Court of Appeals Expands Municipal Protection Conferred by Wisconsin’s Recreational Immunity Statute

Published by Laura E. Callan on | Permalink

Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52, provides municipalities with broad immunity from liability for injuries to any person engaged in recreational activities on municipal property. The statute sets forth a three-part definition of recreational activity. The first part of the section defines recreational activity as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.” The second part of the statutory definition of recreational activity lists 29 specific activities denominated as recreational. The third part of the statutory definition broadly adds “and any other outdoor sport, game or educational activity.”

Wisconsin courts have wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities can be difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency, most recently in Wilmet v. Liberty Mutual Ins. Co., 2015AP2259 (Wis. Ct. App. Feb. 28, 2017). The case is of particular importance to municipalities, because the court construed the statute to broaden municipal recreational-related immunity.  

Mrs. Wilmet was at a city-owned and operated swimming pool to drop off her grandchildren. After dropping them off, she remained outside the premises, supervising her grandchildren from behind the fenced perimeter of the pool as they swam. Mrs. Wilmet’s grandson shouted to her that he was going to jump off the high dive. When Mrs. Wilmet observed there were no lifeguards in the area, she became concerned about her grandson’s safety and told her grandson to wait. She then entered the pool premises without paying the entry fee (but with the attendant’s permission), and went immediately from the entrance through the locker room and toward the high dive. Mrs. Wilmet did not plan to swim at the pool or stay on the premises following her grandson’s dive. As she walked toward the high dive, she tripped on a cement doorstop and was injured.

The Wilmets sued the municipality and its insurer. The city invoked the recreational immunity statute as an affirmative defense and sought the action’s dismissal on that basis.  The city argued that Mrs. Wilmet’s activity of supervising her grandson, who was himself engaged in a recreational activity, was sufficient to bring the Wilmets’ claims within the ambit of the recreational immunity statute.  The court of appeals agreed, basing its holding on principles of statutory interpretation and previously developed tests under which courts consider, among other factors, whether the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in the statute.

The court reasoned that supervising other persons, who are themselves engaged in recreational activities, involves actively overseeing or directing the performance of the recreational activity of another. Thus, the court concluded, “supervision” was akin to, and subsumed within, “practice” and “instruction” in a recreational activity, which the legislature specifically identified as giving rise to immunity. In addition, the court found that conferring recreational immunity for supervision is consistent with the legislature’s purpose in enacting the recreational immunity statute. Because it was undisputed that Mrs. Wilmet was supervising her grandson’s recreational activity on the city’s pool grounds at the time of her injury, the city was entitled to immunity under § 895.52 from her claims.

For more information about statutory exceptions to recreational immunity and case law interpretations of the recreational immunity statute that might expose a municipality to potential liability, contact any member of Stafford Rosenbaum LLP Government Team.

Plain Language in Oshkosh Special Events Ordinance Prevails

Published by Susan Allen, Holly J. Wilson on | Permalink

Many municipal ordinances do not define each term in each section. Instead, municipalities may rely on a common meaning to define an ordinance term. The Wisconsin Court of Appeals in City of Oshkosh v. Kubiak, 2016AP804 (Wis. Ct. App. Feb. 15, 2017) (unpublished opinion) (recommended for publication), affirmed this fact. In Kubiak, the Wisconsin Court of Appeals reversed a circuit court ruling that the meaning of “organizer” in the City’s special events ordinance was unconstitutionally vague.

For many years, college students in the Oshkosh area have participated in the semi-annual (April and October) Oshkosh Pub Crawl where students walk downtown Oshkosh and patronize the local taverns. On January 1, 2011, the City of Oshkosh enacted a special events ordinance. The ordinance required an event organizer to obtain a permit before holding a special event. The ordinance also required the applicant to reimburse the City for any costs incurred by the City for providing extraordinary services for the event. For the semi-annual pub crawls in 2011, 2012, and 2013, the defendant, Joseph Kubiak, through Oshkosh Pub Crawl, LLC, applied for a permit and made the required payments for extraordinary services in accordance with the ordinance. However, in April and October 2014, Kubiak did not get a permit for the Pub Crawl.

The City filed suit in circuit court against Kubiak for failing to apply for a permit. The City argued that Kubiak was the organizer of the event under the ordinance. Kubiak disagreed. The circuit court dismissed the lawsuit, ruling that the meaning of “organizer” was unconstitutionally vague.

The court of appeals reversed, holding that the term “organizer” in the ordinance was not unconstitutionally vague. The court held that “people of ordinary intelligence can read and sufficiently understand the requirements of the [o]rdinance.” Id. ¶ 14. The court pointed to the standard definition of organizer for guidance and stated that “an organizer must have some direct effect on arranging the event.” Id. The court concluded that the ordinance restricts its applicability to those who take an active role in the special event, not merely those who encourage others to attend. Thus, the court remanded this action to the circuit court to determine whether Kubiak was an organizer under the ordinance and, if so, whether he violated that ordinance.

This case reinforces the idea that when drafting an ordinance a municipality need not define every term, or even most terms. The municipality should be aware that if ordinance terms are not defined, courts may interpret terms according to the term’s ordinary meaning often found in a recognized dictionary.

Wisconsin’s Property Tax Assessment Statutes Challenge to be Decided by the Wisconsin Supreme Court

Published by Jeffrey A. Mandell, Holly J. Wilson on | Permalink

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.

Wisconsin Supreme Court: Blood Draw by EMT in County Jail for OWI Test

Published by Holly J. Wilson, Erika Bierma, Susan Allen on | Permalink

Under Wisconsin law, blood can be drawn from a person arrested for operating a vehicle while intoxicated “OWI”) to determine the presence or quantity of alcohol in the person’s body. However, only a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician may withdraw the blood. The Wisconsin Supreme Court, in Wisconsin v. Kozel, 2017 WI 3, ___ Wis. 2d ___, ___ N.W.2d ___, recently concluded that an EMT who drew an alleged drunk driver’s blood was a “person acting under the direction of a physician” under Wis. Stat. § 343.305(5)(b), and therefore fell within the category of individuals authorized to draw blood.  As a result, the Court concluded that the suspect’s blood was drawn in a constitutionally reasonable manner.

In August 2013, a Sauk County Deputy Sheriff arrested Patrick Kozel for allegedly driving while intoxicated. At the Sauk County jail, Kozel consented to have his blood drawn. An EMT employed by Baraboo District Ambulance Service conducted the blood draw. Testing by the Medical Toxicology Section of the Wisconsin State Laboratory of Hygiene showed a blood ethanol level of 0.196 g/100 mL, in excess of the legal limit of 0.08 g/100 mL. See Wis. Stat. § 340.01(46m). In October 2013, the Sauk County District Attorney’s office charged Kozel with one count of operating a motor vehicle while intoxicated, second offense, and one count of operating with a prohibited alcohol concentration, second offense.

Subsequently, Kozel filed a motion to suppress the results of his blood test. Kozel argued that: (1) his blood was not taken by a person statutorily authorized to do so, namely a “person acting under the direction of a physician,” Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a constitutionally unreasonable manner, see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Kozel, 2017 WI 3, ¶ 10. The State introduced the following evidence during the motion hearing:

  • As of August of 2013, the EMT was both licensed and certified by the State of Wisconsin to “perform legal blood draws.”

  • The EMT had been performing legal blood draws since June of 2009 under the supervision of a physician licensed in the State of Wisconsin who is the “medical director” of the Ambulance Service.

  • As the medical director, the doctor “signs off on not only [EMT] licenses, which allow [the EMTs] to practice medicine, but also any of the additional training and/or procedures that require approval.”

Id. ¶ 14.

Based on these facts, the circuit court denied Kozel’s motion to suppress the blood draw result. Kozel appealed. The court of appeals reversed, remanding the case to the circuit court to suppress the evidence obtained from Kozel’s blood. The court of appeals concluded that “the evidence was insufficient to establish that the EMT [who drew Kozel’s blood] was operating under the direction of a physician.” Id. ¶ 28. Given that conclusion, the court of appeals found it unnecessary to analyze whether the blood draw was constitutionally reasonable. The State appealed.

The supreme court reversed. First, the court concluded that the State’s evidence demonstrated that the EMT was acting under the direction of a physician because the doctor was in charge of the blood-drawing activities conducted by the EMT. See id. ¶ 39. The court rejected Kozel’s argument that the statute requires a specific type or degree of direction. Second, the court held that the blood draw in this case was constitutionally reasonable. Under the Fourth Amendment, the taking of a blood sample is a search, and therefore it must be reasonable. The court found that the evidence demonstrated the EMT was thoroughly trained and experienced in properly drawing blood, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail, and Kozel failed to demonstrate that he had objected to the particular circumstances of the blood draw. See id. ¶¶ 44-47.

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented. They concluded that there was insufficient evidence to support a finding that the EMT who drew Kozel’s blood was a “person acting under the direction of a physician” as required by Wis. Stat. § 343.305(5)(b), and that Kozel’s blood draw was not constitutionally reasonable based upon the facts of record.  See id. ¶ 55 (Bradley, J., dissenting). The dissent also argued the fact that the EMT was authorized to act under a physician’s license was not evidence of acting under the physician’s direction for purposes of the statute. The dissent made a distinction between “directed” and “authorized,” and concluded that there was insufficient evidence to establish the EMT was working under the direction of a physician. See id. ¶ 72 (Bradley, J., dissenting). The dissent also concluded the record was silent as to the existence of written protocols detailing how to conduct a blood draw. This appears to be the critical distinction between Kozel’s case and existing precedent. Based on the record deficiencies, the dissent concluded that there was insufficient evidence to support the majority’s conclusion that the EMT was acting “under the direction of a physician” as required by the statute. See id. ¶ 87 (Bradley, J., dissenting).

The dissent also analyzed the constitutional reasonableness of the blood draw. The dissent concluded it was unreasonable because there was no evidence of any written protocols or procedures in the record. Specifically, the supervising physician did not train the EMT, never witnessed the EMT perform a blood draw, and never approved the EMT’s blood-draw techniques. See id. ¶ 98 (Bradley, J., dissenting). The record also failed to establish evidence of safety and accuracy as required by cases that concluded the blood draw was constitutionally reasonable.

This case presents interesting questions regarding the location and staffing of blood draws.  Further, this case affirmed the blood-draw procedures employed by many Wisconsin jails. This case also provides a framework for how lower courts will likely analyze the constitutional implications of future blood draws, should they be challenged under the Fourth Amendment. Contact your Stafford Rosenbaum LLP criminal defense or municipal law attorney should you have any further questions.

Wisconsin Supreme Court to Determine Scope of Open Meetings Law in School District Dispute

Published by Jeffrey A. Mandell, Holly J. Wilson on | Permalink

In July 2011, as John Krueger’s son prepared to enter ninth grade in the Appleton Area School District, Krueger became concerned about the curriculum for the ninth-grade Communication Arts course. He requested the District offer an alternative curriculum for that course. The Superintendent asked members of the District’s Assessment, Curriculum, and Instruction Department to address Krueger’s concerns. Department staff, on their own initiative, decided to conduct a full review of the existing course materials and formed the Communication Arts 1 Review Committee for that purpose.

The Committee—comprised of seventeen district administrators, teachers, and staff—read approximately 93 fiction books, assessed their suitability to meet various curricular needs, and forwarded a recommended list of 23 books to the Appleton Area School District Board of Education. In the course of assessing the books it considered and developing its list of recommended texts, the Committee held nine meetings between October 2011 and March 2012. Each of those meetings was held without notice to the public and was closed to the public. When Krueger asked to attend the meetings, he was told that the meetings were not open to the public.

On Krueger’s behalf, the Wisconsin Institute for Law and Liberty then filed suit, alleging the School Board violated Wisconsin’s Open Meetings Law, Wis. Stat. § 19.83(1), by failing to give notice of and excluding the public from the Committee’s meetings. The circuit court granted summary judgment to the District. It reasoned that, because the Committee was not created by a directive of the School Board, the Committee was not a “governmental body” within the scope of the Open Meetings Law. Under the statute, such a body is “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order.” Wis. Stat. § 19.82(1).

Krueger appealed. In an unpublished opinion, the Wisconsin Court of Appeals affirmed the circuit court’s decision. See State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, 2016 WL 3510300 (Wis. Ct. App. June 28, 2016). Krueger was unable to direct the appellate court to any rule or order under which the District created the Committee.  Id. at *4 (¶ 18). The court found that there was no established District procedure for requesting an alternative course or responding to such a request. Id. at *5 (¶ 20).  As a result, when the members of the District’s Assessment, Curriculum, and Instruction Department addressed Krueger’s concerns, they did so by creating the Committee “[o]n their own initiative.”  Id. (¶ 21).  These facts, the court held, do not constitute the creation of a committee by “rule or order” under Open Meetings Law; thus, the Committee was not subject to the Law. Id.

On July 27, 2016, Krueger asked the Wisconsin Supreme Court to review the case. The court granted his petition last month. The parties are currently briefing the issues, and the supreme court will likely hear oral argument early next year.  The decision in this case could have a significant impact on what kinds of governmental bodies are required to conduct meetings in open session. Continue to watch Stafford’s blogs for updates on this case.

Governor Walker Signs Riparian Rights and Wetlands Bill into Law

Published by Paul Kent on | Permalink

On April 26, 2016, Governor Scott Walker signed Senate Bill 459 into law.  Now known as 2015 Act 387 (the “Act”), the proposal will clarify riparian landowners’ rights in a number of areas, including boathouse maintenance and repair, boat shelter construction, seawall installation and replacement, wetland applications, and sensitive area designations.  

The questions surrounding these regulatory issues have reached a fever pitch over the last decade and have been at the heart of a numerous of lawsuits.  Central to these disputes is the proper balance between property rights and regulation of water and wetlands. This bill was designed to clarify a number of these issues. 

First, the bill clarifies the areas of special natural resource (“ANSRI”) designation. The ANSRI designation was adopted in 2003 as part of a legislative compromise in which a very limited number of activities -- such as the placement of seasonal piers and repair of shoreline erosion control – were exempted from the DNR’s permitting process.  However, these exemptions did not apply in certain pristine or high-quality waterways, and in waterways deemed to be of significant “scientific value.”  This designation was intended to be narrowly applied to a finite, pre-identified group of waterways.  Instead, the DNR adopted a rule making the ANSRI designation applicable to thousands of waterways statewide, essentially nullifying the agreed-upon permit exemptions. The bill now provides specific lists of waters tied to the DNR’s surface water data viewer. 

Second, while the construction of new boathouses has been prohibited since 1979, over the last several years, the DNR has taken an increasingly rigid view of the legality of pre-1979 boathouses. Recently, the DNR began maintaining that pre-1979 boathouses not exclusively used for navigational purposes are illegal.  This potentially affected thousands of boathouses that have been partially or entirely converted into vacation homes or other uses.  The bill now clarifies that pre-1979 boathouses can continue to be maintained for any use provided there was at least some history of use as a boathouse.

Third, the DNR took an expansive view of its authority under Wis. Stat. § 281.36 to assert oversight over projects impacting wetlands.  The DNR interpreted its authority to review and impose conditions under its “practicable alternatives” analysis to include the ability to require a permit applicant to acquire additional sites to avoid the wetland impacts of a proposed development.  The bill clarifies that for residential, agricultural and small business projects less than 2 acres, the assessment practicable alternatives can be limited to those located on the property owned by the applicant.

In addition, the bill made the following changes:

  • Streamlines the ability of municipalities to site and maintain stormwater ponds. In particular the bill provides an exemption from chapter 30 dredging permits for the dredging of existing stormwater ponds, clarifies that upland stormwater ponds can be maintained without a wetland permit and allows DNR to provide credit for on-line ponds in artificial waterways as a method for achieving compliance with DNR's prescribed performance standards for sources of nonpoint water pollution.
  • Clarifies the scope of activities constituting authorized repair and maintenance of an existing boathouse and clarifies the definition of a commercial boathouse.
  • Requires the DNR to issue general permits for the purposes of replacing an existing seawall if no permit was required at the time the seawall was built and restricting the conditions it applies to seawall replacements in ASNRIs only to those that do not prohibit its replacement.  These new exceptions to seawall replacement are in addition to those exceptions that existed under prior law. 
  • Requires the DNR to issue a general permit for construction on all permanent boat shelters, not just those constructed prior to May 3, 1988 as under current law, and limiting the DNR’s ability to impose restrictions on boat shelters.  Specifically, the DNR’s conditions may not govern the aesthetic features or color of boat shelters or the distance at which a boat shelter may extend from the shore, except to prohibit a boat shelter from extending beyond the line of navigation, and may not be based on the degree to which adjacent land is developed.

On balance, the Act represents a step towards restoring riparian property owners’ development expectations for their property, while at the same time maintaining the quality and character of the state’s waterbodies.  Restoring predictability and reasonability to DNR’s permitting process will also likely serve to limit litigation and, presumably, to reduce the significant permit backlogs DNR has incurred over the last several biennia. 

For questions, or more information about Act 387, contact Paul Kent at Stafford Rosenbaum.  

Policy Items Removed From Budget, Budget Committee Begins Its Work

Published by Liz Stephens on | Permalink

Although not required by law to do so, the Legislature’s non-partisan Legislative Fiscal Bureau (“LFB”) routinely responds to individual members’ requests to identify all of the non-fiscal policy items included in the biennial budget.  The LFB generally identifies these items as having no fiscal effect on the state budget or having policy implications that far exceed any potential fiscal effect.  This year, the LFB identified 49 such items included in the Governor’s 1,600 page budget document.  Among some of the more controversial non-fiscal policy items identified by the LFB include:

  • Converting the Natural Resources Board and the Board of Agriculture, Trade and Consumer Protection to an Advisory Council;
  • Allowing the Governor’s Administration greater control over the state building process by limiting the Building Commission’s opportunities to exercise oversight over changes to projects and cost-overruns;
  • Requiring counties – rather than municipalities – to administer property tax assessments;
  • Requiring disclosure on property tax bills of each taxpayer’s proportionate share of the debt service on bonds issued by the taxing jurisdiction; the amount of taxes levied for the maintenance and operation of each taxing jurisdiction; the amount of taxes levied on other miscellaneous charges; and
  • Eliminating numerous oversight and reporting requirements for the private School Choice program. 

The Wisconsin legislature’s Joint Finance Committee (“JFC”) is considered to be one of the most powerful committees in the country, in large part because of its members’ ability to shape the final budget product.  However, another, lesser-known reason for that distinction is that the Committee’s Co-Chairs are given the authority to unilaterally determine which items they consider policy, and then remove them from the budget without a single vote ever being taken. 

This year, the Co-Chairs determined that 14 of the 49 items identified by the LFB should be removed from the budget and drafted as separate legislation for consideration by the legislature as part of its regular process.  The items slated for removal by the Co-Chairs include some of the Governor’s most controversial proposals, including his proposals to:

  • Create Advisory Councils out of the DATCP and Natural Resources Board;
  • Remove oversight over state building projects from the Building Commission; and
  • Transfer property tax assessments from individual municipalities to counties.

The remaining 35 items identified by the LFB as non-fiscal policy items left in tact by the Co-Chairs will now be considered by the full JFC, despite Committee Democrats’ attempt to remove them during the Committee’s first executive session.  That attempt failed on a 12-4 party line vote.  Future attempts to remove individual policy items will likely meet a similar fate. 

That’s not to say all votes the Committee takes will be partisan ones, however.  On Wednesday, April 15th, the Committee’s opening day, 18 of their 22 votes to approve items were unanimous.  Although that record is due in large part to the lack of controversial items on the Committee’s agenda, there is something about the process that the JFC uses that makes it a more collegial committee than most. 

Still, major items loom large on future agendas.  And, although the leaders from both parties in the Senate seem to agree on the need to eliminate Governor Walker’s cut to K-12 education in the first year of biennium, there remains a major chasm between the leaders as to what the appropriate size of the investment should be.  Similar issues exist between the parties on what it means to preserve SeniorCare, the state’s successful prescription drug program for the elderly; whether the state’s community-based long-term care program is in need of restructuring; and, how to give the UW System flexibility while still maintaining affordability. 

To be sure, more bipartisan votes are on the way from this Committee.  But, at least in regard to the state’s major budget items, even the JFC isn’t immune from the incipient creep of partisan politics. 

Budget Hearings Conclude, JFC Set to Begin Voting…Maybe

Published by Liz Stephens on | Permalink

Every budget year, the legislature’s Joint Finance Committee and its non-partisan budget office, the Legislative Fiscal Bureau (“LFB”), must complete a number of routine – if not ministerial – tasks prior to taking a single vote on the budget bill.  Typically, those actions are bookended by the JFC receiving budget briefings from major agencies and cabinet-level departments, (held March 2, 3, and 4), and a series of public hearings on the budget bill, (held March 18, 20, 23 and 25).  In between, however, a number of other important actions are completed, including the LFB’s release of a budget summary, and numerous other reports detailing tax and fee modifications, the use of fund transfers, and a general fund condition statement.   

This budget cycle, that process was completed nearly three weeks ahead of schedule as compared to recent budgets, and is consistent with the Governor’s and Legislature’s stated desire to complete budget deliberations no later than June 31, 2015, if not earlier.  However, four key issues have emerged that could prevent an on-time budget for the first time since Scott Walker was elected Governor.  Those issues include:

  • K-12 funding and the expansion of the statewide school voucher program.
  • Spending and revenue-generating alternatives for the state’s transportation fund.
  • Cuts to the University of Wisconsin System.
  • State-local financial support for a new arena for the Milwaukee Bucks. 

Although July 1, 2015 marks the statutory deadline for adopting a new budget, there are only minor consequences if the legislature fails complete its work by that date.  Unlike the federal government, which shuts down if a new budget is not adopted by Congress, state government continues to operate on a cost-to-continue basis until a budget is signed into law.  With few exceptions, most state programs can operate on a cost-to-continue budget for many months before facing a funding crisis. One exception is the Medicaid program, a sum-sufficient appropriation, which requires the government fund all program expenditures on a routine basis.   Oftentimes, the Medicaid program faces programmatic increases in the hundreds of millions of dollars from one biennium to the next and, without the authority to implement cost-saving measures, the Department of Health Services can quickly find that it lacks the resources to pay its bills. 

Still, the smart money is on the passage of an on time budget.  Late budgets have become somewhat of an anomaly, with the last one occurring in 2009 when Democrats controlled the Senate and Republicans controlled the Assembly and a stalemate emerged.   Already, legislative leaders have hinted at plans to reduce the cut to the UW System (while scuttling the Governor’s proposal to give it greater independence); identified alternative funding mechanisms for the Milwaukee Bucks’ arena; and, pledged to increase K-12 spending with the new revenue likely to be revealed by the LFB’s revenue estimates to be released in May. 

Despite this progress towards resolving some of the budget’s major issues, however, this year doesn’t have quite the same feel as recent budgets that, by comparison, seemed to sail through the legislature.  Democrats and Republicans alike have indicated that some of the Governor’s cost-saving proposals – like scaling-back Senior Care and revamping Family Care – are all but dead.  It’s unclear whether the Senate and the Assembly share the same vision for K-12 spending, UW System or the Bucks.  There has been little progress towards a palatable solution to the transportation funding crisis.  And, while the LFB’s revenue estimates are likely to produce additional revenue, it’s not likely to produce a windfall as it did during the 2013-15 budget deliberations. This year’s revenue estimates are expected to be more in the order of saving a few programs slated for elimination than authorizing historic property tax cuts. 

The bottom line is that there’s a lot in this budget that both parties want to change.  While the budget deficit facing the state isn’t as severe as it has been in recent years, there are more programs on the table to be saved---and that costs money, money that is yet to materialize. So, while a number of the JFC’s statutorily required functions may be behind it, the real heavy lifting is yet to begin.  And this year, that may mean that there is some extra time before the first vote is ever taken.

Proposed Wisconsin Budget Provision Potentially Impacts Municipalities

Published by Susan Allen on | Permalink

As part of his 2015-17 biennial budget proposal Governor Scott Walker has recommended consolidating municipal (town, village and city) property tax assessment into a county wide assessment where, with limited exceptions for 1st and 2nd class cities, counties would administer the system.  The proposal would consolidate the state’s 1,851 taxing districts into a single assessment office in each of the state’s 72 counties.  In addition, the equalized value system of assessments would be eliminated in favor of annual full market value assessments.  Counties could charge municipalities up to 95% of the cost of performing assessments in 2015.  

To read the full post by Stafford's Government Relations Advisor, please click here.

Property Assessment Consolidation Proposal Raises Questions From Local Governments

Published by Liz Stephens on | Permalink

As part of his 2015-17 biennial budget proposal Governor Scott Walker has recommended consolidating municipal (town, village and city) property tax assessment into a county wide assessment where, with limited exceptions for 1st and 2nd class cities, counties would administer the system.  The proposal would consolidate the state’s 1,851 taxing districts into a single assessment office in each of the state’s 72 counties.  In addition, the equalized value system of assessments would be eliminated in favor of annual full market value assessments.  Counties could charge municipalities up to 95% of the cost of performing assessments in 2015. 

Although this proposal may represent a dramatic shift away from the current property tax assessment system, it is not a new concept, nor is it a partisan one.  In 2009, under former democratic Governor Jim Doyle, state revenue Secretary Roger Ervin floated a similar plan.  Ervin cited inequity between state and local equalized values; lack of uniformity across jurisdictions; and inefficient administration as rationale for making the shift.  Local government groups, especially the Wisconsin Towns Association, objected and cited as a primary concern their inability to control the costs of providing the service if it was moved to the county.  Ultimately, the proposal was not adopted.

Just as in 2009, local government groups are once again raising questions about the proposal.  Following is a brief summary of some of the concerns raised by each of the three major local government groups, including the Wisconsin Counties Association, the League of Municipalities and the Wisconsin Towns Association as well as individual counties and municipalities.

Wisconsin Counties Association:

  • The proposal represents a new mandate.
  • The 2017 implementation date is not feasible. 
  • The funding mechanism is inadequate. 
  • Click here for the WCA release. 

League of Municipalities:

  • The 2017 implementation date is too ambitious. 
  • The cost of the county assessment should not be part of the municipal levy.
  • The cost of assessing all parcels at full market value is more expensive than the current system. 
  • Payments to counties from municipalities for the costs of assessments will be inequitable. 
  • The opt out provision should be more flexible. 
  • The provision could interfere with the long-term contracts between some municipalities and private assessors. 
  • Click here for the LWM release.

Wisconsin Towns Association:

  • The proposal erodes local control. 
  • Full market value assessments are more expensive than equalized value assessments for taxpayers and municipalities. 
  • The proposal reduces competition in the marketplace. 
  • Click here for the WTA release. 

According to Rick Chandler, the state’s current revenue secretary, the proposal would generate cost savings at the state and local level and result in improved quality of property assessments.  Now, it is up to the Legislature to decide whether the alleged benefits outweigh the concerns raised by local governments.  

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