Jackson County v. State, D.N.R.

Decision Date11 July 2006
Docket NumberNo. 2005AP545.,No. 2004AP2582.,2004AP2582.,2005AP545.
Citation717 N.W.2d 713,2006 WI 96
PartiesJACKSON COUNTY, Plaintiff-Appellant, v. STATE of Wisconsin DEPARTMENT OF NATURAL RESOURCES, Jackson County Sanitary Landfill, Inc. and Thomas McNulty, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiff-appellant, there were briefs by Brian E. Butler, Richard C. Yde, Daniel P. Gustafson, and Stafford Rosenbaum LLP, Madison, and oral argument by Brian E. Butler.

For the defendant-respondent State of Wisconsin Department of Natural Resources, the cause was argued by Thomas J. Dawson, Assistant Attorney General, with whom on the briefs (in the court of appeals) was Peggy A. Lautenschlager.

For the defendants-respondents Jackson County Sanitary Landfill, Inc., and Thomas McNulty, there was a brief by Eric M. McLeod, Roisin H. Bell, and Michael Best & Friedrich LLP, Madison, and oral argument by Eric M. McLeod.


This case comes to us on certification from the court of appeals. We have accepted the certification and decide only one issue: whether Jackson County (County) can rescind the County's tax deed that transferred ownership of property containing a landfill to the County, thereby unilaterally returning ownership to the prior owner, Jackson County Sanitary Landfill (JCSL), without the prior owner's consent. We conclude that the County lawfully issued the tax deed. We also conclude that when the County accepted the tax deed, all property rights vested in fee simple in the County. Because the County has no statutory authority to rescind a tax deed that was lawfully issued and thereby unilaterally impose property ownership on a third party, its attempted rescission has no effect on ownership of the property containing the landfill. Therefore, we affirm the circuit court's conclusion in that regard, and, as suggested in the certification,1 we remand to the court of appeals to decide the remaining issues this case presents.


¶ 2 The relevant facts are undisputed. JCSL owned and operated a landfill in Jackson County. JCSL was licensed by the Department of Natural Resources (DNR) to operate a solid waste facility. The DNR's plan for the care of the landfill included the establishment of an escrow account into which JCSL made payments for the long-term care and maintenance of the landfill.

¶ 3 In 1998, JCSL stopped paying real estate taxes on the property that contains the landfill. In June of 2000, the landfill reached its authorized capacity and JCSL began closure. The County pursued tax delinquency proceedings against JCSL by issuing a tax certificate for unpaid taxes on the property. Because JCSL continued in its nonpayment of real estate taxes and did not redeem the tax certificate, in 2002 the county clerk issued a tax deed to the County. The County accepted, recorded and re-recorded the tax deed. Therefore, pursuant to Wis. Stat. § 75.14(1) (2001-02), the County's actions had certain legal consequences.2

¶ 4 Wisconsin Statute § 75.14(1) states:

If any land subject to a tax certificate shall not be redeemed the county clerk shall, after the expiration of time prescribed by law for the redemption thereof, on presentation of the tax certificate and proof of service of notice, execute in the name of the state and of the county, as such officer thereof, under the clerk's hand and the seal of the county, to the county and its assigns, a deed of the land so remaining unredeemed, and shall acknowledge the same which shall vest in the county an absolute estate in fee simple in such land subject, however, to recorded restrictions and redemption as provided in this chapter; and such deed duly witnessed and acknowledged shall be presumptive evidence of the regularity of all the proceedings, from the valuation of the land by the assessor up to and including the execution of the deed, and may be recorded with the like effect as other conveyances of land. No deed may be issued under this section until the county board, by resolution, orders issuance of the deed.

¶5 In September and October of 2003, the County's board of supervisors resolved to rescind the tax deed, having realized that the responsibilities associated with the landfill could place a financial burden on the County. Resolution 50-9-03 provides:

RE: Rescind Tax Delinquency Action

Whereas, a tax deed of certain property ("Property") which has tax parcel number 010-0717.0000, and which is described in the attached description, was recorded in the office of the Jackson County Register of Deeds in Volume 415 at page 839 as document number 311612, and a correction deed was recorded in Volume 416 at page 216 as document number 311730, and a correction affidavit was recorded in Volume 423 at page 825 as document number 314134; and

Whereas, the actions taken to authorize and record the tax deed were inadvertent, improvident and contrary to the public interest;

Therefore, be it RESOLVED by the Jackson County Board of Supervisors and by the County Tax Deed and Land Committee as follows:

1. All actions taken to authorize the tax deed of the Property are rescinded.

2. The tax deed, correction deed and affidavit of correction recorded in volume 415 at page 839 as document number 311612, in volume 416 at page 216 as document number 311730, and in volume 423 at page 825 as document number 314134 are declared null, void and of no effect. Jackson County has no right, title or interest in or to the Property as a result of the tax deed, correction deed and affidavit of correction.

3. The County Clerk is authorized and directed to record a certified copy of this Resolution in the office of the Jackson County Register of Deeds.

Notwithstanding the County's resolution, JCSL continued to claim the County owned the landfill and was responsible for its care, maintenance and any subsequent liability. As a result, the County filed a declaratory judgment action in the Dane County Circuit Court.

¶6 In its complaint, the County alleged that it is inequitable to permit JCSL to escape its obligations for the landfill by refusing to pay taxes.3 The County asked the court to declare that the County is not and never has been the owner of the landfill and that the County has no responsibility for the landfill under Wis. Stat. chs. 289 and 292, which address solid waste facilities and remedial action for such facilities. The County asserted that it was never involved in the operation of the landfill and received no financial benefit from its operation. It claimed that the clerk had mistakenly issued the tax deed without considering the nature of the property and had done so without authorization from the county board contrary to Wis. Stat. § 75.14. It contended that the county board of supervisors' resolution rescinding the tax deed had properly nullified County ownership of the property.4 As an alternative, the County asked the circuit court to rule that even if it owns the property, it is not responsible for the long-term maintenance of the landfill because Wis. Stat. § 292.11(9)(e)1m.a. exempts the County from such liability. The County moved for summary judgment.

¶ 7 The circuit court granted summary judgment to the defendants, JCSL and the DNR. It concluded: (1) Pursuant to Hayes v. Adams County, 15 Wis.2d 574, 581, 113 N.W.2d 407 (1962),5 the county clerk had continuing authority as established by the county board to issue tax deeds; (2) there was no express or implied repeal of that authority; (3) the tax deed issued for the property is valid; (4) the county board has no authority to rescind the tax deed; (5) the County owns the property; and (6) to grant the County the relief it requests would be inequitable. It also dismissed the remainder of the County's claims.6 The County filed a motion for reconsideration, which the circuit court denied.

¶ 8 The County appealed, arguing that it had the authority to rescind the tax deed, under the broad statutory authority granted by Wis. Stat. § 59.03(1), which the County claims allows it to "exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature." The County's position is that absent a statute barring its rescission of the tax deed, its actions resulted in effective rescission.

¶ 9 The court of appeals certified the issue of whether "a county, after taking a tax deed to assume ownership of property on which taxes had not been paid, may rescind the tax deed and return the property to the original owner, without that owner's consent." We address only the certified question.

A. Standard of Review

¶ 10 This case requires us to interpret and to apply statutes to undisputed facts. The interpretation of statutes and their application to facts are questions of law, subject to our independent review. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673 (1985). However, we benefit from the analysis of the previous court's decision. State v. Cole, 2003 WI 59, ¶12, 262 Wis.2d 167, 663 N.W.2d 700.

B. Summary Judgment Principles

¶ 11 The certified question formed the basis for the circuit court's order granting summary judgment that dismissed the County's request for declaratory judgment in its favor. Every decision on a motion for summary judgment begins with a review of the complaint to determine whether, on its face, it states a claim for relief. Westphal v. Farmers Ins. Exch., 2003 WI App 170, ¶9, 266 Wis.2d 569, 669 N.W.2d 166. If it does, we examine the answer to see if issues of fact or law have been joined. Id. After we have concluded that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. When they do so, we review the opposing party's affidavits to determine whether there are material facts...

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