High court to grill parties in lawsuit over in-home inspections for property tax assessments

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Before becoming a mediator, Morganne MacDonald had spent more than two decades as a family law practitioner advocating for children and others who typically have no voice in the legal system.

The work, she says, was satisfying in large part because she could give her clients a means of being heard.

Now she is afraid her voice will be silenced as she and her husband, Vincent Milewski, try to question a tax assessment placed in 2013 on their house in the town of Dover in Racine County. Town officials have responded to the couple’s suit not only by defending the assessment but by also arguing the couple had no right to mount a challenge in the first place.

In making that case, local officials are citing a state law that prohibits property owners from challenging assessments after they’ve denied an appraiser access to the interior of their property. That’s exactly what happened in 2013 when the couple refused to let a representative of Mineral Point-based Gardiner Appraisal Services enter their house.

MacDonald told the appraiser he was welcome to enter their yard and view the property from the outside, but not to come in.

“They have no right to know if I have a china chest and what’s in it, what kind of teas I have, how many computers I have,” MacDonald said. “None of that has any bearing on the taxation for my home. And the first thing you should do is ask me. Why not ask me?”

MacDonald and Milewski had been told before that such a refusal would forfeit their right to challenge an assessment. This time, though, they decided to stand their ground.

And they’ve had help.

The Wisconsin Institute of Law and Liberty, a conservative-leaning organization dedicated to defending property, First Amendment and religious rights, has defended the couple as their case has wound its way through the court system.

It’s a journey that has so far brought them no success. Racine County Circuit Court Judge Phillip Koss sided with the town and the appraisal company last year, dismissing the couple’s case. Their first attempt at an appeal was also for naught.

Despite the setbacks, the couple’s hopes are not extinguished. The Wisconsin Supreme Court agreed in October to take up the case.

Oral arguments are now scheduled for Jan. 19. The justices have received three requests so far to file amicus briefs and accepted two of them.

The case’s fundamental question concerns basic rights. When homeowners are prevented by state law from challenging tax assessments because they have told an assessor that their house is off limits, are they being unconstitutionally punished for exercising their right to privacy?

The justices are also expected to weigh in on the question of whether requiring an interior inspection of a home for a property tax assessment would be conducting the sort of warrantless search that is prohibited by the Fourth Amendment.

Both the town of Dover and Gardiner are arguing that inspections in those circumstances are reasonable because they further a compelling government interest and come as part of long-standing state procedures. They are also contending that because MacDonald and Milewski were allowed to turn away the appraiser and exercise their right to privacy, they were not deprived of due process. That’s true even if that decision subsequently prevents them from challenging their property’s assessment.

Critics of those arguments contend that property owners are in danger of losing one of their few defenses against overvaluations. Anthony Nudo, a Kenosha realtor and vice president of the Wisconsin Realtors Association, said there is a simple remedy: presume assessors are correct, and then make owners who disagree responsible for producing evidence and facts that prove the contrary.

“This will allow the assessor to do his job while still protecting the property owners’ rights to privacy and due process,” he said.

Tom Kamenick, deputy counsel at the Wisconsin Institute for Law and Liberty, noted that assessors and appraisers are not required by law to view a property’s interior, only the exterior. When an owner refuses entry, the law provides at least two means of recourse. Assessment workers can both ask questions concerning a property’s interior and draw on information listed on building permits.

MacDonald and Milewski’s case concerns not only the state law preventing property owners from appealing assessments after they have denied an assessor access to their property. They are also questioning the town’s application of a statute that prevents a property owner from challenging an assessment in a state court if there wasn’t first an appeal to the local Board of Review.

Nudo said the two statutes force property owners to choose between constitutional rights: the right to privacy or the right to due process.

“Fundamentally, that’s a problem,” he said. “I think everyone agrees that the tax assessor, no matter how unloved, has a job to do. However, his job should not come at the expense of a property owner abating her rights.”

Even so, Kamenick said that victory before the high court would not be the end of the road for the couple. The case would merely go back to the trial court, where the judge could still find that the original assessment was correct.

“In the end it could be a net win of zero dollars,” Kamenick said. “But we’re fighting for the process of allowing us to challenge it.” Follow @erikastrebel