Joyce v. Town of Tainter, No. 99-0324

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Cane, C.J., Hoover, P.J., and Peterson, J.
• Citation: 2000 WI App 15,232 Wis.2d 349,606 N.W.2d 284
• Parties: IN RE the TAX ASSESSMENT OF the PROPERTY OF: Karen M. JOYCE, Petitioner-Appellant, Thomas F. ANDERSON, James G. Carnitz, Gaylin and Nancy Myran, Sigurd and Sally Olson, Ron and Luanne Prochnow, David and Patricia Reisinger, Frederich and Susan Searing, Stephen and Lyndat Swanson, William Taylor, Richard and Billie Walleen, and Zeithaml Trust, Petitioners, v. TOWN OF TAINTER, Respondent-Respondent. IN RE the TAX ASSESSMENT OF the PROPERTY OF: Karen M. JOYCE, Petitioner-Appellant, v. TOWN OF TAINTER, Respondent-Respondent.
• Docket Number: No. 99-0324, No. 99-1421.
• Decision Date: 21 December 1999

232 Wis.2d 349
2000 WI App 15
606 N.W.2d 284

IN RE the TAX ASSESSMENT OF the PROPERTY OF:
Karen M. JOYCE, Petitioner-Appellant,
Thomas F. ANDERSON, James G. Carnitz, Gaylin and Nancy Myran, Sigurd and Sally Olson, Ron and Luanne Prochnow, David and Patricia Reisinger, Frederich and Susan Searing, Stephen and Lyndat Swanson, William Taylor, Richard and Billie Walleen, and Zeithaml Trust, Petitioners,
v.
TOWN OF TAINTER, Respondent-Respondent.
IN RE the TAX ASSESSMENT OF the PROPERTY OF:
Karen M. JOYCE, Petitioner-Appellant,
v.
TOWN OF TAINTER, Respondent-Respondent

Nos. 99-0324, 99-1421.

Court of Appeals of Wisconsin.

Submitted on briefs November 18, 1999.

Decided December 21, 1999.

232 Wis.2d 352

On behalf of the petitioner-appellant, the cause was submitted on the briefs of John E. Joyce, Menomonie

On behalf of the respondent-respondent, the cause was submitted on the briefs of William R. Lamb of Doar, Drill & Skow, S.C., Baldwin.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. PETERSON, J.

Karen Joyce claims that her property assessments are invalid because the Tainter Town Board (the town board) did not have authority to appoint its assessor, and the Town's board of review (the board) improperly approved her properties' assessments because its assessor did not consider sales of comparable property. On review, the circuit court found no error in the board's decision. We affirm because: (1) the assessor acted as a de facto public officer, even if the assessor was not appointed correctly; and (2) a reasonable view of the evidence before the board indicates that the assessor did consider comparable sales.

¶ 2. The town board appointed Ronald Meyer as its assessor for three-year terms in 1993 and 1996. Joyce objected to her property's 1997 assessment. After a hearing in September of that year, the board of review approved Meyer's assessment and, in December, Joyce sought certiorari review in the circuit court pursuant to § 70.47(13), STATS. In June of 1998, Joyce

232 Wis.2d 353

filed a similar objection to her property's 1998 assessment. After another hearing, the board also approved Meyer's 1998 assessment. Joyce subsequently filed a corresponding petition for review in the circuit court

¶ 3. The circuit court denied both of Joyce's petitions. The court interpreted the minutes from a September 1976 town meeting as granting authority to the town board to hire an assessor. The court also concluded that Meyer did not make his assessments contrary to law because he considered comparable sales in his valuations. This appeal followed.¹

Certiorari Review

[1, 2]

¶ 4. We review the board of review's decision independently from the circuit court's conclusions. See State ex rel. Brighton Sq. Co. v. City of Madison, 178 Wis. 2d 577, 584, 504 N.W.2d 436, 439 (Ct. App. 1993). Our review is limited to considering only whether: (1) the board "kept within its jurisdiction"; (2) the board "acted according to law"; (3) the action taken by the board "was arbitrary, oppressive or unreasonable" so as to represent "its will and not its judgment"; and (4) the evidence before the board was such "that it might reasonably" sustain the assessments. Rite-Hite Corp. v. Board of Review, 216 Wis. 2d 189, 192, 575 N.W.2d 721, 724 (Ct. App. 1997).

I. ASSESSOR APPOINTMENT

¶ 5. Joyce first claims that the board of review improperly approved Meyer's assessments because the town board did not have authority to hire an assessor.

232 Wis.2d 354

Therefore, we must review whether the board of review ultimately acted according to law. See id. Under the de facto officer doctrine, we conclude that the board appropriately approved Meyer's assessments.²

¶ 6. Section 60.10(2)(j), STATS., grants a town meeting power to adopt a resolution authorizing the town board to appoint assessors.³ Joyce contends that the Town never adopted an appropriate resolution and, therefore, the town board was without power to appoint Meyer. We conclude, however, that Meyer's assessments are entitled legal effect, even if Joyce is correct, because Meyer acted as a de facto officer. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938).

[3]

¶ 7. "As a general rule, all that is required to make an officer de facto is that the individual claiming

232 Wis.2d 355

the office be in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment." Pamanet v. State, 49 Wis. 2d 501, 507 n.11, 182 N.W.2d 459, 464 n.11 (1971) (quoted source omitted). Joyce concedes that Meyer meets the definition of a de facto officer

[4]

¶ 8. Our supreme court has recognized that "the acts of a de facto officer are valid as to the public and third parties and cannot be attacked collaterally." See Walberg v. State, 73 Wis. 2d 448, 463-64, 243 N.W.2d 190, 198 (1976). The de facto officer's acts "are binding and valid until the individual is ousted from his office by the judgment of a court in a direct proceeding to try his title to the office."⁴ Id.; see also Moses v. Board of Veterans Affairs, 80 Wis. 2d 411, 418, 259 N.W.2d 102, 105 (1977).

¶ 9. In Walberg, two prisoners challenged their convictions on the basis that the court commissioner had no authority to issue their arrest warrants because the commissioner's term had expired at the time the arrest warrants were issued. See id. at 452, 243 N.W.2d at 193. The court reasoned that the record clearly indicated the commissioner "was purporting to act as a duly appointed court commissioner" and "[i]t is undisputed

232 Wis.2d 356

that court commissioners have the authority to issue arrest warrants." Id. at 464, 243 N.W.2d at 198. The court concluded that the commissioner's "actions in issuing the arrest warrants were supported by the color of authority attaching to his de facto status as a court commissioner." Id. Accordingly, the court rejected the prisoner's collateral attack upon the commissioner's authority.⁵

¶ 10. Joyce claims that the de facto officer doctrine does not apply in this case. She relies on ABC Realty Corp. v. Bissonnette, 274 A.2d 694, 696 (Vt. 1971), for the proposition that a taxing authority may not rely on the doctrine to validate taxes against a taxpayer. We are not persuaded by Vermont's exception, however.

¶ 11. No Wisconsin case has recognized a "taxpayer" exception to the de facto officer doctrine. Joyce does not advance any policy reasons that would justify creating an exception to the same doctrine that Wisconsin courts have employed to validate such official acts such as issuing arrest warrants. See Walberg, 73 Wis. 2d at 463-64, 243 N.W.2d at 198.

¶ 12. Joyce also contends that she can challenge Meyer's assessment because she is not a member of the public or a third party. She cites Lincoln St., Inc. v. Town of Springfield, 615 A.2d 1028, 1031 (Vt. 1992), as support for her contention that she is not a member of the public, and Uhrig v. Regan, 623 F.Supp. 968, 971 (D. Md. 1985), as support for her claim that she is not a

232 Wis.2d 357

third party. Neither case discusses these terms in context of the de facto officer doctrine, however. Both cases consider the terms under case-specific statutory schemes where the terms are completely out of context with the considerations here. Further, at least one other state has applied the doctrine to validate assessments. See Fisher v. Golden Valley Bd. of County Comm'rs, 226 N.W.2d 636, 640, 642-43 (N.D. 1975) (failure to provide a proper election of assessor or appoint a statutorily qualified assessor, and failure to follow other statutory requirements, did not invalidate assessments because the assessor acted in a de facto capacity).⁶

[5]

¶ 13. We conclude that the de facto officer doctrine seeks to avoid precisely the kind of public distraction that would occur in this case if Joyce's challenge were permitted. Joyce concedes that Meyer qualified under the definition of a de facto officer. Accordingly, we conclude that Joyce may not challenge the legality of her property's assessments collaterally, meaning that she may not challenge the assessments by only targeting the legality of Meyer's...