The SCOW Docket: Waukesha loses a case against itself

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: City of Waukesha v. City of Waukesha Board of Review
​
Majority: Ann Walsh Bradley (19 pages) for a unanimous court.

Walsh Bradley

The upshot

This case raises the novel question of whether the municipality itself can seek certiorari review (a higher court review of a lower court decision) of a determination of the municipality's board of review. The City contends that the statutory language of Wis. Stat. § 70.47 allows it to appeal a Board determination by bringing a certiorari action....The Board, in contrast, argues that the City has no such right and that the City's participation in a tax assessment proceeding ends after the Board has made its decision. 

We conclude that Wis. Stat. § 70.47 does not allow the City to seek certiorari review of a decision of the Board. Accordingly, we affirm the decision of the court of appeals.

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Background

The Salem United Methodist Church (the Church) owns a piece of property located within the City. In 2017, the property was assessed at a value of $51,900, but the following year the assessment was raised to $642,200. The reassessment was triggered by the Church putting the property up for sale. Ultimately, the Church received an offer of $1,000,000 for a portion of the property.

Taking exception to the increase in the assessed value of its property, the Church filed an objection. It submitted that the value of the property should be properly assessed at $108,655. The Church argued that the City's valuation was based on speculative future use and that it did not properly account for the undeveloped nature of the land. 

At a hearing held before the Board, both the taxpayer and the City appeared as parties. The City argued in favor of the City assessor's valuation. After taking testimony from the assessor and a representative of the Church, the Board accepted the Church's valuation, but rounded up slightly to arrive at a value of $108,700. 

The City appealed the Board's determination by seeking certiorari review in the circuit court...It argued that the Board acted contrary to law because it failed to uphold the presumption of correctness that attaches to an assessor's valuation, that the Board's determination was not supported by sufficient credible evidence, and that the Board's decision was arbitrary and unreasonable.

[T]he Board moved to quash the writ. As relevant here, it asserted that the City lacks the authority to appeal a decision of its own Board of Review by certiorari. In other words, it argued that § 70.47 affords only taxpayers, and not municipalities, the ability to seek certiorari review of a board decision. 

The judge denied the Board of Review's motion. Turning to the merits of the City's claims, the circuit court agreed with the City that the Church did not present sufficient evidence to overcome the presumption of correctness. It thus granted the writ of certiorari and remanded to the Board for further proceedings.

The Court of Appeals reversed the Circuit Court, ruling that the city did not have a right to challenge the board's findings. The city appealed to the Supreme Court.

The guts

Wisconsin Stat. § 70.47(13) addresses certiorari review of board decisions. This subsection provides in relevant part: "Except as provided in s. 70.85, appeal from the determination of the board of review shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice." 

The language of subsec. (13) thus guides the reader to subsec. (12), which sets forth:

"Prior to final adjournment, the board of review shall provide the objector, or the appropriate party, notice by personal delivery or by mail, return receipt required, of the amount of the assessment as finalized by the board and an explanation of appeal rights and procedures. Upon delivering or mailing the notice under this subsection, the clerk of the board of review shall prepare an affidavit specifying the date when that notice was delivered or mailed."

The Board argues, and the court of appeals agreed, that the above language gives the taxpayer exclusively, and not the City, the authority to seek certiorari review of a Board decision. Specifically, the Board asserts that the trigger for filing a certiorari action contained in Wis. Stat. § 70.47(13) is the receipt of notice by the taxpayer. In contrast, § 70.47(13) does not, according to the Board, include any trigger for the City to file a certiorari action or even any requirement that the City receive notice of a Board decision. 

On the other hand, the City contends that (the statute) addresses only when certiorari review may be sought, not who may seek it. In other words, the City asserts that nothing in Wis. Stat. §70.47(13) grants any right to appeal whatsoever, and that instead it only ensures that the taxpayer is aware of a right to appeal and fixes the timing of the notice that must be sent. 

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However, a close reading of (the law) reveals that the City's argument does not hold water. Again, subsec. (13) sets forth that the deadline for filing a certiorari action is triggered by the taxpayer's receipt of the notice....But (the statute) does not provide an avenue for the City to be informed of when a taxpayer receives the notice. 

As stated, if the mail option is utilized, then the board clerk's affidavit indicates only when the notice was mailed, not when it was delivered or received by the taxpayer. However, the date a notice is mailed is most likely not the same as the date the notice is received. The City could guess as to what its ultimate filing deadline would be, estimating the length of time the mail would take to arrive and surmising when someone would be available to sign for the "return receipt required" mail. There is no statutory mechanism for calculating an exact date. 

Additionally, subsec. (12) contains no requirement that the board clerk provide a copy of the affidavit to the City. Although in practice the City may receive it from the board clerk, there is no statutory language to support the proposition that it is required to be provided with the affidavit. 

The fact that there is no certain statutory deadline provided for the City to file a certiorari action indicates that the City does not have such a right. Elsewhere in the statutes, where a party has a right to file an appeal to the circuit court or court of appeals, the legislature has provided a clear deadline for doing so.

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Additionally, were the City to prevail in this appeal and accordingly raise the assessed value of the Church property above the value as determined by the Board, there is no statutory remedy to which the City can readily point. When the court inquired about the apparent lack of a remedy at oral argument, the City acknowledged that it did not know what the remedy should be if it were to win.