Home owners don’t have to let assessors in to challenge tax value (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A Wisconsin law that requires homeowners to let assessors inside as a condition of challenging their property taxes is unconstitutional as applied to a pair of Racine County property owners, the state Supreme Court ruled on Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can’t obtain the homeowners’ consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the town of Dover in Racine County. According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn’t let an assessor inside their home. Under state law, people who refuse an assessor’s request to view their property can’t contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors’ visit without consent is a search as defined in the U.S. Constitution’s Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn’t apply, which means assessors must obtain search warrants to enter without consent, he wrote. Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law was unconstitutionally applied to Milewski and MacDonald’s situation. But he said the law isn’t unconstitutional on its face, holding only that it can’t be read to require a viewing that violates the Fourth Amendment.

The town’s attorney, Jason Gehring, didn’t immediately respond to a voicemail seeking comment.

The court’s conservative-leaning majority reached the decision. Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate — even though her dissent goes on for 47 pages compared with Kelly’s 53 pages — and doesn’t say what should happen next.

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.