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Justices grill lawyers in property tax assessment case

The Wisconsin Supreme Court on Thursday heard oral arguments in the case of Milewski v. Town of Dover, in which the justices are weighing in on matters such as whether an in-home inspection for tax purposes constitutes a warrantless search prohibited by the Fourth Amendment.

The case stems from a dispute between the town of Dover and two residents, Vincent Milewski and Morganne MacDonald. The couple sued in 2013 after they had been banned from challenging a tax assessment on their home following their refusal to let an appraiser inside.

Town of Dover officials responded by pointing to two statutes that, when read together, suggest that homeowners cannot challenge assessments after refusing to let an appraiser view the interior of their homes.

In this dispute, the couple is being represented by the Wisconsin Institute for Law and Liberty, a conservative-leaning organization whose stated mission is to defend property, First Amendment and religious rights. Appealing two lower-court decisions, the couple is arguing that in-home inspections constitute warrantless searches and that their due-process rights have been violated.

The justices peppered the parties’ attorneys with questions on Thursday, pushing them on a host of matters. Arguing on behalf of Milewski and McDonald was Rick Esenberg, president and general counsel of WILL. Jason Gehring and Timothy Barber represented Gardiner Appraisal Services LLC.

Solicitor General Misha Tseytlin also appeared Thursday to represent state Attorney General Brad Schimel, who is given a say when a law’s constitutionality is in doubt. In this particular case, the state has chosen not to take a position on constitutional questions. It is advising the justices, though, that a statute dating to 2009 suggests that one of the statutes in question has been implicitly repealed.

Justice Michael Gableman noted that citizens give up their Fourth Amendment right to protection against warrantless searches when they enter certain places such as airports or military bases.

“How is this different from the analogous situations I offered?” he asked. “How would your position square with (the idea) that when they purchased the home, they knew it would be subject to those assessments?”

Justice Shirley Abrahamson probed the attorney representing Milewski and MacDonald about the couple’s claim that they had been deprived of due process simply because they had exercised their right to privacy.

She asked Esenberg to think of similar situations in the law, particularly in personal-injury cases. Abrahamson gave the example of plaintiffs who are barred from going forward with lawsuits after refusing to disclose medical records.

“There was no entry of the home here, right?” Abrahamson said. “So we’re really concerned that because there was no entry of the home, the statute says the homeowner cannot object to the assessment, right? Now we have a number of situations in the law, if a party does not report evidence or allow the other side to take evidence, you bar that party, right?”

Justice Annette Ziegler and Chief Justice Pat Roggensack pressed Gehring to explain why, in the town’s view, the laws do not deprive the couple of due process.

“That’s what we want you to focus on,” said Roggensack.

“If I decided I don’t want to let you in and if you decided that everyone except me is taxed $10,000 and my tax is $1 million, I can’t challenge that at all?” Ziegler asked.

“Is there any way the assessment can be challenged in this case?” asked Roggensack.

Justice Dan Kelly noted that suing the appraiser or assessor is an intentional tort and not a property-tax challenge.

Roggensack and Justice Rebecca Bradley also pressed Barber on why an in-person inspection of the home was necessary.

“What about modern technology?” Bradley said. “They could have offered to FaceTime with the assessor. … Why can’t that modern technology count as a view of the interior of the home?”


About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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