The Wisconsin Supreme Court will soon decide whether Wisconsin’s law on property tax assessment is constitutional. The Court heard oral arguments for Milewski v. Town of Dover, No. 2015AP152, 2016 WL 1761988 (Wis. Ct. App. May 4, 2016) (unpublished opinion) last month, and the Wisconsin Realtors Association, the Institute for Justice, and the Wisconsin Department of Justice filed amicus briefs in support of the plaintiffs. The Milewski case could significantly change how municipalities appraise home values for purposes of assessing property taxes.
The Town of Dover hired Gardiner Appraisal Service, LLC to perform a new assessment of all real property in the town for the 2013 tax year. The plaintiffs, Vincent Milewski and Morganne MacDonald, are homeowners in the Town of Dover. They received a notice stating that an assessor—a Gardiner representative—would be stopping by to view the interior of their home. The plaintiffs denied the assessor entry into their home. Gardiner sent another letter to the plaintiffs, stating that their property needed to be assessed. The second letter explained that, Wis. Stat. § 70.32(1), requires an assessor to value property based upon “actual view or from the best information that the assessor can practicably obtain,” and that Wis. Stat. § 70.47(7)(aa) prohibits homeowners from contesting their assessments if they refused “a reasonable written request…to view [their] property.”
When the plaintiffs did not provide the assessor access to the interior of their home, Gardiner assessed the value of the property at $307,100. This assessment was a 12.12% increase in the value from the previous assessment. Milewski, slip op., ¶5. Gardiner explained that it reached this figure by taking into account several factors including: (1) the possibility that the plaintiffs remodeled over the past nine years (although this had not been verified); (2) its inability to evaluate if the effective age of the home increased or decreased; and (3) the fact that assessed values of many area homes had increased that year. Id. Citing Wis. Stat. § 70.47(7)(aa), the board of review rejected the plaintiffs’ request to review the assessment because the board found the plaintiffs had refused a reasonable request to view the property. Id.
Having struck out with the board of review, the plaintiffs filed a complaint in circuit court, arguing that the Wisconsin statutes for property tax assessment and appeals were unconstitutional and that Gardiner had over-assessed their property. The circuit court granted the Town’s and Gardiner’s motions for summary judgment, dismissing the claims against them. The Wisconsin Court of Appeals affirmed that ruling.
The plaintiffs argued on appeal that the Fourth Amendment, which guarantees a right to privacy, protects them from compelled interior inspections. Id. ¶13. For support, the plaintiffs relied on Camara v. Municipal Court, 387 U.S. 523 (1967), which held that a housing inspector needed a warrant to enter the plaintiff’s apartment to conduct routine annual inspections. Id. The Court of Appeals distinguished Camara because no civil or criminal penalties resulted from the plaintiffs’ decision to deny the tax assessor entry. Id. ¶14. The Court of Appeals likened this case to Wyman v. James, 400 U.S. 309, 317-18 (1971), where the Supreme Court held that social worker visits conducted pursuant to New York’s welfare program were not Fourth Amendment searches because the visitation was not forced and the beneficiary’s denial to enter the home was not a criminal act. Here, the Court of Appeals reasoned that the plaintiffs were not being forced to allow Gardiner entry and they could refuse.
The plaintiffs also argued, to no avail, that Gardiner retaliated against them with a higher-than-reasonable assessment because they had not allowed an assessor to view their home’s interior. Milewski, slip op., ¶22. The Court of Appeals said the plaintiffs failed to show that Gardiner intentionally assessed their property for greater than true value. In addition, the Court of Appeals held that Gardiner followed the law in appraising the property, rejecting the plaintiffs’ argument that Gardiner had ignored the statutory requirement to base appraisals on the “best information.” Id., ¶24. Therefore, the Court of Appeals dismissed all of plaintiffs’ claims.
The Wisconsin Supreme Court must now decide whether Wisconsin’s property tax assessment laws invade the right to privacy guaranteed by the Fourth Amendment. If the Fourth Amendment is implicated, the Court must decide whether it is reasonable for the property tax assessment laws to mandate warrantless searches. If the Supreme Court reverses the lower courts, Wisconsin homeowners might be able to freely deny interior property appraisals without forfeiting the ability to contest the resulting assessment to the board of review. This could complicate municipal efforts to assess properties for taxation purposes.