S.C. Johnson & Son, Inc. v. Town of Caledonia, 95-2700
| Decision Date | 23 October 1996 |
| Docket Number | No. 95-2700,95-2700 |
| Citation | 557 N.W.2d 412,206 Wis.2d 292 |
| Court | Wisconsin Court of Appeals |
| Parties | S.C. JOHNSON & SON, INC., Plaintiff-Respondent, v. TOWN OF CALEDONIA, a Wisconsin municipality, Defendant-Appellant. d ]]]] |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Alan Macuvitz and Robert L. Gordon of Weiss, Berzowski, Brady & Donahue of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy C. Frautschi of Foley & Lardner of Milwaukee.
An amicus curiae brief on behalf of the League of Wisconsin Municipalities was filed by Curtis A. Witynski of Madison.
Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.
The issue on appeal is whether a property owner may challenge a real estate property tax assessment by commencing a de novo action in the circuit court pursuant to § 74.37(3)(d), STATS. Rejecting the Town of Caledonia's argument that the property owner, S.C. Johnson & Son, Inc., was limited to a certiorari review proceeding pursuant to § 70.47(13), STATS., the circuit court held that a de novo action was permitted.
The circuit court also rejected the Town's alternative argument that the de novo procedure violated the uniformity of taxation clause of the Wisconsin Constitution, art. VIII, § 1. On this issue, the court ruled that the Town did not have standing to raise the constitutionality argument. Alternatively, the court ruled that the de novo procedure did not violate the uniformity clause.
We have previously granted the Town's petition for leave to appeal the circuit court's nonfinal order. We uphold all of the court's rulings. We remand for further proceedings on Johnson's complaint.
Johnson owns property in the Town of Caledonia, Racine County. Johnson challenged the Town's 1994 assessment of its property. The Board of Review rejected Johnson's challenge and sustained the assessment. Johnson then paid the disputed assessment and filed a claim with the Town pursuant to § 74.37(2), STATS., for a refund of the challenged portion of the tax. The Town denied the claim.
Johnson then filed the instant action in the circuit court. However, Johnson did not seek the usual form of certiorari judicial review pursuant to § 70.47(13), STATS. Instead, Johnson commenced a conventional civil action by serving and filing a summons and complaint against the Town. Johnson alleged that the Town had imposed an excessive tax and seeks a refund of the disputed portion of the tax. Johnson claims that it is entitled to a full trial de novo pursuant to § 74.37(3)(d), STATS. The Town challenged this procedure and asked the trial court to construe Johnson's action as a certiorari action limited to a review of the record generated before the Board of Review.
The circuit court denied the Town's request. The court ruled that § 74.37(3)(d), STATS., permits a property owner to obtain a trial de novo in the circuit court to recover the amount of the claim not allowed by the Town. The Town appeals. The League of Wisconsin Municipalities has participated in this appeal as amicus curiae.
The question presented is one of first impression in Wisconsin. The issue involves the interpretation and reconciliation of §§ 70.47(13) and 74.37(3)(d), STATS. The interpretation of a statute presents a question of law which we review without deference to the trial court's ruling. Goff v. Seldera, 202 Wis.2d 601, 617, 550 N.W.2d 144, 151 (Ct.App.1996). Nonetheless, despite our de novo standard of review, we value a trial court's decision on a question of law. Scheunemann v. City of West Bend, 179 Wis.2d 469, 475-76, 507 N.W.2d 163, 165 (Ct.App.1993).
Section 70.47(13), STATS., provides:
CERTIORARI. Except as provided in s. 70.85, appeal from the determination of the board of review shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice under sub. (12). The action shall be given preference. If the court on the appeal finds any error in the proceedings of the board which renders the assessment or the proceedings void, it shall remand the assessment to the board for further proceedings in accordance with the court's determination and retain jurisdiction of the matter until the board has determined an assessment in accordance with the court's order. For this purpose, if final adjournment of the board occurs prior to the court's decision on the appeal, the court may order the governing body of the assessing authority to reconvene the board. [Emphasis added.]
Section 74.37, STATS., provides, in part:
(2) CLAIM. (a) A claim for an excessive assessment may be filed against the taxation district, or the county that has a county assessor system, which collected the tax.
....
(3) ACTION ON CLAIM. (a) In this subsection, to "disallow" a claim means either to deny the claim in whole or in part or to fail to take final action on the claim within 90 days after the claim is filed.
.... (d) If the taxation district or county disallows the claim, the claimant may commence an action in circuit court to recover the amount of the claim not allowed. The action shall be commenced within 90 days after the claimant receives notice by registered or certified mail that the claim is disallowed. [Emphasis added.]
The appellate issue turns on the meaning of the word "action" in subsec. (3)(d) of § 74.37, STATS. Johnson argues that this language authorizes a full trial de novo in the circuit court, including a jury trial if requested.
The Town argues that this language simply refers to the traditional certiorari form of judicial review recognized by § 70.47(13), STATS. The Town contends that the trial de novo procedure represents "a radical departure from long-settled procedure." Specifically, the Town contends that a de novo procedure: (1) violates principles of issue preclusion, (2) converts the Board's role from that of an independent arbiter of the assessment dispute into that of a defender of the assessor's valuation, (3) bars the remand procedures which certiorari permits, and (4) eliminates the presumptions which the law presently accords to the assessment.
The League of Municipalities shares the concerns voiced by the Town. However, the League candidly acknowledges that the statutes, together with relevant legislative history and case law, may well support Johnson's argument. We now examine these sources.
We begin with Pelican Amusement Co. v. Town of Pelican, 13 Wis.2d 585, 109 N.W.2d 82 (1961). There, the supreme court addressed § 74.73(1), STATS., 1957, the predecessor statute to the present § 74.37, STATS. That statute permitted an action for the recovery of illegal taxes paid. Pelican, 13 Wis.2d at 591, 109 N.W.2d at 85. The court said:
Prior to 1955, sec. 74.73(4) required an allegedly excessive assessment to be reviewed by an appeal from the determination of the board of review by a writ of certiorari to the circuit court. By ch. 440, Laws of 1955, the provision that required an appeal from the determination of the board of review was eliminated.
Id. at 593, 109 N.W.2d at 86 (emphasis added).
The legislative history of § 74.37, STATS., supports the supreme court's statement in Pelican. In 1953, the legislature enacted § 74.73(4), STATS., which expressly stated that no claim or action could be brought based upon an allegedly excessive assessment. Laws of 1953, ch. 435, § 2. The statute further stated that "[t]he amount of an assessment shall be reviewed by appeal from the determination of the board of review...." Id. However, in 1955, the legislature repealed this statute. See Laws of 1955, ch. 440. The legislative history accompanying this repeal demonstrates that the action was taken with the intent to allow the circuit court to take testimony and make findings of fact in assessment cases. 1 See Drafting Request, microformed on Laws of 1955, ch. 440 (Leg.Ref.Bureau).
Finally, in 1987, the legislature enacted § 74.37, STATS., in its current form. Consistent with the Pelican holding, subsec. (3)(d) of this statute authorizes an action in circuit court to collect the amount of the claim not allowed. The history accompanying this enactment states that the statute embodies the Pelican rule which envisions the alternative methods of judicial review. 1987 Wis.Act 378, § 74.37 (notes following).
Other language in § 74.37(4)(a), STATS., when compared with the certiorari statute, § 70.47(13), STATS., supports this interpretation. Section 74.37(4)(a) provides:
No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under s 70.47(13), have been complied with. [Emphasis added.]
By this language, the legislature has required an objecting taxpayer to comply with all of the provisions of § 70.47 governing board of review proceedings before commencing an action "under this section." Section 74.37(4)(a). However, the legislation provided one notable exception--the taxpayer need not comply with certiorari procedures set out in § 70.47(13). Since the legislature eliminated the certiorari method of judicial review by this language, it must have contemplated another. This, of course, is exactly what subsec. (3)(d) accomplishes by providing for a separate action in the circuit court.
Section 74.37, STATS., carries other language which, in our judgment, signals the legislative intent to create a separate and distinct method of judicial review. For instance, before an action under § 74.37 may be commenced, the taxpayer must first pay the disputed tax and comply with the claim procedures set out in the statute. Section 74.37(4)(b). Section 70.47, STATS., carries no such requirement.
Finally, and most telling, § 74.37(4)(c), STATS., amended by 1995-96 WIS.ACT 408, § 9, provides that no action...
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