Nankin v. Village of Shorewood

• Decision Date: 06 July 2001
• Docket Number: No. 99-1058.,99-1058.
• Citation: 245 Wis.2d 86,630 N.W.2d 141,2001 WI 92
• Parties: Armin NANKIN, Trustee of the Gertrude H. Weiss Revocable Trust, Plaintiff-Appellant-Petitioner, v. VILLAGE OF SHOREWOOD, Defendant-Respondent.
• Court: Wisconsin Supreme Court

245 Wis.2d 86

2001 WI 92

630 N.W.2d 141

Armin NANKIN, Trustee of the Gertrude H. Weiss Revocable Trust, Plaintiff-Appellant-Petitioner, v. VILLAGE OF SHOREWOOD, Defendant-Respondent.

No. 99-1058.

Supreme Court of Wisconsin.

Oral argument March 6, 2001.

Decided July 6, 2001.

For the plaintiff-appellant-petitioner there were briefs by Alan Marcuvitz, Robert L. Gordon and Weiss, Berzowski, Brady & Donahue, LLP, Milwaukee, and oral argument by Robert Gordon and Alan Marcuvitz.

For the defendant-respondent there was a brief by Raymond J. Pollen, Deborah S.R. Hoffmann and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, and oral argument by Raymond Pollen.

An amicus curiae brief was filed by Gregg C. Hagopian, assistant city attorney, on behalf of the City Attorney for the City of Milwaukee, the Wisconsin Association of Assessing Officers, the South Eastern Wisconsin Association of Assessing Officers, and the Intergovernmental Cooperation Council of Milwaukee County, and oral argument by Gregg Hagopian.

¶ 1. WILLIAM A. BABLITCH, J.

Armin Nankin (Nankin) seeks review of a court of appeals' decision that upheld the constitutionality of Wis. Stat. § 74.37(6) (1997-98).¹ This section operates to allow owners of property located in counties with a population of less than 500,000 to challenge a property assessment with a full trial in the circuit court; those with a population of 500,000 or more (populous counties) are not allowed a full trial "de novo" in the circuit court. Nankin contends that the statute is unconstitutional because it violates the constitutional guarantee of equal protection of the law, that is, it treats owners of property located in populous counties differently than owners of property located in other counties without a rational basis. We agree. We also conclude that § 74.37(6) is severable from the remainder of the statute. Accordingly, we reverse the determination made by the court of appeals and grant Nankin's motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts are undisputed. Nankin is trustee of a trust that owns a parcel of real property in the Village of Shorewood (Village) in Milwaukee County. On May 9, 1998, Nankin filed a written objection to the village assessor's 1998 assessment of the property. On May 11, 1998, the Village of Shorewood Board of Review (Board) conducted a hearing on this objection. At the conclusion of the hearing, the Board voted to sustain the assessment of the village assessor.

¶ 3. Pursuant to statute, once on a board of review renders its decision, appeal from the decision may be accomplished in one of three ways.² First, an owner can appeal from the board's determination by an action for certiorari to the circuit court under Wis. Stat. § 70.47(13). Second, pursuant to Wis. Stat. § 70.85, a property owner may submit a written complaint with the department of revenue requesting that the department revalue the property. § 70.85(1), (4)(b). The department's decision may then be appealed through an action for certiorari in the county in which the property is located. § 70.85(4)(c). Third and finally, after paying the tax on the assessment, a property owner may proceed under Wis. Stat. § 74.37 with a claim for an excessive assessment against the taxation district³ or the county, depending on which entity collected the tax. § 74.37(1), (2)(a), (4)(b). Such claims seek "to recover that amount of general property tax imposed because the assessment of property was excessive." § 74.37(1). If this claim is denied, the aggrieved property owner may then commence an action in the circuit court to recover the amount of the claim not allowed. § 74.37(3)(d).

¶ 4. Because of Wis. Stat. § 74.37(6), however, Nankin was prohibited from pursuing this final option. This subsection provides that § 74.37 "does not apply in counties with a population of 500,000 or more." In this case, because the trust property was located in the Village of Shorewood in Milwaukee County, a county that had a population of 500,000 or more, Nankin could not file a claim under § 74.37. ¶ 5. On June 15, 1998, Nankin filed a declaratory judgment action in the circuit court, seeking a declaration that Wis. Stat. § 74.37(6) was unconstitutional. In particular, he alleged that this statute violated (1) Article I, Section 1 of the Wisconsin Constitution and the Fourteenth Amendment of the United States Constitution, both of which guarantee equal protection under the law; (2) Article IV, Section 31(6) of the Wisconsin Constitution, which prohibits the enactment of special or private laws regarding the assessment or collection of taxes; and (3) Article VIII, Section 1 of the Wisconsin Constitution, which mandates that the rule of taxation shall be uniform. Nankin also sought a declaration from the court that § 74.37(6) was severable from the remainder of the statute; a permanent injunction prohibiting the defendant from asserting § 74.37(6) as a defense to any claim filed by Nankin regarding the 1998 assessment of property; and costs incurred, including reasonable attorney fees.

¶ 6. With respect to his equal protection claim, Nankin argued that the statute was unconstitutional because it legislated disparate treatment for persons who own property in municipalities in counties with a population of 500,000 or more and persons who own property in municipalities in other counties. Persons owning property in populous counties, Nankin argued, could ultimately only receive certiorari review of their property assessments in the circuit court, either under Wis. Stat. § 70.47(13) or Wis. Stat. § 70.85(4)(c). In contrast, persons owning property in other counties could receive de novo review in the circuit court by pursuing an action under Wis. Stat. § 74.37(3)(d). Nankin contended that there was no rational basis for this disparate treatment of property owners in assessment appeal options based solely on the population of the county in which the property is situated.

¶ 7. Nankin filed a motion for summary judgment. This motion included a claim that Wis. Stat. § 74.37(6) also violated Article IV, Section 18 of the Wisconsin Constitution. This constitutional provision limits the legislature from passing laws that have only limited application.

¶ 8. The Milwaukee County Circuit Court, the Honorable Diane S. Sykes, denied Nankin's motion and his request for declaratory relief, concluding that he failed to carry his burden of proving the statute unconstitutional beyond a reasonable doubt. With respect to Nankin's equal protection claim, the court determined that this question had been resolved in S.C. Johnson & Son, Inc. v. Town of Caledonia, 206 Wis. 2d 292, 557 N.W.2d 412 (Ct. App. 1996). The court followed this precedent and opined that it was reasonable for the legislature to exempt populous counties from this type of review based on the conclusion that de novo review of municipal board of review decisions in the circuit court would be unworkable in such counties. Certiorari review, the court noted, still provided a meaningful opportunity for judicial correction of municipal tax assessment errors, even though this review was far narrower than de novo review. The court also rejected Nankin's other constitutional claims and denied costs to Nankin.

¶ 9. The court of appeals, in a per curiam decision, affirmed the circuit court's decision. We accepted review to determine whether Wis. Stat. § 74.37(6) violated one or more of the following state constitutional provisions: (1) Article I, Section 1; (2) Article IV, Section 31(6); or (3) Article IV, Section 18.⁴ Because we conclude that this statutory section violates Article I, Section 1, we will not review Nankin's other arguments. Our analysis also reveals that § 74.37(6) may be severed from the remainder of the statute.

STANDARD OF REVIEW

[1-4]

¶ 10. A challenge to the constitutionality of a statute presents a question of law that we review under a de novo standard of review. Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 613 N.W.2d 849. We presume that the statute is constitutional and indulge "every presumption to sustain the law if at all possible. . . ." Id. The burden is on the party challenging the statute to prove that the statute is unconstitutional beyond a reasonable doubt. Id. at ¶ 19. Any doubt must be resolved in favor of the constitutionality of the statute. Id. at ¶ 18.

EQUAL PROTECTION

[5-8]

¶ 11. Nankin challenges the constitutionality of Wis. Stat. § 74.37(6) on equal protection grounds.⁵ To prevail, he must show that the statute unconstitutionally treats members of similarly situated classes differently. Aicher, 2000 WI 98 at ¶ 56. In cases, like here, where the statutory classification does not involve a suspect class or a fundamental interest, we will sustain the classification if there exists any rational basis to support it. Milwaukee Brewers v. DHSS, 130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986). A statute violates equal protection only when "the legislature has made an irrational or arbitrary classification, one that has no reasonable purpose or relationship to the facts or a proper state policy." Id. at 99. Any doubts must be resolved in favor of the reasonableness of the classification. State v. Hezzie R., 219 Wis. 2d 848, 894, 580 N.W.2d 660 (1998).

[9, 10]

¶ 12. "`The fact [that] a statutory classification results in some inequity. . .does not provide sufficient grounds for invalidating a legislative enactment.'" Id. at 893-94 (quoting State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654 (1989)). Indeed, "`[e]qual protection does not deny a state the power to treat persons within its jurisdiction differently. . . .'" Id. at 983 (quoting McManus, 152 Wis. 2d at 131). However, "[t]he basic test is not whether some inequality results from the classification but whether there exists a rational basis to justify the inequality of the classification." Milwaukee Brewers, 130 Wis....