challenge is the latter,

while the Town says the Milewskis are really arguing that the

statutes are facially unconstitutional.

The concurrence also says existing cases demonstrate the unconstitutional conditions doctrine is applicable only when the State conditions access to a government-provided benefit upon surrender of a constitutional right. Justice Ziegler's concurrence, ¶101. While courts most frequently discuss the doctrine in that context, they also address it in the context of juxtaposed constitutional rights (as we described above). In any event, concluding from this that the doctrine protects access to government benefits but not constitutional rights is to make government benefits a higher order of rights than those protected by our Constitutions. Neither law nor logic supports such a proposition.

Finally, the concurrence agrees the Milewskis could not be constitutionally required to choose between their Fourth and Fourteenth Amendment rights. Justice Ziegler's concurrence, ¶100. But it does not explain how or why it would reach that conclusion without aid of the very principles it rejects. 31 Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786 N.W.2d 385 ("[A] facial constitutional challenge attacks the law itself as drafted by the legislature, claiming the law is void from its beginning to the end and that it cannot be constitutionally enforced under any circumstances . . . .").

51 No. 2015AP1523

¶70 We find only that Wis. Stat. §§ 70.47(7)(aa) &

74.37(4)(a) were unconstitutionally applied to the Milewskis.

The former provision states, in its entirety:

No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. Wis. Stat. § 70.47(7)(aa). The statute does not, by its express

terms, say where the assessor will be when he conducts his

"view" of the property. However, it does assume he will be

somewhere that requires the owner's consent. If it were

otherwise, there would be no need to ask permission——the

assessor could simply conduct the "view" without contacting the

owner at all. It is not immediately apparent to us that a Venn

diagram of "places where an assessor may not be without consent"

and "places the Fourth Amendment protects against unreasonable

searches" would depict completely overlapping circles. To the

extent they diverge, the statutory provision is not facially

unconstitutional. This question was not addressed directly, and

nothing in the parties' briefs indicates such a divergence is

not possible, so we reserve for another day the determination of

its facial soundness. We hold only that this statute may not be

read to require a "viewing" that would violate the Fourth

Amendment.

¶71 The parties have not identified any inherent

constitutional infirmity in Wis. Stat. § 74.37(4)(a). This provision simply requires a property owner to comply with the

52 No. 2015AP1523

board of review procedures before filing a claim for excessive

assessment in circuit court: "No claim or action for an

excessive assessment may be brought under this section unless

the procedures for objecting to assessments under [Wis. Stat.

§] 70.47 . . . have been complied with." § 74.37(4)(a). In

this case, however, those procedures included the Board of

Review's determination that the Milewskis must submit to an

unconstitutional search of their home before presenting their

challenge. Because § 74.37(4)(a) incorporated the

unconstitutional application of § 70.47(7)(aa), it too was

unconstitutionally applied to the Milewskis.

IV. CONCLUSION

¶72 Applying Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) in

a manner that required submission to a tax assessor's search as

a precondition to challenging the revaluation of their property

violated the Milewskis' due process rights as guaranteed by the

Fourteenth Amendment to the United States Constitution, and

Article I section 1 of the Wisconsin Constitution. Consequently, we reverse the court of appeals and remand to the

circuit court for further proceedings consistent with this

opinion.

By the Court.—The decision of the court of appeals is

reversed and the matter is remanded to the circuit court for

further proceedings consistent with this opinion.

53 No. 2015AP1523.pdr

¶73 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I

agree with the lead opinion that the Milewskis are entitled to a

hearing to contest their tax assessment, and therefore I concur

in the mandate. I write separately because I conclude that the

Milewskis are statutorily entitled to a hearing even though they

did not permit a tax assessor to enter the interior of their

home. Therefore, because I would not address the constitutional

issues discussed by the lead opinion, I do not join the lead

opinion, but respectfully concur.

¶74 The lead opinion ably sets forth relevant facts, and

therefore I relay only those facts that are helpful to

understanding my discussion that follows.

¶75 The Milewskis received a written notice that a tax

assessor, Gardiner, would visit their home to view their

property.1 When Gardiner arrived, Ms. MacDonald permitted

Gardiner to view the exterior of their home. She offered to let

Gardiner through a gate and into their yard so that he could view the entire exterior of their home. Gardiner declined this

invitation and left the property.

¶76 Gardiner valued the Milewskis' property significantly

higher than it previously had been valued. Mr. Milewski

appeared at the Town of Dover Board of Review (board of review)

to object to the valuation of their property. The board of

1 The notice requested an interior view of their home.

1 No. 2015AP1523.pdr

review denied Mr. Milewski the opportunity to appear because he

had not permitted the assessor to view the interior of his home.

¶77 The Milewskis paid their taxes for 2013 and sought

review of their tax assessment in circuit court under Wis. Stat.

§ 74.37. The Town of Dover Board of Review and Gardiner moved

for summary judgment. They contended that the Milewskis lost

their right to contest the valuation of their property before

the board of review, and, as a corollary, the right to challenge

their tax assessment as excessive in circuit court.

¶78 The Milewskis moved for partial summary judgment and

argued, in part, that they were entitled to a hearing to object

to their tax assessment because Wis. Stat. § 70.47(7)(aa) is

satisfied by a taxpayer who permits an exterior view of his

property, and the Milewskis permitted such a view.

¶79 The circuit court granted summary judgment in favor of

the Town of Dover and Gardiner, and the court of appeals

affirmed. We granted the Milewskis' petition for review. I

would reverse the court of appeals and remand to the circuit court for a hearing on the Milewskis' excessive tax assessment

claim.

II. DISCUSSION

A. Standard of Review

¶80 The present case requires the court to interpret and

apply the statutory provisions that govern the valuation of real

property and the ability of a taxpayer to contest a tax

assessment. "Interpretation and application of a statute present questions of law that we review independently, while

2 No. 2015AP1523.pdr

benefitting from the analyses of the circuit court and court of

appeals." Sorenson v. Batchelder, 2016 WI 34, ¶10, 368 Wis. 2d

140, 885 N.W.2d 362 (citing Pool v. City of Sheboygan, 2007 WI

38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415).

B. Statutory Interpretation

¶81 "[S]tatutory interpretation 'begins with the language

of the statute. If the meaning of the statute is plain, we

ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit

Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236

Wis. 2d 211, 612 N.W.2d 659). "Statutory language is given its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special definitional meaning." Id., ¶45 (citing Bruno v.

Milwaukee Cty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660

N.W.2d 656).

¶82 These principles guide our interpretation of the three

pertinent statutes in this case: Wis. Stat. § 70.32(1); Wis. Stat. § 70.47(7)(aa); and Wis. Stat. § 74.37. The circuit court

and the court of appeals concluded that these provisions prevent

the Milewskis from contesting the valuation of their home and

the validity of their tax assessment.

¶83 Wisconsin Stat. § 70.32(1) describes the way in which

an assessor is required to value real property. It provides,

"Real property shall be valued by the assessor in the manner

specified in the Wisconsin property assessment manual provided under s. 73.03(2a) from actual view or from the best information

3 No. 2015AP1523.pdr

that the assessor can practicably obtain, at the full value

which could ordinarily be obtained therefor at private sale."

Wis. Stat. § 70.32(1). Therefore, there are two permissible

ways in which an assessor may value real property: (1) through

an actual view of the property; or (2) based on the best

information available to the assessor. Of course, an assessor

may rely on the best information available because an actual

view of a property is not always feasible. See generally

Boorman v. Juneau Cty., 76 Wis. 550, 45 N.W. 675, 676 (1890)

("We cannot hold that the mere failure of the assessor to value

the lands from actual view invalidated the assessment.").

¶84 A taxpayer who is dissatisfied with the value accorded

his real property is allowed to contest the valuation before a

board of review. Wis. Stat. § 70.47. Section 70.47(7) outlines

the process a taxpayer must follow to receive a hearing before a

board of review. § 70.47(a) ("Objections to the amount or

valuation of property shall first be made in writing and filed

with the clerk of the board of review within the first 2 hours of the board's first scheduled meeting . . . .").

¶85 A hearing before a board of review allows a taxpayer

to object to the valuation of his property; however, a taxpayer

also has the option of claiming his tax assessment is excessive.

Specifically, a taxpayer may pay the taxes that were imposed and

sue for a refund in circuit court. Wis. Stat. § 74.37(1) ("In

this section, a 'claim for an excessive assessment' or an

'action for an excessive assessment' means a claim or action, respectively, by an aggrieved person to recover that amount of

4 No. 2015AP1523.pdr

general property tax imposed because the assessment of property

was excessive.").

¶86 Under Wis. Stat. § 70.47, a taxpayer is required to

satisfy certain procedural requirements before he may obtain a

hearing to object to the valuation of his property. And, a

taxpayer who is procedurally barred from challenging the

valuation of his property before a board of review is also

precluded from seeking review of his tax assessment in circuit

court. Wis. Stat. § 74.37(4)(a) ("No claim or action for an

excessive assessment may be brought under this section unless

the procedures for objecting to assessments under s. 70.47,

except under s. 70.47(13), have been complied with.").

¶87 Wisconsin Stat. § 70.47(7) explains the ways in which

an individual can lose the right to object to a tax assessment.

For example, a taxpayer who refuses the request of an assessor

to view his property is prevented from contesting the valuation

of his property before a board of review and is likewise barred

from challenging his tax assessment as excessive in circuit court. Wis. Stat. § 70.47(7)(aa). Therefore, if an assessor

requests to "view" the taxpayer's real property, and the owner

of the property refuses this request, the owner is prevented

from taking any measure to challenge his tax assessment.

Specifically, § 70.47(7)(aa) provides,

No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property.

5 No. 2015AP1523.pdr

Under this provision, an assessor may request the opportunity to

view a taxpayer's property, but the assessor is not obligated to

specify those parts of the property the assessor wishes to view.

Accordingly, a "view" may include only the exterior, only the

interior or both.

¶88 Although this provision requires an individual to

permit an assessor to "view" his property, nothing in Wis. Stat.

§ 70.47(7)(aa) requires that a taxpayer permit an assessor to

view the interior of his home. See State v. Pratt, 36

Wis. 2d 312, 317, 153 N.W.2d 18 (1967) ("In construing or

'interpreting' a statute the court is not at liberty to

disregard the plain, clear words of the statute."). Rather,

§ 70.47(7)(aa) provides that an assessor must be given the

opportunity to "view such property." And, the phrase "view such

property" is not defined so as to require an interior view of

the structures on the property in order for a view of the

property to have occurred.

¶89 "View" or "viewing" is defined as "[t]o look at, examine, or inspect" or alternatively as "[a]n examination using

the eyes; a look." View, The American Heritage Dictionary, 1931

(5th ed. 2011). An assessor may examine a taxpayer's property

without entering the interior of his home. Therefore, an

examination of a property for purposes of valuing said property

does not necessarily require an assessor to view the interior of

any structures located on the parcel of real property.

¶90 The legislature could have used the word "enter" instead of "view," which may have suggested that interior access

6 No. 2015AP1523.pdr

to any structures on the property is required. See Kalal, 271

Wis. 2d 633, ¶44 ("We assume that the legislature's intent is

expressed in the statutory language."). It did not. But the

legislature has used the word "enter" in other contexts

involving the assessment of property. Wis. Stat. § 70.05(4m).

"When the legislature chooses to use two different words, we

generally consider each separately and presume that different

words have different meanings." Augsburger v. Homestead Mut.

Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874

(internal quotations omitted).

¶91 Importantly, nowhere else in the statutory scheme does

it mandate an interior view of a taxpayer's property. And, this

interpretation of Wis. Stat. § 70.47(7)(aa) does not prevent an

assessor from correctly assessing the value of the home under

Wis. Stat. § 70.32 or the Wisconsin Property Assessment Manual.

If a taxpayer allows for an exterior view of the home, then that

is "the best information that the assessor can practicably

obtain." § 70.32. ¶92 Moreover, interpreting "view such property" under Wis.

Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the

property avoids the possibility that the statutory scheme would

operate to infringe the due process rights of a taxpayer by

denying the taxpayer the opportunity to be heard.

¶93 The lead opinion's due process analysis is predicated

on the presumption that Wis. Stat. § 70.47(7)(aa) precludes the

right to be heard for a taxpayer who denies an assessor a view of any part of his home. However, we generally avoid

7 No. 2015AP1523.pdr

interpreting a statute in a way that would cause constitutional

problems. See Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1,

884 N.W.2d 484 ("We presume that statutes are constitutional and

if any doubt exists about the statute's constitutionality, the

court must resolve that doubt in favor of upholding the

statute." (internal citations omitted)).

¶94 Even if the plain language of the statute could be

read to require interior access to a taxpayer's property,

interpreting the statute such that it is satisfied by an

exterior view preserves its constitutionality. See Milwaukee

Branch of NAACP v. Walker, 2014 WI 98, ¶63, 357 Wis. 2d 469, 851

N.W.2d 262. "If a saving construction . . . preserves the

constitutionality of the statute, we will employ it." Id. "We

do so in order to avoid a constitutional conflict." Id., ¶64.

"Stated otherwise, when we determine that there is a statutory

flaw that may have constitutional significance, we ascertain

whether the government rule or statute can be interpreted in a

manner that will avoid a constitutional conflict." Id. As discussed above, it is possible to interpret the statute such

that an exterior view of a taxpayer's property is sufficient.

This interpretation allows a taxpayer a hearing to contest his

tax assessment if he permits an exterior view of his property,

thereby rendering the statutory scheme constitutional.

Accordingly, this court should interpret Wis. Stat.

§ 70.47(7)(aa) such that an exterior view of the property is

sufficient in order to "save" the constitutionality of the statutory scheme.

8 No. 2015AP1523.pdr

¶95 Consequently, I would interpret Wis. Stat.

§ 70.47(7)(aa) consistent with a taxpayer's due process right to

be heard. The interpretation accords a taxpayer who permits an

exterior view of his property a hearing under § 70.47(7)(aa) and

also the right to maintain a refund action under Wis. Stat.

§ 74.37.

¶96 However, a taxpayer who provides only an external view

of his property is not entitled to produce evidence of the

interior condition of his home at a hearing before the board of

review or in a claim for excessive assessment before a circuit

court. During those proceedings, the taxpayer may cross-examine

the individual who valued his property to determine if the

assessor came to a reasonable conclusion as to its value.2

Through this process, a taxpayer will be able to determine if

the assessor relied on the best information available to assess

his property, as required under Wis. Stat. § 70.32(1).

Additionally, a taxpayer may introduce other evidence unrelated

to the interior condition of the property to show his tax assessment was unjust or unreasonable.

2 Assessors, or an authorized representative of the assessor, are required to attend such a hearing. See Wis. Stat. § 70.48 ("The assessor or the assessor's authorized representative shall attend without order or subpoena all hearings before the board of review and under oath submit to examination and fully disclose to the board such information as the assessor may have touching the assessment and any other matters pertinent to the inquiry being made.").

9 No. 2015AP1523.pdr

C. Milewskis' Tax Assessment

¶97 In the present case, the Milewskis satisfied the

conditions of Wis. Stat. § 70.47(7)(aa), and therefore they are

entitled to challenge their tax assessment as excessive under

Wis. Stat. § 74.37. When the assessor, Gardiner, arrived at

their home, Ms. MacDonald offered to provide the inspector with

an exterior view of their home. She offered to open the gate to

their yard and let him view the entirety of the exterior. As a

result, she offered to let Gardiner "view" the property, which

is all that § 70.47(7)(aa) requires in order for a taxpayer to

obtain a hearing before a board of review. It is of no

consequence that Gardiner declined the Milewskis' invitation to

examine the exterior of their home.

¶98 Therefore, the Milewskis satisfied the conditions

necessary to be able to challenge their taxes as excessive in

circuit court under Wis. Stat. § 74.37. I would remand to the

circuit court for a hearing on this claim. However, during the

hearing, the Milewskis are not entitled to present evidence as to the condition of the interior of their home. Instead, they

may examine Gardiner in order to determine the validity and

soundness of the methodology upon which he based the valuation

of their property. Additionally, they may introduce other

evidence of the value of their property as appropriate.

III. CONCLUSION

¶99 In light of the foregoing, I conclude that the

Milewskis are statutorily entitled to a hearing even though they did not permit a tax assessor to enter the interior of their

10 No. 2015AP1523.pdr

home. Therefore, because I would not address the constitutional

11 No. 2015AP1523.akz

¶100 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I

respectfully concur in the mandate. I agree with the result

reached by the lead opinion in this case, as well as the lead

opinion's basic rationale and much of the lead opinion's

analysis. That is, I agree that the Town could not, consistent

with the United States Constitution and the Wisconsin

Constitution, compel the Milewskis to choose between exercising

their constitutional right to challenge a governmental

deprivation of their property and exercising their

constitutional right to refuse governmental entry into their

home. This Scylla and Charybdis, however, has seemingly been

analyzed under the rubric of the "unconstitutional conditions

doctrine" by the lead opinion. I am concerned with this

characterization.

¶101 I concur only in the mandate principally because of

the lead opinion's unprecedented decision to rely on the

"unconstitutional conditions doctrine," a term absent from the

briefing in this case. The perils of addressing unbriefed

issues are illustrated by the lead opinion's discussion. A

review of existing case law demonstrates that the

unconstitutional conditions doctrine is more complex than the

lead opinion's analysis suggests, and that it has most

typically, if not always, according to the Supreme Court, arisen

in cases which involve government benefits. See, e.g., Koontz

v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct. 2586, 2594 (2013) ("We have said in a variety of contexts that

'the government may not deny a benefit to a person because he 1 No. 2015AP1523.akz

exercises a constitutional right.' . . . Those cases reflect an

overarching principle, known as the unconstitutional conditions

doctrine, that vindicates the Constitution's enumerated rights

by preventing the government from coercing people into giving

them up." (emphasis added)); id. at 2596 ("Virtually all of our

unconstitutional conditions cases involve a gratuitous

governmental benefit of some kind."); Planned Parenthood of

Ind., Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962,

986 (7th Cir. 2012) ("The first step in any unconstitutional-

conditions claim is to identify the nature and scope of the

constitutional right arguably imperiled by the denial of a

public benefit." (emphasis added)); Madison Teachers, Inc. v.

Walker, 2014 WI 99, ¶¶29-35, 358 Wis. 2d 1, 851 N.W.2d 337

(suggesting that the unconstitutional conditions doctrine

embodies the principle that "it is impermissible for the

government to condition the receipt of a tangible benefit on the

relinquishment of a constitutionally protected right" (emphasis

added)); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989) ("The doctrine of

unconstitutional conditions holds that government may not grant

a benefit on the condition that the beneficiary surrender a

constitutional right, even if the government may withhold that

benefit altogether." (emphasis added)).1 1 For example, the lead opinion pulls language from Frost & Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 583, 592-93 (1926). That case was an unconstitutional conditions case, but it involved a "gratuitous governmental benefit." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct. 2586, 2596 (2013).

2 No. 2015AP1523.akz

¶102 Perhaps this doctrine should be applied in this case

(which does not involve a governmental benefit), but I would

prefer to see briefing and argument on that question before

establishing a rule in Wisconsin. Experience teaches that broad

legal statements untethered to the specific facts of the case,

like those present in the lead opinion's section on the

unconstitutional conditions doctrine, can easily metastasize in

our legal system and become "virtual engine[s] of destruction

for countless legislative judgments which have heretofore been

thought wholly consistent with . . . the Constitution."

Weinberger v. Salfi, 422 U.S. 749, 772 (1975) (discussing the

irrebuttable presumption doctrine). Judicial restraint dictates

that we decide this case narrowly, especially given the numerous

constitutional considerations involved.2

¶103 Aside from this deficiency, other aspects of the lead

opinion suffer from the same proclivity for overbroadness. For

instance, the lead opinion is not content to reject the argument

that home intrusions of the type involved under the specific facts at issue are minor; it instead concludes that no

governmental entry into a home under any hypothetical set of

circumstances can ever be minor. See lead op., ¶57. The

statement sounds impressive, but I do not understand the need

for such sweeping remarks. While the lead opinion may be

2 I do not necessarily reject all of the principles provided in the lead opinion's discussion. I simply disagree with the lead opinion's use of the unconstitutional conditions doctrine to resolve this case.

3 No. 2015AP1523.akz

entirely correct, I am not willing to decide an infinite number

of potential future cases without briefing and argument. To

take another example, while the lead opinion could easily quote

well-established Fourth Amendment maxims for some of the

principles it cites in its opinion, it instead chooses to reword

them in ways that could be easily misunderstood. See, e.g.,

lead op., ¶37 ("[C]onsent removes the search from Fourth

Amendment scrutiny.").

¶104 In sum, while I would like to join the lead opinion, I

cannot do so for fear of its potential effects on existing case

law and the ways in which it could be cited in the future.

¶105 For the foregoing reasons, I respectfully concur in

the mandate.

¶106 I am authorized to state that Justice MICHAEL J.

GABLEMAN joins this opinion.

4 No. 2015AP1523.ssa

¶107 SHIRLEY S. ABRAHAMSON, J. (dissenting).1 I would

affirm the judgment of the circuit court and the decision of the

court of appeals in favor of the Town of Dover.2 The statutes

challenged are presumed constitutional. The challengers have

1 Five justices agree with the mandate set forth in Justice Daniel Kelly's opinion (which appears as the first opinion in the instant case). The mandate is that the decision of the court of appeals is reversed and the cause is remanded. Only Justice Rebecca G. Bradley joins Justice Kelly's opinion. Chief Justice Patience D. Roggensack joins Justice Kelly's mandate, writing separately in concurrence. Justice Annette K. Ziegler (joined by Justice Michael J. Gableman) joins Justice Kelly's mandate, writing separately in concurrence. Justice Ann Walsh Bradley joins this dissent.

Justice Kelly's opinion is referred to as a lead opinion because four justices do not agree with or join its reasoning.

As Justice Ann Walsh Bradley recently explained in State v. Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann Walsh Bradley, J., dissenting), although "the term 'lead' opinion . . . is undefined in our Internal Operating Procedures, its use here is consistent with past description. We have said 'that a lead opinion is one that states (and agrees with) the mandate of a majority of the justices, but represents the reasoning of less than a majority of the participating justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ., concurring in part and dissenting in part) (citing Hoffer Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533)). 2 The parties disagree whether the Milewskis made a facial or an as-applied challenge to the constitutionality of the statutes. The lead opinion agrees with the Milewskis that their challenge is an as-applied challenge. Lead op., ¶¶69-71. I am not persuaded. I caution, as the United States Supreme Court has cautioned, that "the distinction between facial and as- applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010).

1 No. 2015AP1523.ssa

not carried their heavy burden to prove the statutes

unconstitutional beyond a reasonable doubt.3

¶108 The legislature has declared that if a real property

owner wishes to contest the amount of an assessment at the board

of review or circuit court, the property owner must, on the

reasonable written request of the assessor, allow the assessor

an "actual view" of the real property. See Wis. Stat.

§§ 70.47(7)(aa), 70.32(1).

¶109 The statutory words "actual view" have been

interpreted as including both an interior and exterior view of

the real property.4 The instant case involves the Milewskis'

3 The Milewskis bear a heavy burden. See Tammy W.-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 299, 797 N.W.2d 854 ("In a facial challenge, the challenger must persuade us that the 'heavy burden' to overcome the presumption of constitutionality has been met, and that there is proof beyond a reasonable doubt that the statute is unconstitutional"); Clear Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App 15, ¶33, 374 Wis. 2d 348, 893 N.W.2d 24 (noting "the heavy burden challengers face on an as-applied equal protection claim and the strong presumption in favor of a taxing decision of government"). 4 The Wisconsin Property Assessment Manual interprets "actual view" of property to include an "interior view." See Wisconsin Property Assessment Manual at 4-3, 10-55, 21-18 to 21- 20 (2017).

All subsequent references to the Manual are to the 2017 version. For a discussion of the Manual, see ¶¶143-145, infra.

At least as early as the 1860s the legislature has required assessors to value real property upon actual view. Marsh v. Bd. of Supervisors, 42 Wis. 502, 514 (1877). The Marsh court concluded that the requirement of an actual view and the statutory enumerated factors the assessor must consider help ensure "an equal and faithful assessment of all property subject to taxation."

2 No. 2015AP1523.ssa

refusing to allow the assessor to view the interior of their

real property, a home. I therefore focus on this issue, as does

the lead opinion. Other taxpayers may refuse to give an

assessor a view of the exterior of the real property or both the

exterior and interior. Substantially the same or similar issues

may arise in these instances.5

¶110 The lead opinion asserts that the legislature has

conferred on the Milewskis an unconstitutional choice of Option

A or Option B:

¶111 If the Milewskis choose Option A, they consent to an

assessor's viewing the interior of their home (thereby forgoing

their Fourth Amendment right to bar the government from their

home) and can contest the amount of the assessment in a hearing

before the Board of Review and a court (thereby exercising their

Fourteenth Amendment due process right to a hearing to contest

the amount of the assessment).

¶112 If the Milewskis choose Option B, they refuse to allow

an assessor to view the interior of their home (thereby exercising their Fourth Amendment right to bar the government

5 Chief Justice Patience Roggensack's concurrence offers an unexpected and surprising interpretation of the phrases "actual view" and "view such property" in Wis. Stat. §§ 70.32(1) and 70.47(7)(aa), respectively. The concurrence contends that these phrases do not refer to an interior view of the real property. This interpretation (not proffered by the parties) does not resolve the issue of the constitutionality of the statutes at issue when the property owner does not allow an assessor a view of the exterior of the real property, which is curtilage. See Oliver v. United States, 466 U.S. 170 (1984); State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502.

3 No. 2015AP1523.ssa

from their home) and cannot contest the amount of the assessment

in a hearing before the Board of Review and a court (thereby

forgoing their Fourteenth Amendment due process right to a

hearing to contest the amount of the assessment, according to

the lead opinion).

¶113 I conclude that an assessor's entry into the interior

of the home is a search under the Fourth Amendment. I further

conclude, as did the circuit court and court of appeals, that

Wis. Stat. § 70.47(7)(aa) and § 74.37(4)(a), the challenged

statutes, do not violate the Milewskis' Fourth Amendment or

Fourteenth Amendment rights (or analogous state constitutional

rights).

¶114 Section 70.47(7)(aa) governs proceedings before the

board of review and bars a person who refuses to allow an

assessor to view property from appearing or testifying before

the board or contesting the amount of the assessment:

(aa) No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property. ¶115 Section 74.37(4)(a) governs proceedings before the

circuit court and bars a claim or action for an excessive

assessment unless the property owner complied with the procedure

for objecting to assessments prescribed in § 70.47(7)(aa):

(a) No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under 70.47(13), have been complied with. . . .

¶116 Wisconsin is not alone in tying a challenge to the

amount of a property assessment to a property owner's permitting

a taxing authority to view the real property.6

¶117 Although the lead opinion describes its task as

"straightforward," it engages in a lengthy, overly complex

discussion. It focuses on numerous intricacies, including the

special needs exception to the Fourth Amendment and the messy,

ill-understood "unconstitutional conditions" doctrine.7 It

misses the big picture as well as the components of the tax

assessment statutes.8

¶118 My analysis of the issues proceeds as follows:

¶119 Part I sets forth two realities essential to

understanding the instant case: The Milewskis did not surrender

their Fourth Amendment rights; the assessor never entered the

home. The Milewskis retain rights under the statutes to a due

process hearing in which to contest their assessment; they

exercised these rights.

6 See, e.g., Minn. Stat. §§ 273.20, 274.01(b) (2016); Mass. Gen. Laws, ch. 58A, § 8A (2016). 7 Justice Annette Ziegler's concurrence appropriately outlines some difficulties with the "unconstitutional conditions" doctrine, but much more can be said about the unworkability of the doctrine and the flaws in the lead opinion's discussion of this doctrine. 8 "[T]he tax appeal administrative procedures of chs. 70 and 74 of the Wisconsin statutes are a highly evolved and carefully interwoven set of statutes providing a comprehensive remedy for individuals seeking redress for excessive assessments." Hermann v. Town of Delavan, 215 Wis. 2d 370, 394, 572 N.W.2d 855 (1998).

5 No. 2015AP1523.ssa

¶120 In Part II, I examine Wis. Stat. § 70.32(1) and

determine that the legislative directions to assessors regarding

the methods of valuation express a preference for an "actual

view" of the real property, meaning the view of the interior and

exterior. The lead opinion rests on a fundamental

misinterpretation of § 70.32(1).

¶121 Part III examines the legislature's reasonable,

constitutional inducement to property owners to consent to an

assessor's actual view of the real property by imposing a

reasonable, constitutional restraint on the property owner's

ability to contest the amount of an assessment. The legislative

provisions advance significant, legitimate governmental

objectives.

¶122 In Part IV, I analogize the challenged tax statutes to

Wisconsin's Implied Consent Law by which the State has imposed a

choice on drivers. The effect of this constitutional choice is

to discourage a driver's exercise of a Fourth Amendment right to

be free from intrusive government searches of the person by a blood draw.

¶123 In Part V, I show that the challenged tax statutes are

but a specific application of the unremarkable principle that a

taxpayer must make full disclosure of material information to a

taxing authority or face civil tax consequences for failing to

divulge the information. This principle of "make a full

disclosure or lose a claim or defense" also exists in other

areas of the law.

6 No. 2015AP1523.ssa

¶124 Part VI concludes the analysis by probing the meaning

of the mandate of the lead opinion.

I

¶125 The reader should approach the instant case keeping

two realities firmly in mind:

¶126 One. the Town's assessor did not enter the interior of

the Milewskis' home. No search of the Milewskis' home occurred.9

And no search would have occurred without their express consent.

The Milewskis did not surrender any constitutional right to be

free from an unreasonable search.10 See lead op., ¶¶6-12.

9 The circuit court observed that no search occurred:

Circuit Court: [Milewski] here very nicely says: You can come——you can come in the yard, you can look around, but you can't go in. They don't go in, do they?

Milewski's Attorney: No, they do not.

Circuit Court: So there's no Fourth Amendment violation at all.

Milewski's Attorney: There's no search. 10 Wisconsin Stat. § 70.05(4m) limits the availability and scope of an assessor's entry to view a property:

A taxation district assessor may not enter upon a person's real property for purposes of conducting an assessment under this chapter more than once in each year, except that an assessor may enter upon a person's real property for purposes of conducting an assessment under this chapter more often if the property owner consents. A property owner may deny entry to an assessor if the owner has given prior notice to the assessor that the assessor may not enter the property without the property owner's permission.

(continued) 7 No. 2015AP1523.ssa

¶127 No assessor forced his or her way into the home,

enlisted the aid of law enforcement officers to enter the home,

or otherwise interfered with the Milewskis' exercise of their

right to deny an assessor entry into the home. No physical

occupation or entry without a warrant11 or without consent

occurred, was attempted, or was even contemplated.12

¶128 Two, the Milewskis have received full due process

hearings in three courts——in the circuit court, in the court of

appeals, and in this court. Furthermore, the Milewskis retained

and exercised rights under the statutes to a hearing in which

they challenged the assessment as excessive on specified

grounds.

¶129 The lead opinion misleadingly suggests that the

Milewskis have been subjected to a tax and "have been forbidden

any process by which to challenge it." Lead op., ¶24. Three

Any request to view the interior of the property must be reasonable, made in writing, and delivered by certified mail. Wis. Stat. § 70.47(7)(aa). 11 Wisconsin Stat. § 66.0119 provides for "special inspection warrants" for many purposes, including "property assessment."

In Camara v. Mun. Court, 387 U.S. 523 (1967), the Court required a municipal health inspector to obtain a warrant to conduct routine interior inspections for evidence of building code violations. 12 Compare G.M. Leasing Corp. v. United States, 429 U.S. 338, 358 (1977) (concluding that the government's nonconsensual search of a business office and seizure of furnishings, books, and records contained therein was unreasonable and in violation of the Fourth Amendment absent a warrant or exigent circumstances).

8 No. 2015AP1523.ssa

courts have addressed the Milewskis' objections to the

assessment of their home and their challenge to the statutes at

issue. The Milewskis went the "whole nine yards" and lost on

the merits in two courts.

¶130 Moreover, the lead opinion misleadingly suggests that

as a result of the challenged statutes, the Milewskis lose "the

ability to contest their increased tax burden." Lead op., ¶¶24

n.9, 68. But property owners who refuse to allow an assessor an

actual view of the real property may nevertheless avail

themselves of procedures to challenge the legitimacy, nature,

and scope of the assessment.

¶131 Indeed, the Milewskis availed themselves of their

statutory right to a hearing challenging the assessment as

excessive. The Milewskis brought claims against Gardiner

Appraisal Service, LLC, the Town's assessor. They had a due

process hearing in circuit court in which they sought damages

from the Town's assessor on a claim of excessive assessment and

retaliation or coercion.13 See Wis. Stat. § 70.503.14

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. 2015AP1523.ssa

¶132 The court of appeals affirmed the circuit court's

dismissal of these retaliatory assessment claims against

Gardiner Appraisal Service, holding that there was no evidence

that Gardiner Appraisal Service intentionally violated the law

by performing the assessment in a retaliatory manner.15 The

Milewskis did not seek review of this dismissal in this court.

¶133 Property owners also have the right to a due process

hearing if they claim that the request to view the interior of

the real property was unreasonable. See Wis. Stat.

§§ 70.05(4m), 70.47(7)(aa). The Milewskis do not assert that

be liable in damages to any person who may sustain loss or injury thereby, to the amount of such loss or injury; and any person sustaining such loss or injury shall be entitled to all the remedies given by law in actions for damages for tortious or wrongful acts. . . .

Wisconsin Stat. § 70.501 provides for an assessor's forfeiture to the state:

Fraudulent valuations by assessor. Any assessor, or person appointed or designated under s. 70.055 or 70.75, who intentionally fixes the value of any property assessed by that person at less or more than the true value thereof prescribed by law for the valuation of the same, or intentionally omits from assessment any property liable to taxation in the assessment district, or otherwise intentionally violates or fails to perform any duty imposed upon that person by law relating to the assessment of property for taxation, shall forfeit to the state not less than $50 nor more than $250. 15 See Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op., ¶¶22-25 (Wis. Ct. App. May 4, 2016).

10 No. 2015AP1523.ssa

the assessor's written request to view their real property

violated the statutory requirements.16

¶134 To be clear, the Milewskis were afforded due process

of law. The Milewskis challenged in the courts the tax

assessment system that led to the assessment of their real

property. The Milewskis also had statutory rights to the Board

of Review's determination of whether the assessment of their

property was excessive and retaliatory and whether the request

for an actual view of their property violated statutory

requirements.

¶135 Two realities: No search of the Milewskis' home

occurred. The Milewskis had a hearing under the statutes, and

they challenged the assessment as excessive in court

proceedings.

II

¶136 The task of prescribing a uniform method for valuing

property for taxation purposes lies with the legislature. Since

the 19th century, the legislature has directed assessors how to value real property. The present statute is Wis. Stat.

§ 70.32(1).

16 Any request to view the property must be reasonable, made in writing, and delivered by certified mail. Wis. Stat. § 70.47(7)(aa). The Milewskis do not assert that they were unable to permit a view at the suggested time. Indeed, had this been their reason for refusing the assessor a view of the interior of the home, the Milewskis would have been given a chance to reconsider their refusal, even after seeing the proposed assessment. See Wisconsin Property Assessment Manual at 21-16.

11 No. 2015AP1523.ssa

¶137 The lead opinion rests on a fundamental

misinterpretation of Wis. Stat. § 70.32(1).

¶138 The lead opinion concludes that an assessment can be

based either on an actual view or on the best information that

the assessor can practicably obtain, and that the legislature

has not expressed a preference for one method over the other.

The inevitable result of this reading is that the property owner

can dictate the valuation methodology by refusing to allow an

assessor an actual view of the real property.

¶139 The lead opinion at ¶51 reaches this interpretation by

relying solely on the text of the phrase "from actual view or

from the best information that the assessor can practicably

obtain" in the first sentence of Wis. Stat. § 70.32(1):

70.32 Real Estate, How Valued (1) Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under [Wis. Stat. §] 73.03(2a) from actual view or from the best information that the assessor can practicably obtain . . . . (Emphasis added.) ¶140 This narrow, either/or reading of the statute based on

the text of only one phrase in a lengthy statutory provision

contravenes the basic rule of statutory interpretation that a

statute be interpreted in context.17 Rather than reading this

phrase in isolation, it should be read in the context of the

entire section, in the context of the tax assessment statutes,

17 See Wis. Carry v. City of Madison, 2017 WI 19, ¶20, 373 Wis. 2d 543, 892 N.W.2d 233 ("We examine the statute's contextualized words, put them into operation, and observe the results to ensure we do not arrive at an unreasonable or absurd conclusion.").

12 No. 2015AP1523.ssa

in the context of prior judicial interpretation of the statute,

and to avoid unreasonable or absurd consequences.18 This court

has instructed that the appropriate valuation methodology is

determined by looking "at the governing statutes, reviewed in

conjunction with basic principles of real property assessment as

described by case law, treatises, and the [Wisconsin] Property

Assessment Manual."19

¶141 Section 70.32(1) of the Wisconsin Statutes provides in

full as follows:

Wis. Stat. § 70.32 (1) Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03(2a) from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value, the assessor shall consider recent arm's-length sales of the property to be assessed if according to professionally acceptable appraisal practices those sales conform to recent arm's-length sales of reasonably comparable property; recent arm's-length sales of reasonably comparable property; and all factors that, according to professionally acceptable appraisal practices, affect the value of the property to be assessed. (Emphasis added.) ¶142 A reading of the full text of Wis. Stat. § 70.32(1) demonstrates that the legislature has given assessors several

instructions about valuation of real property that inform the

18 See, e.g., Berkos v. Shipwreck Bay Condo. Ass'n, 2008 WI App 122, ¶8, 313 Wis. 2d 609, 758 N.W.2d 215 ("Also relevant to a statute's plain meaning is prior case law interpreting the statute.") 19 Walgreen Co. v. City of Madison, 2008 WI 80, ¶19, 311 Wis. 2d 158, 752 N.W.2d 687.

13 No. 2015AP1523.ssa

interpretation of the statute's phrase "actual view or from the

best information that the assessor can practicably obtain":

• The legislature has instructed assessors to value real

property according to the Wisconsin Property

Assessment Manual.

property according to "professionally acceptable

appraisal practices."

• The legislature has instructed assessors to use a

hierarchy of valuations to value real property.

• As judicially interpreted, the legislature has

expressed a preference for valuation on the basis of

an actual view of the real property, although the

legislature has recognized that valuation requires

attention to other enumerated statutory factors and

the judgment and expertise of the assessor.

¶143 The first statutory direction to assessors in Wis.

Stat. § 70.32(1) is that real property be valued in the manner specified in the Wisconsin Property Assessment Manual. The

Manual is published annually by the Department of Revenue. The

legislature envisions the Manual as setting forth accepted

assessment methods and reflecting advances in the science of

assessment, court decisions, and other information considered

valuable to local assessors. Wisconsin Stat. § 73.03(2a)

provides in relevant part as follows:

The manual shall discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level. The 14 No. 2015AP1523.ssa

manual shall be amended by the department from time to time to reflect advances in the science of assessment, court decisions concerning assessment practices, costs, and statistical and other information considered valuable to local assessors by the department. ¶144 Assessors must adhere to the Manual, but when an

assessment is based on a directive in the Manual that does not

properly interpret Wisconsin law, the assessment may be

erroneous as a matter of law.20

¶145 The Wisconsin Property Assessment Manual mandates that

"actual view requires a detailed viewing of the interior and

exterior of all buildings and improvements and the recording of

complete cost, age, use, and accounting treatments." See

Wisconsin Property Assessment Manual at 10-55.21 This interior

view requirement makes sense. The assessor hired by the Town of

Dover in the instant case asserts that the interior of a home

constitutes about 70% of its value.22

20 Metro. Holding Co. v. Bd. of Review, 173 Wis. 2d 626, 632, 495 N.W.2d 314 (1993). 21 That an actual view requires an assessor to view the interior of real property is an observation echoed throughout the Wisconsin Property Assessment Manual. For example, at 6-12, the Manual explains that "data collected on each property should be complete, accurate, and consistent," requiring, inter alia, that the assessor "[v]iew the interior of the building, recording physical data." The Manual explains further that "[p]hysical characteristics such as age, condition, design, layout, quality of construction materials, and workmanship all have an effect on the value of improvements." Wisconsin Property Assessment Manual at 9-20. These characteristics necessarily depend on an interior view. 22 Gardiner Appraisal Service is a party in the instant case and filed a brief.

15 No. 2015AP1523.ssa

¶146 The lead opinion maintains that there is no need for

an interior inspection of the Milewski home. Lead op. ¶¶51-52.

Wrong! There is!

¶147 An assessor for the Town of Dover was last in the

interior of the Milewskis' residence in 2004. According to its

affidavit, Gardiner Appraisal Services could not verify whether

any remodeling had been performed since then. Thus, when the

assessor attempted to set a valuation for the Milewskis' house

without an interior inspection, he "could not accurately

determine the effective physical, functional and economic

obsolescence of the structure, curable or non-curable. . . . A

single remodel project, like a kitchen or bath, could have

significantly increased the value of the home."23

¶148 A second reason a view of the interior of the

Milewskis' home was especially crucial is that the Town was

conducting a full revaluation of all real property in the Town's

jurisdiction. A full revaluation refers to an assessment of all

the real property in the Town. See Wis. Stat. §§ 70.045, 70.05(5). A full revaluation is required periodically "to meet

the requirements of fair and uniform assessment." Wisconsin

Property Assessment Manual at 4-1.

¶149 Accordingly, the assessor in the instant case,

Gardiner Appraisal Services, performed the appraisal of the

Milewskis' house while doing a full revaluation of all the real

property in the Town of Dover to establish new, equitable

23 Defendant-Respondent, Gardiner Appraisal Service, LLC's, Response Br. at 8.

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assessments for all real properties. The written contract

between the Town of Dover and Gardiner Appraisal Services

required, inter alia, that "[the] assessor[] will view the

exterior and interior of all structures unless denied access

after mailing a request to owner by certified mail."

¶150 Requiring assessors to undertake an actual view of the

real property in a revaluation is a valid and reasonable

application of Wis. Stat. § 70.32(1), the Manual, and

professional appraisal practices.

¶151 The second direction in Wis. Stat. § 70.32(1) to

assessors regarding valuation is that the assessors comply with

"professionally acceptable appraisal practices." Emphasizing

the importance of the phrase, the statute references

"professionally acceptable appraisal practices" three times. In

its last use of the phrase, Wis. Stat. § 70.32(1) explicitly

states that "[i]n determining the value . . . the assessor shall

consider . . . all factors that, according to professionally

acceptable appraisal practices, affect the value of the property to be assessed."

¶152 The Department of Revenue is directed to illustrate

accepted assessment methods in the Manual. Wis. Stat.

§ 70.03(2a).

¶153 Viewing the interior of a building is surely a

"professionally acceptable appraisal practice." Gardiner

Appraisal Service's brief and affidavit cite (and include

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excerpts from) the Appraisal Institute's24 text Appraisal of Real

Estate at 219-20 (14th ed. 2013), which Gardiner Appraisal

Services describes as "a widely accepted treatise on assessment

methods."25

¶154 The text states that "the importance of a site visit

should not be underestimated." An appraiser's primary task

during a site visit is to write a "thorough building

description" that "helps the appraiser identify the extent and

24 The Appraisal Institute describes itself as "the world's leading organization of professional real estate appraisers," and "has led the way in fostering and promoting the highest standards of [appraisal] practice through its designation programs, peer review process, education, research and publishing endeavors." See http://www.appraisalinstitute.org/about/. 25 This text has been cited in numerous Wisconsin cases in which an appraisal or appraisal technique has been at issue. See, e.g., Walgreen Co. v. City of Madison, 2008 WI 80, ¶3, 311 Wis. 2d 158, 164–65, 752 N.W.2d 687, 690 ("This holding is consistent with the nationally recognized principle that '[a] lease never increases the market value of real property rights to the fee simple estate.' Appraisal Institute, The Appraisal of Real Estate 473 (12th ed. 2001)."); ABKA Ltd. P'ship v. Bd. of Rev. of Vill. of Fontana-on-Geneva Lake, 231 Wis. 2d 328, 354, 603 N.W.2d 217 (1999) (Wilcox, J., dissenting) (citing The Appraisal Institute, The Appraisal of Real Estate 478 (11th ed. 1996)); Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 781, 580 N.W.2d 644 (1998) (citing The Appraisal Institute, The Appraisal of Outdoor Advertising Signs (1994)). See also Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶114 n.29, 294 Wis. 2d 441, 717 N.W.2d 803 (Abrahamson, C.J., dissenting) (citing Ron L. Nation & Donald P. Oehlrich, The Valuation of Billboard Structures, The Appraisal Journal, Oct. 1999, at 242 (publication of the Appraisal Institute).

Reference was also made to another Appraisal Institute publication titled Summary Appraisal Report: Residential (2013) for similar statements.

18 No. 2015AP1523.ssa

quality of building improvements, calculate their cost, and

identify physical deterioration and functional obsolescence."

The Appraisal of Real Estate at 220-21.

¶155 Further emphasizing the importance of an exterior and

interior view of real property as a professionally acceptable

appraisal practice, the text goes on to explain that if a site

visit was not made, the appraisal report must clearly and

conspicuously describe the "extraordinary assumption that the

site and building characteristics are as described even though

the appraiser has not confirmed that information through a site

visit." The Appraisal of Real Estate at 220.

¶156 This expressed, explicit distrust of an appraisal

conducted without an exterior and interior view strongly

supports the proposition that an on-site inspection is a

professionally accepted appraisal practice; valuations made

without on-site inspections should be the exception and not the

rule for professional appraisers.26

¶157 An actual view of the interior and exterior of a building is, without question, a professionally acceptable

appraisal technique.

¶158 The third legislative direction in Wis. Stat.

§ 70.31(1) to assessors regarding valuation of real property is

that they comply with the hierarchy of valuation methodologies.

26 Fannie Mae, to which the Gardiner Appraisal Services affidavit refers, also requires the inspection of the interior and exterior of a building for an appraisal. See Fannie Mae, "Appraisal and Property Report Policies and Forms Frequently Asked Questions (FAQs)" at 4.

19 No. 2015AP1523.ssa

Assessors are obligated to follow what is known as the Markarian

three-tier hierarchy to value real property.27 See State ex rel.

Markarian v. City of Cudahy, 45 Wis. 2d 683, 173 N.W.2d 627

(1970). The hierarchy set forth in § 70.32(1) and case law is

as follows.

¶159 First tier: An assessor must base the assessment of

the subject property on a recent arm's-length sale of the

property, if available.28 This is perhaps the only assessment

methodology that does not rely on data gleaned from an actual

view of the real property.

¶160 Of course, a recent arm's-length sale ordinarily

represents a consideration by the buyer of the interior and

exterior of the real property. Rational prospective homebuyers

would inspect the real property and not simply rely on a

seller's representations of the home, the record of permits

pulled for the home, or the assessed value of similar

properties.

27 "'An assessor has an obligation to follow the three tier assessment analysis.'" Regency West Apartments LLC v. City of Racine, 2016 WI 99, ¶26, 372 Wis. 2d 282, 888 N.W.2d 611 (quoting Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶47, 294 Wis. 2d 441, 717 N.W.2d 803). See also Wisconsin Property Assessment Manual at ch. 9. 28 See Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Evidence of an arms-length sale of the subject property is the best evidence of true cash value.") (citing State ex rel. Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)).

20 No. 2015AP1523.ssa

¶161 Second Tier: If the subject property was not recently

sold, an assessor must base the assessment of the subject

property on sales of reasonably comparable property.

¶162 The sales comparison approach is "based on the premise

that similar properties will sell for similar prices on the open

market." Wisconsin Property Assessment Manual at 9-24. The

Manual requires using the sale price of properties that are

"similar to the subject property in age, condition, use, type of

construction, location, design, physical features and economic

characteristics." Wisconsin Property Assessment Manual at 9-24.

An important consideration in determining whether properties are

comparable is the improvements.29

¶163 Third Tier: If no sales of reasonably comparable

properties are available, an assessor may assess the subject

property using other assessment methodologies, such as cost and

income.30 In assessing under this tier, an assessor may consider

29 Rosen v. City of Milwaukee, 72 Wis. 2d 653, 686, 242 N.W.2d 681 (1976) ("Important considerations in determining whether particular property is sufficiently similar to the property being assessed to warrant reliance on its sale price as evidence of market value include its location, including the distance from the assessed property, its business or residential advantages or disadvantages, its improvements, size and use."). 30 See, e.g., Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Only if there has been no arms-length sale and there are no reasonably comparable sales may an assessor use any of the third-tier assessment methodologies.") (citing State ex rel. Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)); Great Lakes Quick Lube, LP v. City of Milwaukee, 2011 WI App 7, ¶¶17-18, 331 Wis. 2d 137, 794 N.W.2d 510 (citing Allright Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶11, 317 Wis. 2d 228, 767 N.W.2d 567).

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"all the factors collectively which have a bearing on value of

the property in order to determine its fair-market value."

Markarian, 45 Wis. 2d at 686. Gardiner Appraisal Services

asserts that without accurate information from an interior view

of the real property, it "is not possible to do an accurate

cost, market, or income approach to valuation."

¶164 A final direction to assessors comes from case law

interpreting Wis. Stat. § 70.32(1) and its precursors. The

court has recognized that the legislature has expressed a

preference for assessments based on an actual view of the real

property and that the legislature has also concluded that

valuation requires attention to other enumerated statutory

factors and requires the judgment and expertise of the assessor.

¶165 In the 1860s, the precursor to Wis. Stat. § 70.32(1)

referred to an "actual view" and enumerated various factors to

be considered in valuation, including "all buildings" and

"improvements of every description thereon."31 The disjunctive

31 See Wis. Stat. ch. 18, § 31 (1871) (cited in March v. Board of Supervisors, 42 Wis. 502 (1877)). This statute states that real property shall be valued by the assessor from actual view and does not mention an alternative "best information" but enumerates factors to be considered. It provides as follows:

§ 31. Real property shall be valued by the assessor from actual view at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desires to sell, would accept in full payment. In determining the value the assessors shall consider as to each piece, its advantage or disadvantage of location, quality of soil, quantity and quality of standing timber, water privileges, mines, minerals, quarries, or other valuable deposits known to be available therein, and all buildings, fixed machinery (continued) 22 No. 2015AP1523.ssa

phrase "or from the best information that the assessor can

practicably obtain" was later added to the statute.32

¶166 In considering the statute that included the

disjunctive phrase, the court accepted the idea that the

legislature expressed a preference for an actual view. The

court did not, however, invalidate the assessment when the

assessor failed to undertake an actual view. The court

acknowledged that "[i]t may be that a valuation from actual view

is always possible, but it is not always practicable." Boorman

and improvements of every description thereon, and their value. Real property held under lease from any religious, scientific, literary or benevolent association, but otherwise exempt, shall be assessed to the lessee. The assessor having fixed the value shall enter the same opposite the proper tract in the assessment roll. Property omitted from assessment the previous year by mistake, shall be entered twice, designating one entry as omitted for the year 18——. (Emphasis added.) 32 See Wis. Stat. ch. 48, § 1052 (1889), which provides as follows:

Real property shall be valued by the assessor either from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value the assessor shall consider, as to each piece, its advantage or disadvantage of location, quality of soil, quantity of standing timber, water privileges, mines, minerals, quarries, or other valuable deposits known to be available therein, and their value. Real property held under lease from any religious, scientific, literary or benevolent association, but otherwise exempt, shall be assessed to the lessee. The assessor, having fixed the value, shall enter the same opposite the proper tract or lot in the assessment roll. (Emphasis added.)

23 No. 2015AP1523.ssa

v. Juneau County, 76 Wis. 550, 553, 45 N.W. 675 (1890). The

Boorman court surmised that the assessor was acquainted with the

property from prior years.33

¶167 In sum, Wis. Stat. § 70.32(1) addresses and provides

direction to assessors regarding the methodology of valuation.

With its explicit reference to "actual view"; its references to

the Wisconsin Property Assessment Manual, "professionally

acceptable appraisal practices," and the hierarchy of assessment

methodologies; and its longstanding judicial interpretation,

Wis. Stat. § 70.32(1) suggests a preference for actual view in

an assessment——meaning interior and exterior view——and at the

same time empowers assessors to use their judgment and expertise

within the parameters set forth in the statute.

¶168 The lead opinion's narrow, either/or reading of Wis.

Stat. § 70.32(1) breaches a contextual reading and breaks with

precedent. The lead opinion's allowing the property owner in

effect to dictate the valuation methodology impairs the

functioning of the tax assessment system. ¶169 Because the legislature has established a preference

for an actual view in valuation of real property, the

legislature has also attempted to influence a property owner to

33 More recently, the court of appeals concluded that an actual view was not required to conduct a comparable sales analysis because the village assessor had been familiar with the subject properties for 14 years. State ex rel. Kesselman v. Bd. of Review, 133 Wis. 2d 122, 133, 394 N.W.2d 745 (Ct. App. 1986). In Kesselman, "[t]he circuit court found that the assessor failed to use the 'best information' available . . . because he used only a drive-by inspection . . . ." Kesselman, 133 Wis. 2d at 126-27.

24 No. 2015AP1523.ssa

permit an assessor an actual view of the real property. Indeed,

the legislature's decision to induce real property owners to

permit an assessor's actual view supports the proposition that

the legislature prefers that assessors have an actual view of

the real property.

III

¶170 To advance the significant, legitimate governmental

objective of uniformity and equity, the legislature has provided

a reasonable, constitutional inducement to property owners to

consent to an assessor's actual view of the real property: The

legislature imposes a reasonable, constitutional limit on the

ability of a property owner to contest the amount of an

assessment if the property owner prevents the assessor from

having an actual view of the real property.

¶171 I turn to the state constitutional requirement of

uniformity. The Uniformity Clause of the Wisconsin Constitution

dates back to the 1848 Constitution. It provides in relevant

part that "[t]he rule of taxation shall be uniform but the legislature may empower cities, villages or towns to collect and

return taxes on real estate located therein by optional

methods. . . . " Wis. Const. art. VIII, § 1. See lead op., ¶3.

¶172 The Uniformity Clause requires that taxes be fairly

allocated among taxpayers. Comparable properties in the

district are to be assessed uniformly.34 "The purpose of the 34 Clear Channel Outdoor, Inc. v. City of Milwaukee, 374 Wis. 2d 348, ¶37, 374 Wis. 2d 348, 893 N.W.2d 24 (quoting U.S. Oil Co., Inc. v. City of Milwaukee, 2011 WI App 4, ¶25, 331 Wis. 2d 407, 794 N.W.2d 904 (2010)).

25 No. 2015AP1523.ssa

Uniformity Clause is to ensure the tax burden is allocated

proportionally to the value of each person's property." Lead

op., ¶47.

¶173 The Uniformity Clause requires the same measuring

stick to be applied to comparable properties. "Satisfying the

Uniformity Clause requires . . . a uniform method of determining

the value of [] property . . . . " Lead op., ¶48.

¶174 The valuation of real property depends to a large

extent on the condition and quality of both the exterior and

interior of the real property. Thus, the requirement of an

actual view strongly relates to the state constitutional

requirement of uniformity.

¶175 Inaccuracy in the assessment of a parcel of real

property may result in inaccurate, and potentially unjust, tax

assessments of other real properties in that taxing

jurisdiction. See lead op., ¶¶47-48; Noah's Ark Family Park v.

Bd. of Review, 210 Wis. 2d 301, 310-12, 565 N.W.2d 230 (Ct. App.

1997) (Ct. App. op. adopted as op. of the Wisconsin Supreme Court, 216 Wis. 2d 387, 390, 394, 573 N.W.2d 852 (1998)).

¶176 The lead opinion asserts that the Town "contradict[s]

itself" by arguing that the Uniformity Clause requires an

"actual view" and then nevertheless proceeds to assess the

Milewski real property using other assessment methodologies.

Lead op., ¶51. The lead opinion concludes that "[i]f proceeding

under this alternative was not consistent with the Uniformity

Clause, then the Town indicts itself for violating the constitution . . . ." Lead op., ¶51.

26 No. 2015AP1523.ssa

¶177 The lead opinion stumbles. The Town's argument is not

contradictory: Once the Town proceeded to assess real property

using an "actual view," it applied the same methodology

throughout the Town complying with the Uniformity Clause and the

revaluation process. The Milewskis prevented the use of the

same methodology for their property. When the Milewskis refused

to allow the assessor an actual view of the real property, they

prevented the Town from complying with the mandate under the

Uniformity Clause to apply a uniform method of valuation. They

prevented the Town from treating similarly situated property

owners similarly. The Town had no choice but to use a different

method for valuing the Milewskis' real property.

¶178 The Town must nevertheless assess the Milewskis'

property. The Milewskis cannot escape assessment and taxation

by refusing to allow the assessor to view the interior of the

real property. To assess the Milewskis' real property, the Town

was forced to use the "best information that the assessor

[could] practicably obtain" in accordance with Wis. Stat. § 70.32(1).

¶179 To achieve even-handedness among real property owners

when a property owner refuses to allow an assessor an actual

view of the real property, the legislature imposes reasonable,

constitutional restrictions on the ability of property owners to

contest the amount of an assessment. The Town of Dover

describes achieving this goal of even-handedness among real

property owners in terms of avoiding the "free-rider" as follows:

27 No. 2015AP1523.ssa

If most homeowners allow the assessor into their homes to get an accurate assessment, but some homeowners are allowed to force the assessor to make his or her assessment without that crucial information and are still allowed to try to decrease their assessment by challenging it in other respects, the probable consequence is that wealthy homeowners will be able to avoid paying their fair share of taxes by hiding their interior improvements.35 ¶180 Unless the assessor has access to the interior of the

real property, the taxing entity is at a significant

disadvantage in justifying its assessment when challenged by the

property owner.

¶181 When a property owner challenges an assessment, there

is a rebuttable presumption that the assessment is correct.36 If

the property owner shows that the assessor has not adhered to

the statutes or the property owner presents significant contrary

evidence that establishes it is more probable than not that the

assessed value is not correct, the presumption ceases to apply.37

¶182 In the instant situation, the property owners (and

their expert) know the interior of the real property but the

Town (and its expert) do not. If the Town does not have

evidence regarding the interior of the real property, the Town

35 Brief of Defendant-Respondent Town of Dover and Board of Review for the Town of Dover at 17. 36 Walgreen Co. v. City of Madison, 2008 WI 80, ¶17, 311 Wis. 2d 158, 752 N.W.2d 687; Adams Outdoor Advertising, Ltd. v. City of Madison, 2006 WI 104, ¶26, 294 Wis. 2d 441, 717 N.W.2d 803. 37 Wis. Stat. § 70.47(13); Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶9, 351 Wis. 2d 439, 839 N.W.2d 893 (citing Wis. Stat. § 903.01 for the proposition that an evidentiary presumption shifts the burden to the challenger).

28 No. 2015AP1523.ssa

cannot rebut the property owners' evidence. To avoid this

situation, the legislature has restricted the property owner's

ability to contest the amount of the assessment if the property

owner refuses the assessor an actual view.

¶183 According to the lead opinion, a property owner can,

without any adverse consequences, refuse an assessor an actual

view of the real property and apparently can still contest the

amount of the assessment. The result is two-fold: (1) The

property owner and the Town (which represents all property

owners) are not on an equal, fair, level "playing field" in

debating the amount of the assessment; and (2) the decision

maker will not have the full information that the assessor could

provide (if he or she had an actual view) upon which to

determine the amount of the assessment. As the court of appeals

concluded, "[t]he interior view of the home is one of the most

important pieces of evidence that the tax assessor must consider

when making an assessment. No other means are as effective to

provide an accurate valuation." Milewski v. Town of Dover, No. 2015AP1523, unpublished slip op., ¶19 (Wis. Ct. App. May 4,

2016).

¶184 An assessment decision resting on only one side's (the

property owner's) presentation of evidence relating to the

interior of the property is very apt to be erroneous. The law

recognizes the importance of a decision's being based on full

29 No. 2015AP1523.ssa

and complete information.38 Restricting the ability of a

property owner who refuses the assessor an actual view to

contest the amount of the assessment is thus necessary to assure

that both the property owner and the taxing entity have equal

access to material information and that the decision maker has

this information to enable it to establish a just and equitable

assessment.

¶185 The lead opinion asserts that the Milewskis may suffer

adverse consequences, "substantial impediments," and

"evidentiary consequences" as a result of refusing the assessor

an actual view, but the lead opinion does not reveal them; they

are kept a secret, not to be divulged by the lead opinion. See

lead op., ¶26 n.11. See also my discussion in Part VI of this

dissent, asserting that the meaning of the mandate is

clandestine.

¶186 Of course, the legislature could have chosen a

different path to restrict the non-consenting property owner's

rights to contest the amount of an assessment. For example, the legislature could have permitted the non-consenting property

owner to appear before the board to contest the amount of the

assessment but could have barred him or her from submitting any

evidence relating to the interior of the real property.

38 See, e.g., Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980) ("The responsibility of the sentencing court is to acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing [the] sentence.").

30 No. 2015AP1523.ssa

¶187 Without such evidence, in all likelihood, the non-

consenting property owner's challenge to the amount of the

assessment would be dismissed. The result would be the same as

the legislature's simply barring from the outset the non-

consenting property owner from contesting the amount of the

assessment. The legislature's decision to bar a non-consenting

property owner from contesting the amount of the assessment is

different in form, but not in substance, from barring a non-

consenting property owner from introducing evidence. The

legislature has made a sound, constitutional policy choice that

this court should not overturn.

¶188 In sum, an interior (and exterior) view of real

property (an actual view) is germane to, and has an extremely

powerful nexus with, valuation and assessment. The legislature

has a strong interest in inducing real property owners to

consent to an assessor's actual view of the real property and to

treat property owners who do consent differently in contesting

the amount of an assessment from property owners who do not consent. The challenged statutes compellingly relate to the

governmental interest of uniform taxation and fairness to all

property owners.

¶189 With the robust government interest in uniformity and

fairness in mind, I examine the Fourth and Fourteenth

Amendments.

¶190 To recap, according to the lead opinion, the statutes

force an unconstitutional choice on property owners: On the one hand, consent to an assessor's viewing the interior of a home

31 No. 2015AP1523.ssa

(relinquishing a protected Fourth Amendment right) and retain

the right to a hearing in which to contest the amount of the

assessment (a procedural due process right), and on the other

hand, refuse to consent to an assessor's viewing the interior of

a home (maintaining a protected Fourth Amendment right) and

relinquish the right to a hearing in which to contest the amount

of the assessment (relinquishing a procedural due process

right). I disagree with this portrayal of a constitutional

dilemma.

¶191 As noted above, there was no search, and the Milewskis

have had due process hearings in which they have asserted their

challenge to the assessment and the statutes.

¶192 Moreover, the touchstone of the Fourth Amendment is

reasonableness. Brigham City v. Stuart, 547 U.S. 398, 403

(2006). Not all searches violate the Fourth Amendment, only

unreasonable ones. The determination of whether a particular

search is reasonable must be made by "balancing its intrusion on

the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v.

Prouse, 440 U.S. 648, 654 (1979).39

¶193 Recently, the United States Supreme Court explained

the reasonableness standard in Fourth Amendment jurisprudence

39 Ohio v. Robinette, 519 U.S. 33, 39 (1996) ("Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances."); State v. Gaulrapp, 207 Wis. 2d 600, 607, 558 N.W.2d 696 (Ct. App. 1996) ("[T]he Fourth Amendment's touchstone is reasonableness, which is measured in objective terms by examining the totality of the circumstances.").

32 No. 2015AP1523.ssa

and the balancing of the intrusion and the governmental

interests as follows:

Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions [a blood draw] that are "reasonable" in that they have a "nexus" to the privilege of driving and entail penalties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21–27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016).

¶194 The challenged statutes do not require a property

owner to relinquish a Fourth Amendment right by permitting an

assessor's entry into the home.

¶195 Rather, the statutes offer the property owner an

incentive, an inducement, to consent to an assessor's entry into

the home. An entry in the home is an intrusion. But the level

of intrusion for tax assessment purposes is less of an intrusion on personal privacy and dignity than other searches.

¶196 A tax assessor would not be rummaging through a real

property owner's personal effects, file cabinets, computers,

closets, medical cabinets, drawers, locked cabinets or other

private materials not germane to valuing the physical attributes

of the real property. Moreover, the amount of time taken by an assessor to view the home is ordinarily much shorter than the

time taken in a search conducted in the course of a criminal 33 No. 2015AP1523.ssa

investigation.40 In an assessment search, the property owner is

not singled out as the object of official suspicion. Nothing is

seized. The property owner is given advance notice and the

entry is at a convenient time for the property owner. The

property owner may remove or conceal any personal effects before

the assessor arrives.

¶197 The legislature's inducement to obtain the property

owner's consent to the assessor's entry is to require the non-

consenting property owner to forgo a hearing at which the owner

may contest the amount of the assessment. The inducement is

more than reasonable in light of the governmental interests

involved.

¶198 In examining the procedural due process issue the lead

opinion raises, I note that the touchstone of procedural due

process is that due process is "flexible and requires only such

procedural protections as the particular situation demands."41

"Since the time of [its] early explanations of due process," the

40 "[T]he purpose for the [governmental] interference bears upon the intrusiveness of government action. A criminal investigation is generally more intrusive than an administrative or regulatory investigation . . . ." Widgren v. Maple Grove Twp., 429 F.3d 575, 584 (6th Cir. 2005) (citing 5 Wayne R. LaFave et al., Search and Seizure: A Treatise on the Fourth Amendment § 10.1(b) (4th ed. 2004)). 41 State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 512, 261 N.W.2d 434, 444 (1978) ("[D]ue process is satisfied if the statutory procedures provide an opportunity to be heard in court at a meaningful time and in a meaningful manner. . . . Due process is flexible and requires only such procedural protections as the particular situation demands.") (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

34 No. 2015AP1523.ssa

United States Supreme Court has "understood the core of the

concept to be protection against arbitrary action."42 The

challenged statutes are not arbitrary; they are reasonable and

germane to significant governmental interests.

¶199 As discussed above, the parties will not be on an

equal footing at a hearing to determine the assessment if the

Town will not have information about the interior of the real

property to defend its assessment. The decision maker will not

have the benefit of full information upon which to establish an

assessment. The non-consenting property owner may thus be able

to distort its assessment to the detriment of the other property

owners and to impinge on the Town's ability to comply with the

Uniformity Clause.

¶200 The legislative restriction upon the Milewskis' right

to contest the amount of the assessment is more than reasonable

under the circumstances. The statutes do not impose an

arbitrary restriction on the property owner and do not violate

due process. Considering the countervailing governmental interest in uniform taxation, the challenged statutes do not

constitute government action arbitrarily limiting the Milewskis'

due process rights.

¶201 In sum, bearing in mind the interests of the real

property owner and the public, I conclude that the options the

42 Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998); accord Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against arbitrary action of government.").

35 No. 2015AP1523.ssa

legislature offered to the Milewskis do not impair, to an

appreciable extent, the rights involved and do promote, to an

appreciable extent, weighty governmental interests.

IV

¶202 I conclude that the options the legislature offers the

property owner are constitutionally sound government-imposed

"tough" choices. I analogize the challenged statutes to

Wisconsin's Implied Consent Law, Wis. Stat. § 343.305.

¶203 Tough choices, even choices that discourage the

exercise of a Fourth Amendment right, are common in the law and

are viewed as voluntary and constitutionally valid:

The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.43 The lead opinion apparently refuses to accept that such a choice

is valid. See, e.g., lead op., ¶68 n.29.

¶204 In Wisconsin's Implied Consent Law, the State imposes a choice on drivers. The choice has the effect of discouraging

43 McGautha v. California, 402 U.S. 183, 213 (1971), reh'g granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S. 941 (1972) (internal quotation marks and citations omitted) ("The contention is that where guilt and punishment are to be determined by a jury at a single trial the desire to address the jury on punishment unduly encourages waiver of the defendant's privilege to remain silent on the issue of guilt, or, to put the matter another way, that the single-verdict procedure unlawfully compels the defendant to become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him.").

36 No. 2015AP1523.ssa

the exercise of a Fourth Amendment right to be free from a

government search of a person's body. The Wisconsin Implied

Consent Law is constitutional.44

¶205 Under the Wisconsin Implied Consent Law, a driver

faces the "difficult choice" between consenting to a blood draw

or refusing to consent to a blood draw and facing revocation of

the driver's license and the prosecution's use of "refusal

evidence" at trial.45 See State v. Padley, 2014 WI App 65, ¶27,

354 Wis. 2d 545, 849 N.W.2d 867.46 A blood draw is a search

44 See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013) ("States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense."); Birchfield, 136 S. Ct. at 2185 ("Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply . . . and nothing we say here should be read to cast doubt on them."). 45 The use of refusal evidence at trial has been held not to violate due process. North Dakota v. Neville, 459 U.S. 553 (1983); State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980); State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (1986). 46 Although the Implied Consent Law seeks waiver of a Fourth Amendment right in exchange for retaining the "privilege of an operator's license," and, according to the lead opinion, the tax assessment system seeks waiver of a Fourth Amendment right in exchange for retaining a due process right to challenge the assessment, the analogy is apt.

(continued) 37 No. 2015AP1523.ssa

under the Fourth Amendment. It is "an invasion of bodily

integrity" and "implicates an individual's most personal and

deep-rooted expectations of privacy." Missouri v. McNeely, 133

S. Ct. 1552, 1558 (2013) (internal quotation marks and quoted

source omitted).

¶206 The Wisconsin property tax assessment system is, in

many ways, strikingly similar to Wisconsin's Implied Consent

Law. An entry into a home, like a blood draw, implicates

significant privacy concerns; both are intrusions restricted by

the Fourth Amendment. Both the tax assessment system and the

Implied Consent Law impose civil consequences, not criminal

consequences, if the individual exercises his or her Fourth

The United States Supreme Court has not distinguished between a privilege and a right for these purposes. See, e.g., Sherbert v. Verner, 374 U.S. 398, 404 (1963) ("Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege.' It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972) ("[T]he Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights."); Graham v. Richardson, 403 U.S. 365, 374 (1971) ("But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege.'"); Kerry v. Din, 135 S. Ct. 2128, 2143 (2015) (Breyer, J., dissenting) ("Justice SCALIA's response——that nonconstitutional law creates an 'expectation' that merits procedural protection under the Due Process Clause only if there is an unequivocal statutory right,——is sorely mistaken. His argument rests on the rights/privilege distinction that this Court rejected almost five decades ago, in the seminal case of Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).").

38 No. 2015AP1523.ssa

Amendment constitutional right to refuse to consent to the

search.47

¶207 And although the Fourth Amendment right to refuse a

blood draw or a home entry can be exercised, the exercise comes

with civil statutory consequences. The civil consequences are

supported by strong governmental interests. Implied consent

laws serve the paramount governmental interest of enforcing

drunk-driving laws and, thus, protecting public safety.48 The

tax assessment system serves the paramount government interest

of raising funds and ensuring uniform and fair taxation.

¶208 Considering the apt analogy between Wisconsin's

Implied Consent Law and the Wisconsin tax assessment system, I

agree with the court of appeals' reasoning in the instant case

upholding the constitutionality of the statutory choice imposed

on the Milewskis:

Here, Plaintiffs have the "right" to refuse to allow Gardiner access to their home, but the consequence

47 See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads."); Camara v. Mun. Ct., 387 U.S. 523, 540 (1967) ("We therefore conclude that appellant has a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted [of a crime] for refusing to consent to the inspection.") (emphasis added). 48 See Birchfield, 136 S. Ct. at 2173 ("The States and the Federal Government have a paramount interest . . . in preserving [public highway] safety . . . .") (internal quotation marks and quoted source omitted).

39 No. 2015AP1523.ssa

that flows from the refusal is cessation of the right to challenge the tax assessment and pay without recourse. There is no due process violation; the choice belongs entirely to Plaintiffs.49 V

¶209 Another way of depicting the unexceptional aspects of

the challenged tax assessment statutes is to analogize them to

the unremarkable principle of tax law that a taxpayer must make

full disclosure to a taxing authority or face civil tax

consequences for failing to divulge information to the taxing

authority. The consequence for refusing an assessor's

reasonable request for an interior view is not retaliatory or

punitive. Rather it is a legal, logical extension of the usual

rule that a taxpayer who has material information about his or

her tax matters must divulge it to the taxing authority.

¶210 The United States Supreme Court explained this

principle in Wyman v. James, 400 U.S. 309, 404 (1971). In

Wyman, the Court explained that disallowing a deduction (which

increased the tax, a taking of property according to the lead

opinion) was a valid consequence for the taxpayer's refusal to submit proof substantiating the claimed deduction:

[In a federal income tax dispute between a taxpayer and an IRS agent] an Internal Revenue Service agent, in making a routine civil audit of a taxpayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully

49 Milewski v. Town of Dover, No.2015AP1523, unpublished slip op., ¶21 (Wis. Ct. App. May 4, 2016).

40 No. 2015AP1523.ssa

within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. . . . [N]othing of constitutional magnitude is involved. Wyman, 400 U.S. at 389.

¶211 Similarly, this court has confirmed that "the

privilege of appearing before the board of review and having

assessment errors corrected is coupled with a duty of the

taxpayer to make full disclosure of information." Hermann v.

Town of Delavan, 215 Wis. 2d 370, 393, 572 N.W.2d 855 (1998)

(citing Wis. Stat. § 70.47(7)(a)).50

¶212 Wisconsin Stat. § 70.47(7)(a) explicitly disallows a

person "to question [in any action or proceeding] the amount or

valuation of property unless . . . [the person] made full

disclosure before said board, under oath of all that person's

property liable to assessment . . . and the value thereof."

Similarly, Wis. Stat. § 70.47(7)(af) states that no person may

object to a valuation if that valuation was made by the assessor

using the income method unless the person supplies to the

50 In Hermann v. Town of Delavan, 215 Wis. 2d 370, 376, 572 N.W.2d 855, a group of taxpayers brought a claim under Wis. Stat. § 893.80 alleging that the Town's method of assessment was unfair and non-uniform. Because the taxpayers' complaint did not allege their prior compliance with the property tax appeal procedures set forth in Wis. Stat. § 70.47, this court affirmed the circuit court's dismissal of the taxpayers' complaint for failing to state a claim for upon which relief could be granted; the taxpayers had failed to exhaust the exclusive statutory remedies addressing their overassessment claims, so their claims were dismissed. Hermann, 215 Wis. 2d at 377.

41 No. 2015AP1523.ssa

assessor all of the information about income and expenses that

the assessor requests.51

¶213 At the turn of the last century, Wisconsin Supreme

Court Justice Joshua Eric Dodge eloquently explained the

rationale behind the principle that the taxpayer who has

information must disgorge the information (to which the taxing

authority does not have access) in order to challenge the

assessment, to ensure that the property owner and the taxing

entity have a "level playing field" before the decision maker so

that the decision maker can allocate the burden of taxation

fairly:

[The taxing authority] and the public are entitled that [the taxing authority] shall not be successfully attacked in court without full and frank disclosure from the taxpayer of the superior knowledge which he necessarily has upon the subject. It is perhaps utopian to expect of human selfishness voluntary original information . . . , but when one presents himself to give evidence against the amount which the assessor has fixed in the light, or obscurity, which necessarily surrounds him, it is but right that the taxpayer furnish all the enlightenment in his power without evasion or concealment. . . .

51 The legislature has barred taxpayers from challenging tax assessments for personal property if the taxpayer failed to make full disclosure. See, e.g., Vill. of Westby v. Bekkedal, 172 Wis. 114, 121-22, 178 N.W. 451, 454 (1920) (taxpayer who did not comply with statutory requirement to attend hearing and disclose all income subject to assessment was estopped from challenging the assessment); State ex rel. Foster v. Williams, 123 Wis. 73, 75, 100 N.W. 1052, 1052 (1904) (1903 Wis. Laws ch. 284, § 2, barred the taxpayer from questioning the board's valuation unless the taxpayer made full disclosure before the board, under oath, of all his or her personal property liable to assessment in the district and the value thereof; holding that evasive answers do not constitute a full disclosure).

42 No. 2015AP1523.ssa

State ex rel. Foster v. Williams, 123 Wis. 73, 76-77, 100

N.W. 1052, 1053 (1904).

¶214 By refusing to permit the assessor an interior view of

the real property, the property owner fails to make a full

disclosure to the taxing entity. Because the property owner

fails to make full disclosure, the owner is restricted from

contesting the amount of the assessment. By holding the

challenged statutes unconstitutional as applied, the lead

opinion essentially eviscerates the longstanding full disclosure

rule, to the detriment of uniformity and fairness.52

52 Less persuasive, but worth mentioning as some support for the constitutionality of the challenged statutes, is that the challenged statutes may be considered analogous to several prerequisites a property owner must meet to contest the assessment:

• Wis. Stat. § 70.47(7)(a): A person who owns land and improvements to that land may not object only to the valuation of that land or only to the valuation of improvements to that land.

• Wis. Stat. § 74.37(4)(b): No claim or action for an excessive assessment may be brought or maintained unless the tax for which the claim is filed is timely paid.

• Wis. Stat. § 74.3(4)(c): No claim or action for an excessive assessment may be brought or maintained if the assessment of the property for the same year is contested under enumerated sections of chapter 70.

• The real property owner must exhaust administrative remedies. See Northbrook Wis., LLC v. City of Niagara, 2014 WI App 22, ¶25, 352 Wis. 2d 657, 843 N.W.2d 851 ("That Northbrook failed to avail itself of the opportunity to object before the Board of Review does not mean its right to due process was violated.").

43 No. 2015AP1523.ssa

¶215 In the instant case, the legislature has given notice

to property owners that it deems an assessor's actual view of

real property material evidence and that the property owners'

failure to produce this material evidence will result in

restricting the property owners' right to contest the amount of

the assessment. By failing to permit an interior view of the

real property, property owners cannot at the same time take

advantage of the law's protection of the information and use the

information to seek an advantage against an opposing person

(including a government entity) that does not otherwise have

access to the information.

¶216 The full disclosure rule exists outside of tax law.

For example, if a plaintiff claiming damages for personal injury

refuses to disclose his or her otherwise confidential medical

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. The brief seeks

merely a declaration that Wis. Stat. §§ 70.47(7)(aa) and

74.37(4)(a) together violate their constitutional rights and

this court's reversal of the decision of the court of appeals.

¶222 The assessor's brief concludes that, should the

Milewskis prevail in this court, their remedy should be a remand of the matter to the Town Board of Review to determine the

assessment. The assessor proposes this remedy because the

Milewskis' challenge to the amount of the assessment was not

heard by the Board and the statutory procedures require the

matter be heard first by the Board. Citing Hermann v. Town of

Delavan, 215 Wis. 2d 370, 381-83, 572 N.W.2d 855 (1998), the

assessor argues that Chapters 70 and 74 are intended to be the

exclusive means by which the property owner may contest the amount of the assessment.

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. But the Town adds that

the Milewskis should not have the opportunity to "use any

information that they have withheld, i.e., regarding the

interior of the home."

¶224 Whether the circuit court or the Board of Review

determines the assessment, I agree with the Town and the

assessors that neither the Milewskis nor any of their witnesses

should be able to use any information that they have regarding

the interior of the real property. Their challenge to the

assessment should be limited to the assessor's calculation of

the value of the real property. Without this limit on the

Milewskis' challenge to the assessment of their property, the

Town's duty to assess real property uniformly and fairly may

become a nullity.

¶225 For the reasons set forth, I write separately in

dissent. ¶226 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

47 No. 2015AP1523.ssa