Nankin v. Village of Shorewood

of the Gertrude H. Weiss Armin Trustee Nankin, Plaintiff-Appellant-Petitioner, Trust, Revocable

v. Defendant-Respondent. Village Shorewood, Court Supreme 6, July argument March 2001. Decided No. 99-1058. Oral 2001 WI 92 141.) (Alsoreported in 630 N.W.2d plaintiff-appellant-petitioner there were For the by Weiss, Marcuvitz, Robert L. Gordon Alan briefs Brady Donahue, Milwaukee, Berzowski, LLP, & by argument Marcuvitz. and Alan oral Robert Gordon defendant-respondent a brief there was For the Raymond Pollen, and Cri- Deborah S.R. J. Hoffmann Steeves, Milwaukee, Carlson, C., vello, Mentkowski & S. argument by Raymond Pollen. and oral by Gregg Hago- filed C. An amicus curiae brief was City city attorney, pian, of the assistant on behalf Attorney City Milwaukee, the Wisconsin for the of Assessing Officers, the South Eastern Association Assessing Officers, and the Wisconsin Association Intergovernmental Cooperation Milwaukee Council of by Gregg Hagopian. County, argument and oral BABLITCH, 1. WILLIAM A. J. Armin Nan- (Nankin) appeals' kin of a seeks review court of upheld constitutionality decision that of Wis. Stat. 74.37(6) (1997-98).1 operates This section allow property popula- owners of located in counties with challenge property 500,000 tion of than less court; assessment a full in the with trial circuit those n witha (populous 500,000 or more coun- ties) are not allowed a full "de in the trial novo" circuit court. Nankin contends the statute is unconstitu- guarantee tional because it violates the constitutional equal protection is, of the it law, treats owners of differently located in counties than owners of in other located counties without a agree. rational We We basis. also conclude that is severable from the remainder of stat- Accordingly, ute. we reverse determination made by appeals grant the court of motion for Nankin's summary judgment. AND

FACTS PROCEDURAL HISTORY undisputed. ¶ 2. The facts are Nankin is trustee parcel property of a of trust that owns a real in the Village (Village) County. of Shorewood Milwaukee May objection 9,1998, On Nankin a filed written to the village property. of the On assessor's assessment May Village 11, 1998, of Shorewood Board of (Board) hearing objection. Review conducted this hearing, At the conclusion Board voted to village sustain the assessment of the assessor. statute, 3. Pursuant once a board review may appeal decision,

renders its from the decision be subsequent All the Wisconsin are to references Statutes the 1997-98 -unless indicated. version otherwise ways.2

accomplished First, an can of three owner one appeal determination an action for from the board's under Stat. the circuit court certiorari 70.47(13). pursuant § § 70.85, Second, to Wis. may complaint property submit a written with owner requesting depart- department that the of revenue (4)(b). 70.85(1), property. § ment revalue the may appealed through department's then decision be county prop- in the in which the an action for certiorari 70.85(4)(c). finally, erty § Third and after is located. paying assessment, a owner the tax on the may proceed § a claim for under Wis. Stat. 74.37 with against the taxation district3 an excessive assessment entity county, depending on which collected or the (4)(b). (2)(a), 74.37(1), § Such claims seek "to tax. general property imposed amount of tax recover that excessive." the assessment of was because 74.37(1). aggrieved prop- denied, If claim is erty an action in the circuit then commence owner claim not court to the amount of the allowed. recover 74.37(3)(d). 74.37(6), however, 4. Because of Wis. Stat. pursuing option. prohibited this final Nankin was from provides apply that 74.37 "doesnot This subsection population 500,000 or more." In this counties with a property was located in the case, because the trust County, county Village of Shorewood in Milwaukee 500,000 more, that had a Nankin could § 74.37. not file a claim under 2 Delavan, 2d Hermann v. Town 215 Wis. See of (1998). 379-80, 572 N.W.2d 855 town, village city in A is defined as "a or "taxation district" are levied and collected." Wis. general property taxes which 70.045. § declaratory 15,1998, On June Nankin filed a judgment seeking court, action in the circuit declara- 74.37(6) § tion that Wis. Stat. was unconstitutional. In (1) particular, alleged he that this statute violated Arti- I, cle of Section 1 the Wisconsin Constitution and the Fourteenth Amendment of the United States Constitu- guarantee protection equal tion, of both which under (2) 31(6) law; IV, Article of Section the Wisconsin prohibits special Constitution, which the enactment of private regarding or laws the assessment or collection (3) taxes; VIII, of Article Section of the Wisconsin Constitution, which mandates that the rule taxation sought shall be uniform. Nankin also a declaration 74.37(6) from the court that was from severable permanent injunction statute; remainder of the prohibiting 74.37(6) asserting § the defendant from regarding a defense to claim filed Nankin property; incurred, 1998 assessment of and costs including attorney reasonable fees. respect protection equal claim, 6. With his argued

Nankin that the statute was unconstitutional legislated disparate persons because it treatment property municipalities who in in own counties with a persons 500,000 or more and who own property municipalities in other counties. Persons owning property argued, counties, Nankin only ultimately could receive certiorari review their court, assessments in the circuit either under 70.85(4)(c). Wis. Stat. In Wis. Stat. con- persons owning property trast, in other counties could by pursuing de receive novo review in circuit court 74.37(3)(d). an action under Wis. Stat. con- Nankin tended that there was no rational for this basis disparate treatment owners assessment solely

appeal options based on the of county in which the is situated. summary judg-

¶ for 7. Nankin filed motion This motion included a claim that Wis. ment. 74.37(6) IV, 18 Article Section of also violated provision This constitutional Wisconsin Constitution. only legislature passing from laws have limits application. limited County Court, the 8. The Milwaukee Circuit Sykes, Diane S. denied Nankin's motion

Honorable declaratory concluding request he relief, his for carry proving to his of the statute uncon- failed burden beyond respect reasonable doubt. With stitutional equal protection claim, the determined Nankin's court question Johnson & that this had been resolved S.C. Son, Caledonia, 292, Inc. v. 2d Town 1996). (Ct. App. The court followed this N.W.2d precedent opined that for the it was reasonable exempt populous type counties from this based on the conclusion that de novo review review municipal circuit court board of review decisions Certiorari would be unworkable such counties. provided meaningful review, noted, the court still opportunity judicial municipal correction of tax though errors, far assessment even review was rejected de also narrower than novo review. court denied costs Nankin's other constitutional claims and to Nankin. per appeals, in a curiam deci- 9. The court of accepted

sion, the circuit court's We affirmed decision. vio- review determine whether Wis. Stat. following or lated one more state constitutional (2) (1) provisions: IV, Article Sec- I, 1; Article Section (3) 31(6); IV, tion Article Section 18.4 Because we statutory conclude that this I, section violates Article argu- Section will we not review Nankin's other 74.37(6) analysis maybe ments. Our also reveals that severed from the remainder of the statute.

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

EQUAL PROTECTION challenges constitutionality ¶ 11. Nankin equal protection grounds.5 Wis. Stat. To 4 VIII, pursue Nankin did not 1 his Article Section claim on appeal. 5Equal I, protection guaranteed under Article Section 1 Constitution, people the Wisconsin which “All are states: born equally independent, free and rights; and have certain inherent life, among liberty pursuit these are happiness; instituted, rights, governments deriving secure these their just powers governed." from the consent of the "This court applies the interpretation Equal same to the Protection state given equivalent provision." Clause to the federal (1998). Bailey, 245, 261, 578 Tomczak v. 218 2d N.W.2d 166 Wis. 97 prevail, unconstitution- he must show that the statute similarly ally situated classes treats members of differently. cases, at In like Aicher, WI 98 56. statutory does not classification here, where suspect interest, we class or fundamental involve if there exists will sustain the classification support v. it. Milwaukee Brewers rational basis (1986). A 98, DHSS, 2d 387 N.W.2d Wis. only legis- equal protection "the violates when statute arbitrary has made an irrational lature purpose or classification, has reasonable one that no relationship proper policy." at state Id. to the facts or Any of the reason- must resolved favor doubts be R., v. classification. State Hezzie ableness (1998). 848, 894, 2d 580 N.W.2d 660 " statutory [that] a classification 12. 'The fact inequity. provide not sufficient in some . .does results invalidating legislative grounds Id. a enactment.'" for (quoting McManus, 113, v. 152 Wis. 2d at 893-94 State " (1989)). '[e]qual protec- Indeed, 654 N.W.2d persons deny power a to treat tion does not state the jurisdiction differently....'" (quot- its Id. at within 131). "[t]he ing However, McManus, 152 2d at inequality test is some results from basic not whether there exists a rational classification but whether justify inequality Mil- basis to of the classification." determining Brewers, Wis. 2d at 99. In waukee exists, look first to deter- whether rational basis we legislature articulated rationale mine whether id. If we cannot for its determination. See at 99-101. any identify rationale, is the such articulated it court's obligation construct one. Id. at ¶ 13. We conclude that Nankin has met his bur- proving beyond den in a reasonable doubt that Wis. equal protection. § violates We reach this separate conclusion based on three determinations. enacting 74.37(6), that, The first determination is legislature created distinct classification citi- zens, is, that owners located in counties population people par- 500,000 with a or more. The dispute ties do not that the statute created this classification. legis-

¶ 14. Our second determination is that the significantly lation treats this class different from all similarly particular, others situated. In as Nankin differently by asserts, the statute treats the class prohibiting filing it from a circuit court action under 74.37(3)(d) challenge Wis. Stat. the excessiveness prop- of their erty assessment. All other owners located in counties with a of less than proceed 500,000 are entitled to under this statute. The inequality advantages stemming results from from cir- 74.37(3)(d), cuit court actions under which not analysis provide available to the disfavored class. We on our conclusion below. determination 15. Our final Nankin has proving beyond

met his burden in a reasonable doubt there is no rational basis the classification 74.37(6). under Wis. Stat. did not classification, articulate rationale for the and we are unable to construct a rationale for this classifica- tion. There is no rational for basis property municipalities treat in owners located dissimilarly challenging different counties their property solely popula- tax on assessments based county property tion of the in which the is situated. Again, analysis shows how we reach this our below determination. background prop- begin

¶ with some 16. We erty general property in for tax administration municipalities pri- form the whole, On Wisconsin. mary property tax administration units of designate particular, In the statutes Wisconsin. general property city, village taxes town, in which Stat. are and collected as taxation districts. Wis. levied required § an Each district to have 70.045. taxation may appointed or assessor, and this assessor be 70.05(1).6 § In and the alternative elected. Wis. Stat. may adopt and conditions, counties under certain county implement system. assessor 70.99(1). § general property The in each 17. assessment city, village according

town, and is made to Wis. Stat. 70.05(1). duty It is assessor's Ch. 70. Wis. Stat. personal and discover, list, and value all taxable real annually the taxation district within report an roll for the such information in assessment 70.32(l)-(2). §§ 70.10, 70.29, If a district. Wis. Stat. disagrees assessment, owner with an municipal- objection file a formal with owner 70.47(7)(a).7 ity's of review. Wis. Stat. board review, however, "is not an board body body assessing gwasi-judicial whose rather a but duty tending show errors in the it is to hear evidence provisions have asses special First class cities their cities defined statute. sors. Wis. Stat. 70.06. Classes of are See Wis. Stat. 62.05. cities, class a board In first class cities certain second complaints objections brought will hear before assessors 70.075, 70.07, review. See Wis. Stat. §§ before board of 70.47(16). upon

assessment roll and to decide the evidence adduced whether the assessor's valuation is correct." Corp. rel. State ex I.B.M. v. Bd. du Review Fond (1939). Lac, 306, 303, 231 Wis. 285 784 N.W. board presume must the correct, assessor's valuation is presumption may only by and this be rebutted suffi- showing upon testimony by cient oral sworn the objector that valuation incorrect. Wis. 70.47(8)(i). If the board determines that the assess- high ment is or too low, too it must raise or lower (9)(a). 70.47(6), accordingly. § assessment ¶ 19. After decision, the board renders its may property pursue appeal owner one of the three options analysis discussed above. Our focuses on differences between the certiorari review available 70.47(13) 70.85(4)(c) §§ under Wis. Stat. and a cir- permitted cuit court action under Wis. Stat. 74.37(3)(d). analysis A close reveals that a pursue owner who is able to court circuit action is placed significant advantage compared aat when other owners.

¶ 20. Certiorari review under Wis. Stat. 70.47(13)8 is limited to a review of the record made Hug- the board of ex before State rel. Hemker v. review. (Ct. ged, App. 320, 323, 114 Wis. 2d 338 N.W.2d 8Our discussion of certiorari review of the board of review's applies equally department decision for certiorari review of 70.85(4)(c) of revenue's decision. Wisconsin Stat. not does expand grounds Therefore, certiorari review. it is defined, review, appropriately similar to Wis. Stat. § Milton, under common law certiorari. See Hanlon v. Town of 61, 23, 44; 2000 WI 2d 235 Wis. N.W.2d State ex rel. Armenia, Bd. River Power Co. v. Review 2dWis. (Ct. 1985). 94, 97, App. 370 N.W.2d 580 1983). may its factual Thus, the not conduct own court inquiry Id. On not admit new evidence. following only review, the considers factors: court (1) (2) jurisdiction; board actedwithin its whether the according law; the board acted to whether whether the board's action was (3) arbitrary, representing oppressive unreasonable, its will (4) judgment; the evi- rather than its and whether reasonably might dence was such that the board question. in make the order or determination County Mgmt., Review, Bd. Inc. v. Kenosha Waste (1994). 554, 541, 184 Wis. 2d 516 N.W.2d 695 ¶ made accor- 21. An assessment that was in statutory upheld if it dance the mandate must be with any supported by can reasonable view of the evi- be The make an of the dence. Id. court will not assessment any property; instead, if it finds error that renders void, assessment the court must set aside the assess- proceedings. ment and remand to board further Toy Mosel, 566; at State rel. Co. v. Town Id. ex Garton (1966); 253, 258, 2d Wis. Stat. 32 Wis. N.W.2d 70.47(13). § compare to a circuit court 22. We this review 74.37(3)(d). Again, permitted §

action under Stat. pursuant section, a claim in the taxation this after county property disallowed, district or owner amount file an action the circuit court recover imposed property tax a result of an excessive (3)(d). 74.37(1), (2), proceeds § assessment. according This action procedure practice. to state civil See Wis. (2). 801.01(1), Village argues Johnson, 206 23. The that S.C. already concluded that the differences Wis. 2d between certiorari review and a court action under 74.37(3)(d) significantly Wis. Stat. do not result in property different treatment between owners located populous counties and other owners in the state. In S.C. Johnson, an owner of located in County Racine filed a claim and action under 74.37. concluding pur- Id. at 296. After owner could action, sue this court examined whether prohibiting right this counties violated equal protection. Id. at 306-08. court addressed argument though party even it concluded that the raising argument^, municipality, standing no had challenge constitutionality of the at statute. Id. despite 302-04, that, 306-08. The court concluded anomalies that existed between certiorari review 74.37(3)(d) legislative action, the distinction was equal protection. insufficient to violate at In Id. 308. reaching determination, its the court the noted that merely by distinction dealt with "the method the which right judicial pursued," is review rather than judicial provided all, whether review was at which the suggested may protection equal court have raised some concerns. Id. disagree

¶ 24. We with the characterization appeals. problem made the court of with this characterization is an action under Wis. 74.37(3)(d) simply judicial § not is another means of "[a] review. Judicial entails review court's a review body's lower court's legal findings." an administrative factual or (7th Dictionary Black's Law ed. 852 1999). That is not case an action under 74.37(3)(d). Instead, this statute affords the claimant right pursue according to an action to state civil right procedure, including

practice a to trial.9 significant certiorari because, unlike This difference is 74.37(3)(d) to review, actions allow owners despite again fully a their case in court trial contest having it the board of review. contested before actions The differences between such court begin with, To are considerable. and certiorari review above, is limited to mentioned certiorari review comparison, during a In court review of record. may proceeds trial, court action, if the action to regard any determination without determi- make its any proceeding. Instead, new made at earlier nation may may introduced, the court evidence be making In examine this evidence in its determination. during review, trial, addition, unlike certiorari a court may giving make determination without the court its previous pro- at a deference determination made ceeding. only give weight presumptive The court must 70.49(2). to the assessor's assessment. Wis. Stat. Finally, review, court, trial, in a unlike certiorari making required upon determination, not its is to the for an assessment. It make remand board is determination based on the evidence. The court its only respect that, limited in the if reassessment necessary, must the action and court continue Son, Caledonia, In & v. Town S.C. Johnson Inc. (Ct. 292, 301, 1996), App. 2d the court of 557 N.W.2d 74.37(3)(d) a "trial de appeals referred to a Wis. Stat. action as "Atrial de novo is a trial which novo." This was incorrect. new no had the whole case is retried as if trial whatsoever had been Michelson, Falls v. 104 in the first instance." Vill. Menomonee of (Ct. 1981). 137, 149, Although App. 2d 311 N.W.2d 658 Wis. review, such are contested at the board of board assessments trial, is hearings the same a court which cannot be said to be permitted under to 74.37. § rendering judgment.

order the reassessment before its 74.39(1). § However, even if a reassessment necessary, proceed judgment the court still if parties it is in the best interests all to the action. 74.39(3). § legislative history § 26. The of Wis. Stat. 74.37 supports legislature

also the conclusion that provide intended an action for excessive assessment to significantly option different for owners challenging than mere certiorari review their In 1953, assessments. created Wis. Stat. 70.47(9a) (1953), permitted § which certiorari review decision, from the board of review and Wis. Stat. 74.73(4) (1953), prohibited any § which claim or court upon alleged action based an excessive assessment and appeal restricted from the board to the review man- 70.47(9a) (1953) prescribed ner under and other drafting §§ 1-2, 435, statutes.10 See ch. Laws of 1953. A request January 25, 1955, dated shows Lieuten- ant Governor Warren Knowles wanted to revise ch. 435, Laws allow the circuit court to "take testimony finding and make of fact in assessment Drafting Request, cases." on ch. microformed Bureau). (Leg. specifically, Laws of 1955 Ref. More he sought to amend certiorari- review the circuit court authority weigh so the court had "the evidence and make a final determination the facts." Id. request only that, time, noted at that the court could (1953), The other statutes included Wis. Stat. § which, 70.47(16), objec like the provided special current for procedures cities, tion for residents of first class and Wis. Stat. (1953), which, 70.85, permitted 70.85 similar to the current challenge the owners to valuation of their assessment (1953), department before the of taxation. Section 70.85 how ever, provide did not court. certiorari review the circuit for new assessment. to the board of review

remand Id. request, response however,

¶ In to this 27. scope legislature of certiorari not broaden the did legislature Instead, the circuit court. review in repealed 74.73(4) (1953), § to Stat. and recreated Wis. permit excessive assess- a circuit court action 74.73(4) (1955). § 440, See ch. Laws of ment under (1953) 70.47(9a) was left intact 1955. Wisconsin Stat. 70.47(13). § 878, as ch. later renumbered See and was request subsequent action of 1979. This Laws legislation's intent shows that provide property full trial to owners with a court was signifi- challenging assessment, their which was when cantly existing certiorari review. different than the Village argues equal protection that an 28. The present review is not because the board of violation provides property adequate process to owners. We due argument allege disparate interpret no that property are essen- exists because owners treatment tially process at the same the board of review afforded they primary focus, in a circuit court action. Our comparing certi- however, is in the differences between However, when and a court trial. even orari review hearing comparing to a trial court board review apparent assessment, a trial an it is excessive safeguards provide significant further offers may pursue advantages who such owners court actions. owners First, a court trial allows present is their case in forum that conducted discovery.

according evidence and In to the rules of presented this manner at contrast, evidence is not particular, hearing, evidence In at the board the board. testimony, only through presented sworn, oral 70.47(8), only compel pro- the board 70.47(8)(d). documents, duction of Such informal proceedings may incomplete an lead to anor inade- quate Hemker, record. See 114 Wis. 2d at 323. Nevertheless, the board renders a on decision based this record. property

¶ 30. Second, trial, at a court owners subpoena testify can to contrast, witnesses at trial. In only hearing, at the board of review the assessor required appear, only § to 70.48, Wis. Stat. and the may, upon request board and the of shall, the assessor subpoena appear, other witnesses to Wis. Stat. 70.47(8)(d). § by judge;

¶ Third, 31. a court trial is conducted proceedings necessarily the board of review are not by legal professionals conducted such who are versed membership organiza- of rules evidence. The depending tion theof board of review varies the size municipality of the system, and the of nature the assessment any

and the board contain number city, village public pub- town, residents; officers; 70.46(1). employees. lic See Wis. Stat. property typically Fourth, owners greater prepare

afforded a to amount time their case at the circuit court than level before the board by review. final assessments the assessor and the delivery place only of the assessment roll takes a short Indeed, time before the board of review meets.11 notice 11Property timely assessment must be handled in a man ner personal assessor. Assessors must all real and assess property January year. as of the close of 1 of each Wis. Stat. Except 70.10. in first and cities have a second class board assessors, completed the assessments must be before first Monday April, 70.10, Wis. Stat. and the assessor must completed all deliver roll and sworn statements and valua- days property provided owners 15 before must be property meeting a different is assessed at board when previous year. § 70.365. How- than the Wis. Stat. value immediately required property are then ever, owners meeting, objection before the and the board to file an only property provide 48 hours owners with has 70.47(3)(a)5., hearing. See Wis. Stat. notice before (7)(a). through court The additional time afforded prepare their trial enables owners to better case. whole, differences 33. On these show permitted pursue a circuit owner who is significantly prop- treated different than

court action is erty are limited to mere certiorari review owners who having Thus, in the circuit court. reached conclu- step equal sion, continue to the next of our we analysis: protection rational basis. addressing legislature the had a In whether establishing in under basis the classification

rational 74.37(6), us look at Wis. Stat. Nankin asks to where the the drew the "line of demarcation" for separates is, the classification, line that examined a favored disfavored classes. We similar pur- demarcation" in Milwaukee Brewers for "line of poses equal protection analysis. Brewers, of Milwaukee correctly case, 130 2d In Wis. at 104-05. Nankin county border, that the line is at the asserts drawn population county. question on the of the based explanation then whether there is a rational becomes legislature to the line at for the have drawn this border by property personal tions of to clerk of taxation district Monday May, in 70.50. The is the first Wis. Stat. board then 30-day period begin- required during to at time meet 70.47(1). May. ning Monday the second of Wis. Stat. on 108 right under a statute that affords owners the challenge their assessments made a municipality within that border. upheld

¶ 35. We have classifications on based population e.g., See, several occasions. Libertarian (1996) Party State, 790, v. 2d 546 N.W.2d 424 curiam); (per City Milwaukee, Johnson v. 88 Wis. (1894). fact, 60 N.W. 270 In we have noted that it longer open is no to doubt that counties be classi- according population. Bay fied Vill. v. of Whitefish County, 373, 377, Milwaukee 224 Wis. N.W. (1937). However, such classifications are not without limitations.

It is a mistaken idea that because classification on the basis in respect sustainable legislation subjects, may on certain it be appro- priate for purposes legislative all classification enactments. Such basis for classification must have reasonable purposes relation objects of legislation, and must based upon be rational difference the necessities or conditions groups subjected found to different laws. If no exist, such relation and differences the classifica- tion is invalid. (foot (1998)

16B Am.Jur.2d Constitutional Law 845 omitted); Chicago League is irrational case because assessments and reviews of these assessments at are conducted the government municipal county level, not at the level. In light may fact, of this Nankin asserts that it been have legislature rational for the drawn have the line population municipality based the on of the municipalities pursuing thereby restricting from some 74.37(3)(d). § However, it an under Wis. Stat. action legislature to the line have drawn was irrational for county therefore, a border, and it is violation at the equal protection. history legislative Wis. A of the for review predecessor Stat.

Stat. and its Wis. 74.73(4) (1965) legislature did not shows that any rationale for its classification. There- articulate obligated fore, a aid in are construct Village rationale. To we determination, our offers two reasons judicial First, it that the wor- the classification. asserts county large is kload in a with a county substantially popu- than in a small more a with 74.37(3)(d) by prohibiting § lation, and actions large population, judicial workload counties with argues manageable. Second, that, more it becomes restricting with owners of located counties large population actions, review these to certiorari pace, at faster circuit assessments occur because give preference must to such certiorari actions. courts 70.47(13). important, See lage Stat. This the Vil- Wis. depends asserts, it on tax collected on because budgets. property for their explanation that neither 38. We conclude In as a basis for the

serves rational classification. timely judicial prop- resolution of short, workload erty all assessments concerns of counties. Certainly, in the circuit court dif- volume cases counties; however, asserts, fers between Nankin sought disparities offset such has county by awarding each a certain between counties judicial depending such amount of branches volume. See 753.06. legislative

¶ have We stated that classifica- satisfy tion will the rational basis if it standard meets following five criteria: (1) All classificationts] must be upon based sub- stantial distinctions which make one really class different from another.

(2) The classification adopted germane must be purpose of the law. (3) The classification must not upon be based existing [It only. circumstances must not be so con- preclude stituted as to addition to the numbers included within the class].

(4) To whatever class a law it must apply, apply to each equally member thereof.

(5) That the characteristics of each class should be so far from different those other as to classes reasonably suggest at the propriety, having least regard public good, to the substantially different legislation. (alterations original).

Aicher, 2000 WI test, second, Under first, criteria fifth not satisfied. 40. The classification under 74.37 upon population county. apply-

is ing Thus, based of a population factor, the first must constitute a distinction, substantial such that it makes class really created the statute different from other clas- ses. We indicated have constitutes a substantial distinction when classes have different requirements respect pur- needs, conditions, or with poses legislation statutory such of the justified account for these differ- classification City 390-91; at Johnson, See 88 Wis. enees. cf. Sewerage Dist., 144 Metro. v. Milwaukee Brookfield (1988). 896, 916, Wis. 2d 426 N.W.2d population however, case, In this does not 41. that makes one constitute a substantial distinction nothing really There is different from another. class justify populous counties to the classifi- inherent about in restricts the manner which cation in the statute that property in such of located counties chal- owners Populous lenge do their assessments. counties not property means additional to address afford is such that a Wis. Stat. 74.37 action assessments unnecessary populous Moreover, in such counties. present any special problems do not or con- counties rational such cerns such it is restrict circuit populous Indeed, in of court actions counties. owners property populous particularly located in counties — villages, property in towns, of located small owners great county as in the an interest in cities obtaining —have property a court trial on their assessment as property of in other counties in the owners located why property There is an of state. no reason owner Village in the of in Milwaukee located Shorewood County differently should be treated than an owner of Village Portage County property in the of in Amherest respect challenging property their with assess- ments. No substantial distinction exists. is in second factor also not met this germane is to the

case because purpose classification not purpose is to law. The of the law afford challenge property property a means to their owners review assessments. Assessments board of hear- municipal ings There are conducted at the level. is no justification using county in of a legislation municipal that is on a function. Fur- based justification ther, mentioned, there is no prohibiting only owners of coun- challenging ties from their assessments under Wis. Stat. 74.37. Judicial in all resources coun- equally by § actions; ties burdened it 74.37 cannot populous counties, be said that with their additional judicial greater resources, are in need relief respect”than other counties. Finally, prong

¶ 43. the fifth the test also not prong, met. Under this we examine whether the char- acteristics of each class are so far different as to reasonably suggest propriety, at least as to the good, public substantially legislation. different This following reasoning: factor is based on practical legislative "The true limitation of the power classify to is shall that the classification be reason, upon apparent based some natural —some suggested by necessity, by reason such a difference in the subjects situation circumstances of the different placed suggests in necessity classes as the of propriety legislation respect different with to them." ex rel. v. State Risch Bd. Policemen's Pension of Trs. of (1904) (quoting

Fund, 44, 54, 121 N.W. 954 Wis. 98 Walter, 37 264, 272, Nichols v. Minn. 800 N.W. (1887)). identify any We are unable to difference in properties situation or circumstance between located properties in counties and located in other in state that counties the would necessitate different legislation challenging property for the classes in their Properties in assessment. both classes are assessed regardless manner, and reviewed in the same of the county population in which the is Again, nothing distinguish property there is located. from located situated Shorewood village throughout respect state with other analysis property. under these Thus, an assessment of supports that this classification factors our conclusion by supported not a rational basis. is Certainly, legislature create a clas- population. fact, In we sification in a statute based upheld in State ex rel. Johnson v. such a classification (1971).12Cady Cady, 2d 185 N.W.2d legislative dispute a over a certain involved whether hearings probation- providing revocation scheme protection. equal Id. at 550-51. The violated ers provided probationers in that counties with a scheme legal population than would in the 500,000 of less be custody agency probation- while of an administrative population 500,000 a or more be in ers with would custody probation departments the crimi- of the at 552. As nal branches of circuit courts. Id. probationers in receive an result, small counties would large hearing, probationers in administrative while judicial hearing. receive a Id. at 551. counties would by population noted that such classifications vio- We equal only they protection were found lated where arbitrary, is, irrational and that where the beyond its doubt. Id. at discretion reasonable abused by stating "[w]e are not con- 552. We concluded a classification established vinced legislature, provides procedures for different which having 500,000, more counties than arbitrary. proce- in Thus, irrational or the difference provisions does dure not offend the constitutional protection requiring equal of the law." Id. at 553. 12 Cameron, City 24 See v. Town Wis. also of Marshfield (1964) 56, 62-64, (upholding classifications 2d 127 N.W.2d 809 pertained county population on statute based where districts). apportionment public utility taxes school Village argues Cady supports ¶ 45. The its position that the classification under Wis. Stat. 74.37(6) equal protection. However, does not violate procedure Cady in the differences in did not meet the high required equal proving protection standard an Cady, however, violation. Since we have determined procedure that substantial differences in offend protection equal guarantees in certain instances if support there is no rational basis to these differences. (finding Brewers, Milwaukee at See Wis. 2d legislative provisions relating that two to administra- judicial procedures equal and tive review violated protection). proven case, In this Nankin has likewise beyond a reasonable doubt that the classification at protection equal issue violates it because treats mem- significantly of classes without a bers different rational although Cady turn, In basis. shows classifica- by population permissible in cases, tions some it holding does not limit our in this case.

¶ 46. In we sum, conclude that statute's dis- parate treatment of Nankin other owners of located in counties is without basis, as a statute result, rational violates protection. equal recognize

¶ 47. We that our determination —that equal protection violates Wis. —is contrast to direct the conclusion reached S.C. John- relying Cady, Johnson, In S.C. son. on court of appeals "[g]iven concluded that the deference which population, law accords classifications based we nothing arbitrary legislative see irrational Johnson, 206 2d scheme at issue in this case." S.C. analysis find However, above, on.our we at 308. based arbitrary, and there- irrational and the statute both incorrectly decided fore, conclude that S.C. Johnson we portion result, we that of S.C. this issue. As a overrule Johnson.

SEVERABILITY severability legislature provides for the 48. The general statutory rules of con- of statutes under the Specifically, struction.

provides: are provisions

The the statutes severable. If law are severable. provisions session any provision of the statutes or of session law is invalid, application any person or if the of either invalid, invalidity not or circumstance is such shall affect which can be provisions applications other or given provision the invalid effect without application. severability language generally

Thus, this allows affect- when invalid section can be severed without ing the remainder of the statute. severability

¶ is We have likewise stated appropriate However, under such circumstances. we required legislative an intent have examination place take must first: an provision

"Whether unconstitutional is sev- erable the statute in it from remainder of which intent, appears largely question legislative is is severability." but in favor of presumption not Legislature "Unless it is evident that the would provisions have those its enacted which within not, power, of that is the inva- independently which fully part may dropped lid be if what left is operative a law." Janssen,

State v. 362, 379, 219 Wis. 2d 580 N.W.2d 260 (1998) (citations omitted). legislative history

¶ 50. The of Wis. Stat. 74.37(6), including history predecessor § of its 74.73(4) (1955), § Stat. reveals that the classification part has been a of the 1955, statute since when claims permitted for excessive assessment were first in the circuit court. See ch. Laws of However, 1955. noth- ing legislative history in the reveals legislature any part intended that of the statute would not § be severable from the Indeed, whole. as 74.37 (6) currently stands, subsection be severed and fully opera- the remainder of the statute will remain Thus, tive. because the has not indicated its 74.37(6) otherwise, intent we conclude that is severa- ble from the remainder of the statute.

CONCLUSION analysis ¶ 51. Based on our above, we conclude proving that Nankin has met his burden of that Wis. 74.37(6) is unconstitutional as a violation of equal protection. The classification established statutory signifi- section treats members of the class cantly different than members outside the class. We disparate cannot determine rational basis for this Accordingly, statutory treatment. we find this section unconstitutional. We reverse the decision of the court appeals grant summary judgment in favor of grant request perma- Nankin. We also Nankin's for a injunction nent to allow him to file a claim under Village. deny request 74.37 with the We his for costs associated with this case.

By appeals the Court.—The decision the court of is reversed. participate. SYKES, J., did not DIANE S. (dissenting). I CROOKS, J. PATRICK 53. N. majority's opinion join fails to it because

cannot presump- legislature's classification to the accord Nothing constitutionality it is entitled. to which tion majority presented has convinces that Nankin or is unconstitutional me that Wis. Stat. beyond focusing procedural By a reasonable doubt. allowing the rationale differences, rather than addi- counties the in less owners remedy assessments, of their tax court review tional second-guessed majority presumptively rea- has years. guided for 45 that has this state sonable statute regarding legislature remedies chose to allocate The pop- property on the basis of tax assessments review of populated received three counties ulation. Less people 500,000 or more remedies; counties with This statute is constitutional remedies. received two population is intended to distinction the because populous judicial courts. relieve the burden holding majority Through has also ¶ the its 54. myriad question statutes which the of other called into legislature upon population The differences. are based upon policy to make decisions based needs to be able accompany differences demands which the various population. legislature policy deci- made a Here, remedy populated give counties to less one more sion prevent populous over- counties, in order than to the burdening long courts. So counties' legislation, we for this there is reasonable basis uphold it. should § all 74.37 allows Stat. 55. Wisconsin prop- following of their avenues review

owners erty Property tax assessments. owners can have their by assessment reviewed a board of review under Wis. They § 70.04. can then have the board's decision reviewed certiorari to a circuit court under 70.47(13). Alternatively, if the assessment is under they complaint million, can file a $1 with the Wisconsin Department Revenue accord with 70.85. Those who own in counties with less than 500,000 option submitting have the additional under 74.37 of a claim assessment, for excessive and, if the tax district county they may claim, disallows that seek de novo by initiating review a claim in circuit court to recover allegedly excessive assessment. This additional option contrary majority's not, does to the conclusion, irrationally deprived mean that property has population owners in counties with a equal protection 500,000 or more of under the law. majority acknowledges, ¶ 56. As the this court legislature's must examine whether the choice to clas- sify according population supported by a rational Majority op. legislative history basis. at If provide does not basis, the rational the court must con- possible. City one, struct if Sambs v. Brookfield, 97 (1980). legisla- 356, 371, Wis. 2d 293 N.W.2d 504 history tive ofWis. Stat. does not articulate a rationale for the classification, so it is why majority legislative unclear discussed the his- tory length. at such 57. The rationale for Wis. Stat. analysis

seems clear from an of the statute itself. The process additional of de novo review would too bur- be populous densome on the more counties. burden on county, populous a and the concomitant burden on its already only County courts, is evident as Milwaukee branches, Circuit Court has 47 29 more than the next App. pp. County. court, Dane Wis. Stat. circuit busiest (1999-2000). Furthermore, Milwaukee 5849-5850 judicial County comprises administrative dis- a alone Appeals of n.3, Br. at 4 and Court trict, Amicus Curiae County. only I also serves Milwaukee District County Currently, App. p. alone Milwaukee Stat. experiences population, other coun- but burden likely certainly growing population, and will ties years ago, join in the future. Over 120 the classification recognized Supreme the bur- States Court the United legislature and that the on the courts den of this into consideration. be able to take should uniformity is not essential as "... A which cannot be essential regards different States State, regards parts provided different the constitu- each and all there is no infraction of are allowable in provision. tional Diversities which parts in different different States are allowable multi- .Large cities require the same State... peculiar arrangement and a plication of courts jurisdictions. It be an unfortunate restriction would if it could government on the of the State powers not, discretion, for these various provide in its exigencies." Cady, 540, 551, v. 50 Wis. 2d

State ex rel. Johnson (1971) (quoting v. Lewis 101 U.S. Missouri N.W.2d (1879)). Supreme Court has 22, 25 As the United States recognized population places on the a burden how have considered whether courts, this court should reasonably to ease the additional wanted counties. of 74.37 on burden nearly century, this court has held 58. For classify according legislature may counties that the population. v. Archibold 146 Wis. State ex rel. Scanlan (1911); Village 363, 131 N.W. 895 see also ofWhitefish Bay County, v. Milwaukee 224 373, 377, Wis. 271 N.W. (1937). according 416 "That counties be classified population longer open to has been said to be no Scanlan, doubt." 146 Furthermore, Wis. at 370. for the years, Son, last five S.C. Johnson & Inc. v. Town of (Ct. Caledonia, 292, 206 2d 308, N.W.2d 1996), App. denied, rev. 208 Wis. 2d 562 N.W.2d (1997), specifically has held that Wis. Stat. equal protection, does not violate because relationship there ais rational between the classifica- legitimate governmental purpose. tion and a majority's today unfortunately decision has the effect overruling support legisla- this line of cases that population. ture's classification based on overruling precedent, In addition to clear majority now makes numerous other statutes vul- equal protection challenge. nerable to an There are at classify according least 175 Wisconsin Statutes that population. those, Of there are at 24 that, least without dispute, explicitly regulate activity based the same having popula- classification of "counties 500,000 §§ tion of or more." Wis. 45.058 (memorials counties), populous (county 46.215 department counties), populous of social services (addi- (grants community programs), 46.48 for 48.07 (child services), tional sources of court 48.561 welfare populous counties), (county services 48.58 children's (relief home), counties), grant 49.025 block (maintenance complex), 51.08 (election of mental health 59.20 county officers), (budgetary proce- 59.60 (crime dures), (county functions), 59.79 board 59.80 (cash (raz- commission), designation), 59.82 flow 60.05 excavations), ing buildings (procedures and 75.67 cities), (capping filling authorized 167.27 wells (certification structures), records), similar 228.02 record), (inspec- original (copy 228.04 deemed 228.03 records), (marginal copies references 228.05 tion (corrections records), and alterations 228.06 in county county records), (joint and tuber- home 252.076 sanatorium), (language claims of small 799.05 culosis summons), court). (services stat- for These 938.06

and justification that for the conclusion further utes are population legis- distinguishable characteristic is a chapter in the statutes fact, In there is an entire lation. dealing only records in the treatment of with Ch. 228. Because and cities. Wis. Stat. counties guidance regarding majority neglects provide what statutes, as all distinction, as well a rational these population, are vul- now other classifications based challenges. equal protection nerable to future majority arriving conclusion, the at its In villages a in counties with and assumes towns similarly population 500,000 are situated of less than population greater than a in counties with to those just assumption, it can an reason- 500,000. Since this is villages ably argued in counties with be towns similarly greater population 500,000 are not so than situated. legisla- majority that the 61. The also assumes remedies based on make a distinction as to

ture cannot exactly Yet, this is what classifications. compensation. The Worker's has done with workers' distinguishes Compensation 102, Act, Stat. Ch. injuries, classification of on the remedies for based employees employment, ensure that covered in order to compre- injured prompt ill receive who become Inc. v. Labor & Indus. medical care. UFE hensive 274, 288, 2d 548 N.W.2d 57 Comm'n, 201 Wis. Review (1996). majority

¶ 62. The struck down Wis. Stat. distinguished because the statute remedial procedures population. on the basis of However, this is legislative upheld the same classification this court Cady, State ex rel. Johnson v. 50 Wis. 2d (1971). Cady, upheld, against N.W.2d 306 In this court equal protection challenge, provided an a statute which population. different remedies on the basis 50 Wis. Cady distinguished 2d at 553. The statute at issue probation procedures. between revocation Probation- ers counties with a 500,000 of less than hearing upon an received administrative revocation. county having popula- Id. at 551. Probationers in a tion of more 500,000-Milwaukee than County judicial hearing upon revocation. —received upheld stating: Id. at 550. The court the statute, "We are not convinced that a classification established legislature, provides procedures the which for different having population in counties of more than 500,000, arbitrary. proce- is irrational or Thus, the in difference provisions dure does not offend the constitutional requiring equal protection of the law." Id. at 553. though

¶ 63. Even the similarities between this Cady striking, majority case and attempts the nonetheless distinguish Cady. Majority op. ¶ at 45. The legislative exactly classification is same, as both distinguish population counties with a of less than population 500,000 from 500,000 counties with a Cady, just more. See 50 Furthermore, Wis. 2d at 552. population here, like where the classification deter- procedure mines remedial for review tax population Cady assessments, in classification procedures probationers. determined the remedial for just population And here, like classification deter- mines the difference between an administrative hearing.1 judicial

hearing in This court found and statutory Cady classification-based that an identical - arbitrary," population not "irrational was majority's attempts Cady, 553, at and the Wis. 2d convincing. distinguish it are not majority hangs its hat on the Moreover, 64. certiorari review and de novo differences between rejected Cady implicitly Majority op. ¶at review. by concluding that, however, distinction, purposes equal protection, there is no substantial certiorari review of the administra- difference between judicial hearing probation and a revocation tive hearing novo) (de probationer for a Milwaukee significant County. less Here, the difference is even all counties have access to certio- because residents of The has in the circuit courts. rari review remedy simply provide additional of de chosen to an populous in less counties. novo review to residents major- meaningful distinction, the 65. Without Cady. ity rely on the similarities in refuses to majority recognize that if there was ever also fails to equal require treatment of indi- situation to absolute Cady, such as viduals, it would be the situation same, the dif the classification distinctions are the While Cady, and State ex rel. Johnson v. ference between this case (1971), granted to is the review Wis. 2d 185 N.W.2d Cady, probationers class. In each hearing probationers all county judicial received a other followed, desired, by hearing if certi- received an administrative (1971). 549-51, 306 review. 50 Wis. 2d 185 N.W.2d orari populous case. Residents of the opposite The is true review in county receive administrative review certiorari court, All circuit of their tax assessments. other residents review, review, administrative certiorari addi- have remedy in the circuit court. tional of de novo review

124 probationers being prison. to where returned This Cady, held in that court person's even in a situation where a liberty stake, conditional it is is at not a viola- equal protection legislature designate tion of for the to population, procedures pro- on the basis of available to remedy. Reviewing vide a tax assessments has less liberty.2 consequences than severe the loss of Cady, legis- ¶ 66. In to the addition statute distinguished procedures has lature on the basis of population in numerous other statutes well. For example, populous county under Stat. 938.06, a required operate a is to center children's court and in a populous county county department provides less popu- § 59.20, intake services. of a Under residents less county county county surveyor, lous elect a coroner and county population greater residents of a but with a upheld, 500,000 than do not. Section should be deprive any it does because not individual of a review of legislature simply a tax assessment; the chose provide procedure prop- an additional remedial erty populous owners in less counties. provides presumption

¶ 67. The law us with deciding legislative when whether a classification vio- equal guarantees. protection presumption lates The is exactly opposite majority's assumption that the popula- based on cannot make distinction presume legislative tion. court must classification constitutional. Milwaukee Brewers DHSS, 79, Baseball Club v. 130 Wis. 2d N.W.2d (1986). "indulge every pre- The court must also 2Also, arguably, Cady, of a it would be more burden on county provide judicial hearing courts to Yet, this probation revocation. See 57 herein. court deter distinguishing according was neither mined arbitrary. Cady, irrational nor Wis. 2d at possible" and sumption all if at sustain the law to of the the reasonableness "in favor of all doubts resolve pre- Majority op. ¶¶ 10, 11. Such at classification." overcome, sumption overcome, if it is be must be beyond Brewers, 130 Milwaukee doubt. a reasonable majority reaching conclusion, the its In 2d at 99. proper presumption apply in favor of fails to constitutionality. Contrary majority's conclusion, this

¶ to the 68. Milwaukee us in we had before the situation is not challengers Brewers were in Milwaukee Brewers. The by singled out that were area residents of legislation, six-block meaningless option given only of an challenge hearing process an as informational (EIS) building Study Impact Environmental prison. 2d at 96-97. This Brewers, 130 Wis. Milwaukee including taxpayers, all different because case is County, to a mean- are entitled in Milwaukee residents by ingful a board of review. their assessment review of procedure, Milwau- claim the additional Even without challengers County residents, unlike the kee right. meaningful Brewers, have such Milwaukee Brewers was in Milwaukee 69. The situation legislation, far so it involved new different because also challenge process limiting review, that it an EIS contesting essentially prevented from residents case prison The instant at 105-106. location. Id. for 45 on the books that has been a statute involves majority it, years, effect, removes with- now, and the holding by that it is unconstitutional. hesitation, out pop- legislative based on classification This meets all five of constitutional, it because majority ulation is necessary to meet criteria discussed standard. the rational basis (1) All upon classifications must be based sub- stantial really distinctions which made one class different from another.

(2) adopted ger- The classification be must mane to the law. purpose the

(3) The classification must not upon be based existing only circumstances so must not be con- preclude stituted addition to numbers the included a within class.

(4) To may apply, whatever class law it apply equally must to each member thereof.

(5) The characteristics of each could be class so far different from those of other as to classes reasonably suggest at the propriety, having least regard public good, to the substantially different legislation. Brewers,

Milwaukee 2d at Wis. majority justi- ¶ 71. criteria, Under first by denying population fies its decision that makes one "really Majority op. class different from another." at majority recognize population ¶ 41. The refuses to distinguishes needs, conditions, classes with different requirements respect with to the on burden majority op. Through ¶ See denial, courts. at 40. its majority recognize fails to that certain benefits inure to residents in counties. Residents Shore- wood, as all as well other residents of Milwaukee County, benefiting explicitly county living from in a city a first which contains of Milwaukee. As class city, gets Milwaukee benefits and aid to which other county's entitled, and, often, cities are not all of the residents, therefore, also receive a Unlike rural benefit. County, County eligible Milwaukee is for relief Forest community grants, pro- § 49.025, block grants, gram § 46.48. As a result of the benefits County, municipalities in exclusive to Milwaukee Mil- County, including Shorewood, from the benefit waukee population distinction. majority by first contradicts itself 72. The also distinguishable

denying population factor, is legislative specifically recognizing classifica- and later op. Majority population. ¶at 17. In on tions based majority acknowledges that how seven, footnote depends popula- tax contests are heard assessment directly position that tion, contradicts its which population distinguishable Indeed, is not a factor. distinguishable population is direct evidence that legislature regulates factor, how the and demonstrates activity population. aas result of classification satisfies 73. The adopted is criteria, the classification second because germane purpose Brewers, to the of the law. Milwaukee majority simply on its 2d at 97. relies Wis. population denial that is a substantial distinction finding factor, that the classification does not meet this recog- regard ato rational basis determination. As legislature above, in the the uses nized list of statutes population distinguishing popula- factor, as a because placed effect the burdens on tion has direct on legislature entirely to counties. It is reasonable for the population, choose, due to not to further burden the populous This is rational to courts in counties. basis 74.37(6), uphold § and to find it constitutional. majority ¶ that distin- 74. The further believes county guishing population justified at line is not the property are reviewed at the because assessments Majority major- municipal op. level. at 42. What the ity overlooks, however, is that 74.37 provides courts, for in the circuit which are review organized by county. to Because the wanted prevent popu- burdening the courts in further circuit distinguish entirely counties, it lous was reasonable population county at the line. majority give judicial

¶ 75. The fails to the bur- weight simply deserves, den rationale the it by stating, "judicial timely it dismisses workload and resolution of assessments are concerns of all Majority op. However, counties." legislature's at 38. this was the legislature appears

choice, and the to have judicial that, counties, concluded the already "Any workload was too much. reasonable basis for the classification will validate the statute." Milwau- Brewers, kee 130 Wis. 2d at 99. Although completely ignored by major-

¶ 76. the ity, third and fourth criteria for a rational basis population determination also satisfied clas- 74.37(6). §in factor, sification Under the third only existing classification not does rest circum- stances, as others could be class. added Currently, only County Milwaukee is a member grow, they join class, as but other counties will they class the 500,000 Scanlan, reach mark. See (recognizing grow "may Wis. at 370 other counties class.") into the population

¶ 77. The classification also satisfies 74.37(6) applies the fourth criteria since Wis. Stat. equally throughout the class. None of the people 500,000 owners in counties with more than have procedure. access the additional claim Finally, ¶ 78. also classification prong test, the fifth meets the because the character- each istics of class could so far different the be from reasonably suggest propriety, light other class the in good, substantially public legislation. of the different majority factor, Similar to the first finds itself "una- any identify population ble to on difference" based legislation for the necessitate different "that would challenging their assessment." classes sug- Majority op. difference at allowing gests access to that more counties procedure in assessment claim the additional excessive might actually public run afoul of Wis. Stat. 74.37 good. Apart procedure on from the of the claim burden county, County tax in the and the districts Milwaukee alleg- having on courts hold de novo trials circuit edly be excessive assessments would burdensome. may justifications for addi- Also, there be other Many only procedure populated in less counties. tional may populations assessors, counties with smaller have majority review, that a of the and those on the boards of owners know. Circuit court review exces- provides assessments de novo an additional sive assurance that there is no favoritism in assessment. majority that 79. Since the concluded 74.37(6) equal protec- was unconstitutional on grounds,

tion it did not need to address Nankin's two challenges: One, additional constitutional that 74.37(6) IV, 31 the violates Article Section of Wiscon- special private sin Constitution as a or law that Two, or violates assesses collects taxes.3 private IV, or law Article Section because it is local IV, part provides pertinent "[t]he Article Section 31 any legislature enacting special private is from prohibited following .[f]or laws in the cases:. . assessment or collection extending taxes or for the time the collection thereof." However, any subject legislate pro- IV, legislation long hibited Article Section so IV, legislature may pro- "The complies with Article Section 32: by general subject for vide law for the treatment of which lawmaking Subject of this article. prohibited section 31 subject.4 which more than one addresses Section 74.37 provision, just violates neither constitutional as it does equal protection. not violate indisputably per- § 80. Wisconsin Stat. 74.37 only assessments,

tains to claims made on excessive nothing and, such, it has at all do the to with assess- § ment or of basis, collection taxes. On that 74.37 does IV, Moreover, not violate Article Section if even pertained § 74.37 to the assessment or collection complies requirements taxes, 74.37 with the for "general" "uniform" IV, and law under Article Section consistently applied 32. "This court has certain rules determining legislature's competence for under Const, pass affecting only IV, Wis. art. 32 to laws entities, certain such as cities or counties of a certain notwithstanding prohibitions size, or class Wis. Const, Party IV, article 31." section Libertarian Wis- State, 803, v. 2d 790, consin 546 N.W.2d 424 (1996) curiam). (per These rules are same five crite- comprise ria or factors the standard determining whether there is a rational basis for the legislative Id.; herein, classification. also see above. Because the is classification in 74.37 reasona- prongs test, ble under the five of that it is reasonable "[I]f §§ 31 here, where and 32 of IV are Article at issue. legislation being challenged contains classifica- open, germane, which tions relate to true being classified, differences between the entities then legislation general considered uniform City application." v. Milwaukee Metro. of Brookfield classifications, reasonable such laws shall be uniform in their operation throughout the state." IV, ”[n]o

4 Article provides private Section 18 or local passed by bill which shall be embrace more subject, expressed than one and that title." shall be Sewerage Dist., 911, 426 N.W.2d 144 Wis. 2d (1988). a tax words, if addressed In other even 74.37 "gen- collection, not, it it is a which does assessment meaning the of Article and "uniform" within eral law" proper. 32, IV, and therefore Section proper under 74.37 is also Wisconsin Stat. IV, 18 18. Since the Article Section IV, Article Section analyti- challenge context, in a classification the arises nearly five-part test the the same as cal framework is protection equal IV, Sec- Article used evaluate to City challenges. See tion 31 and Section 32 only 2d The difference 144 at 911-12. Wis. Brookfield, presumed to is not be constitu- is that the classification However, without Id. at n.5. even tional. presumption, is 74.37 there is no indication legislation 18, IV, in violation of Article Section "local" "general Village though See even form." of Whitefish County, Bay 79, v. Milwaukee 378 — (1937). Bay legisla- was N.W. 416 At issue in Whitefish delinquent of collected tion that modified allocation municipalities population taxes in counties with greater clas- 500,000. than This court found that the (even though sification did not make the law "local" greater only county population 500,000 with a than County) the classification was was Milwaukee because grow open is, into an one. That other counties could it. Bay problem the classification in with Whitefish any germane purpose it was not to of the law. was that suggest, discover, do not and we are unable to "Counsel resting upon population for classification basis county apply' applicable that does not Milwaukee equally every county the state so far as other moneys is Id. at 378. tax concerned." distribution germane to the Here, purpose contrast, classification 74.37(6), namely to relieve the of Wis. Stat. in the courts more counties from the addi- allegedly de tional burden of novo review of excessive tax assessments. upon

¶ 82. Based review of the five factors neces- sary to determine whether there is a rational basis justifies legislature's population which classifica- especially given legislature's tion, and presumed constitutional, classifications are to be I can- join majority's opinion. Nothing not Nankin or the majority presented judicial has convinces me that the provide burden fails rationale a rational basis for the classification, and that is uncon- beyond stitutional a reasonable doubt. respectfully all of reasons, 83. For these I

dissent.

¶ 84. I am authorized to state that Justice JON joins opinion. P. WILCOX notes see also Nat'l Ball Thompson, Club, v. 357, 369, 483 Inc. 108 Ill. 2d N.E.2d (1985). argues ¶ 36. Nankin that the line of demarcation

Case Details

Case Name: Nankin v. Village of Shorewood

Court Name: Wisconsin Supreme Court

Date Published: Jul 6, 2001

Citation: 630 N.W.2d 141

Docket Number: 99-1058

Court Abbreviation: Wis.