*1 TREIBER, Cotter, and First Patrick W. Patricia S. Company, Co-personal Trust As Wisconsin Stackner, M. of the Estate of Irene Representatives Plaintiffs-Respondents, KNOLL, County Register R. Milwaukee Robert Probate, McCormack, County Paul J. Milwaukee
Treasurer, Defendants-Appellants, SMITH, P. Treasurer for the State of Charles
Wisconsin, Defendant.
Supreme Court 6, 1987. Argued January No. 85-2115. October 1986.Decided (On bypass appeals.) court of (Also 756.) reported in 398 N.W.2d *3 defendants-appellants by For the there were briefs George corporation Jorgen- Rice, counsel, E. and John corporation argument by sen, counsel, assistant and oral Jorgensen. Messrs. Rice and plaintiffs-respondents
For the there was a brief Bruce, Jr., Jackson M. Brady, A. Quarles John Rothstein and & argument by Milwaukee, and oral Mr. Bruce. appeal CALLOW, WILLIAM G. J. This is an judgment from a of the circuit court for Milwaukee County, Hanley Judge presiding, Leo B. which held request Stats., unconstitutional. At the parties, granted bypass, pursuant this court to sec. (Rule) 809.60,Stats. 814.66(1)(a), filing establishes register proceed-
fees to be collected ings concerning appeal decedents’ estates. This raises question of whether sec. is unconstitu- following (1) grounds: tional on either of the It consti- equal protection tutes denial of of the laws under Article Section 1 the of Wisconsin Constitution fourteenth amendment of the Constitution of the statutory United States that it establishes classifica- (2) basis; for *4 tions which no there exists reasonable or it I, violates Article Section 9 the Wisconsin Constitu- provides person] “[every ought tion, which that to justice freely, being obliged obtain and without purchase (a) 814.66(1) it.” Because we conclude that sec. guarantees equal protection violates neither the both under the Wisconsin and United States Constitu- 9 of the Wisconsin Constitu- Article Section tions nor judgment circuit court. tion, of the we reverse the resident, Stackner, died tes- a Wisconsin Irene M. September Mrs. 1980. On October tate on petition representatives1 personal a filed Stackner’s seeking pro- County court, circuit the Milwaukee with (Estate). Thereafter, on Feb- estate of the Stackner bate inventory showing ruary 24, 1984, filed an the Estate $3,511,125.68, $12,106,073.93, debts of and a assets of $8,594,948.25. net value of probate fil-
Pursuant to sec. a paid ing $12,106.07 to be at time that the was fee probate inventory [All filed with the court. was Estate’s opinion in this are to the 1983-84 Wisconsin references noted.] February unless otherwise The Estate refused to statutes required pay 27, 1984, On Robert R. fee. County Register Probate, Knoll, wrote Milwaukee pay prescribed filing requested the Estate that refusing pay required again Estate, The after fee. fee, declaratory judgment action a commenced County seeking ruling court, circuit a Milwaukee 814.66(1)(a)2 was unconstitutional. personal petition Although filed Mrs. Stackner’s was that of the representatives, at stake in this case is the interest personal representa therefore refer to the Stackner estate. We will tives as the Estate. 814.66(l)(a), Stats., pertinent part: provides, in “(1) following register fees: shall collect the The “(a) whereby any proceeding filing petition in estates of For commenced, gross persons if estate or value of the deceased $10,000 less, $10; gross
property if is more or a fee of estate $10,000, gross The the amount of the estate. than a fee of 0.1% of inventory filing paid of the other fees shall be at the time proceedings.” setting estate in the forth the value of the documents *5 Following trial, the court found sec. applied on unconstitutional both face its and as reaching conclusion, In Stackner estate. its findings. According
court made a number factual performed by register pro- court, the services regardless are same bate of the size the testator’s Furthermore, estate. the amount of work to administer approximately an uncontested estate is the same in a large typical probate small as in a estate estate. A file, involving contest, not involves a number of documents statutorily required complete which are in order to regardless estate; those documents are the same of the Additionally, gen- size of the estate. the volume of work required erated Estate be would in all estates regardless of size valuation. findings above, on
Based
the court in its
of fact
and conclusions
law stated that there was “no neces-
sary
paid
correlation between the sums
[under
to be
814.66(1)(a),
(widely
Stats.]
different
amounts with
values)
respect to estates of different
and the nature of
proceedings,
or the character or extent of the ser-
may
required
probate system.”
vices which
be
necessary
Because the court
no
concluded there was
(rational relationship)
correlation
between the fees
charged
administering
and the cost to the court in
an
estate, the court ruled that sec.
uncon-
was
(1)
purchase
justice
stitutional
it constituted a
prohibited
as
under Article
Section of the Wisconsin
(2)
pro-
Constitution; and
it violated the constitutional
protection”
“equal
tections of
under Article Section 1
of the Wisconsin Constitution and the fourteenth
amendment of the United States Constitution. On
joined by
13, 1986,
Estate,
March
Milwaukee
*6
appeals.
bypass
County,
petition
of
the court
filed a
April
petition
bypass
accepted
8,1986.
on
We
(1)
sec.
in this case
whether
determine
We must
equal protection guar-
814.66(1)(a), Stats., violates the
or the Federal
State Constitution
either the
antees of
(2)
and,
not,
if it does
whether sec.
Constitution
814.66(1)(a)
purchase
justice.
of
a
constitutes
determining
Stats., is
whether sec.
In
findings
evidentiary
constitutional,
of
the trial court’s
clearly
upheld
they
be
unless
are
historical facts will
701, 715,
Woods,
State v.
117 Wis. 2d
345
See
erroneous.
(1984).
holding
However,
court’s
the trial
N.W.2d 457
question
is unconstitutional is a
of
sec.
that
give
law,
the trial
we do not
deference to
and thus
Ludwig,
600,
State v.
124 Wis. 2d
See
court’s decision.
(1985).
722
369 N.W.2d
constitutionality
reviewing
In
814.66(1)(a),
recognize
strong
Stats., we
that there is a
presumption
legislative enactment is constitu-
that a
Cissell,
v.
2d
378 N.W.2d
tional. State
Wis.
(1985).
constitutionality
challenges
party A
who
heavy
persuasion.
Our cases
of an act carries a
burden
respondent
enough “[i]t
make it clear that
is not
constitutionality nor is it
establish
as to the act’s
doubt
respondent
unconstitution-
establish the
sufficient that
Unconstitutionality
ality
probability.
of the act as a
beyond a reasonable
the act must be demonstrated
Every
indulged
presumption
to sustain
must be
doubt.
possible and,
as to
if
wherever doubt exists
the law at all
constitutionality,
legislative
must be
it
enactment’s
constitutionality.” State ex rel.
resolved
favor
Paper
32, 46,
Plante, 58
2d
Hammermill
Co. v. La
Wis.
(1973); County Portage Steinpreis,
“If
upon
there
reasonable
which
basis
may
legislation
rest,
constitutionally
the court must
legislature
assume that
had such fact in mind
pursuant
passed
the act
thereto. The court can
try
legislature
not
and reverse its decision as to
necessary
the facts. All facts
to sustain the act must
conclusively
be taken as
legislature,
found
if
any
may
reasonably
such facts
be
conceived
the court.” State ex rel. Carnation Milk
mind
Emery,
Products Co. v.
147, 160,
178 Wis.
189 N.W.
*7
Bank, Inc.,
State v. Interstate Blood
(1922);
564
65
482, 489, 222
(1974).
2dWis.
N.W.2d 912
begin by noting
disputed assessment,
We
that the
although designated
reality
in
statute,
a “fee”
is in
the
upon
disposition
upon
property
tax
the
of one’s
death.
previously
that,
This court has
held
the
where
amount
way dependent upon
of an
in
exaction is
no
the amount
provided by
judge
register
probate
of services
depends entirely upon
estate,
but
the valuation of the
then
is
the exaction a tax. The State ex rel.
Sanderson
(1890);
Mann,
469, 474-75,
76 Wis.
Having under held that exaction 814.66(1)(a), tax, Stats., constitutes a we note the constitutionality given presumption greater to tax repeatedly has stated: This court statutes. involved, presumption measure is a tax
“[WJhere
constitutionality
strongest.
courts have
The
essentiality
recognition to the
of taxation
given
society,
implicit
and there is
preserving an ordered
principle of
judicial
decisions that the
recognition
complete congruity
equality and
absolute
impossible
must
of classifications
treatment
preserving
gov-
in the interests
be sacrificed
Department
Simanco,Inc. v.
function.”
ernmental
Revenue,
47, 54, 203
2d 648
57 Wis. 2d
N.W.
Printing
Department
Revenuev. Moebius
(1973);
Co.,
N.W.2d 213
89 Wis. 2d
Supreme
recog-
Court has also
The United States
legislature
in the
as to tax
this broad discretion
nized
According
legislation.
taxation,
Court, “in
even
*8
great-
possess
legislatures
fields,
the
in
more than
other
Kentucky, 309
in
Madden v.
freedom classification.”
est
(1940).
Supreme
83,
Furthermore,
Court has
U.S.
88
recognized
taxation, whether the
“[n]o scheme of
that
property,
purchases
imposed
income,
of
or
tax is
on
yet
goods
of
services,
which is free
and
has
been devised
complex
discriminatory impact.
in
In
arena
such
all
perfect
exist,
Court does well
alternatives
which no
scrutiny
impose
rigorous
lest all
too
a standard
not to
66
fiscal
subjects
local
schemes become
of criticism under
Equal
Protection Clause.” San Antonio School Dis-
Rodriguez,
1,
(1973),
denied,
trict v.
reh’g.
411 U.S.
41
With we turn to the question now 814.66(1) (a), Stats., whether is unconstitutional because it guarantee violates constitutional of equal I, protection under either Article Section 1 of the Wis- consin Constitution3 the fourteenth amendment of the United States Constitution.4 We find that the classi- fication found unconstitutional the circuit court involves the class “probate litigants” - vary fees according to value of the estate.5 3 I, provides: Article Section 1 of the Constitution Wisconsin people equally independent, “All are born free and have certain life, rights; among liberty pursuit hap inherent these are and the piness; rights, governments instituted, deriving to serve these are just powers governed.” from their the consent previously interpreted
haveWe
Article Section 1 of the Wis-
provide rights substantially
consin Constitution to
similar to those
protected
now
the fourteenth amendment of the United States
Pauly Keebler,
428, 430-31,
Constitution.
Wis.
175
fund from damages percentage on A tax based exists. such ascertainable fund litigants tax which subject aggrieved to a in a tort case would claimed “all seeking in court. Because prohibit redress might them from situated, equal protection similarly is no litigants” there are thus not dissimilarly. reject violation, they We therefore if treated even are upon circuit court held litigants” which the as the classification “all unconstitutional. *10 similarly, equal protection treated situated are no viola- probate tion occurs. Because we conclude that all liti- gants similarly similarly Wisconsin are situated and by treated, we hold that the tax exacted sec. 814.66(1)(a), equal protec- Stats., does not violate guarantees tion of either Wisconsin or the United States Constitutions. probate litigants
All have an estate ascertainable probate, through which, is distributed to the decedents’ beneficiaries, creditors, heirs or as well as and thus are similarly 814.66(1)(a) situated. Under sec. all estates probate, except entering portion subject that mortgages, equal liens and recorded are assessed a tax percent gross pur- estates, 0.1 estate.6 All for the poses calculating due, of the tax are decreased any duly unpaid amount of mortgages recorded filed and liens property. percent on real The 0.1 is then tax applied gross uniformly regardless estates, to all their paid equally by exaction, size. estates, This all taxes in proportion to the relative distributive benefits received probate judgment court, from the thus consti- probate litigants. Having tutes similar treatment of all probate litigants similarly that determined all are situ- similarly treated, ated and we conclude sec. that 814.66(1)(a) protection equal guar- does not violate the antees either the Wisconsin or United States Consti- tutions. assuming arguendo imposed
However,
tax
not treat
does
all
litigants equally, we nevertheless conclude that sec.
gross
$10,000,
a
is
$10
Where
estate
less than
a
is
flat tax of
tax,
estate,
charged.
although
percent
gross
This
it
exceeds 0.1
de minimis and does
rise to the
of a violation
not
level
guarantee
equal protection.
constitutional
previously
This court has
is constitutional.
analysis
evaluating
explained
a
to be used
statute
equal protection grounds.
challenged
“[U]nless a
on
right’
may
affect a ‘fundamental
or to
be said to
statute
‘suspect’ criterion,
a classification based on
create
reviewing
uses
the constitutional-
standard this court
statutory
ity
classification
the ‘rational basis’
of a
49, 54,
State,
89 Wis.2d
Under strict classification upheld only promotes compelling if the classification be narrowly government if interests and it is drawn to express only Wade, See Roe v. such interests. 410 U.S. (1973), reh’g. denied, 113, 410 959. 155 U.S. We find 814.66(1)(a), Stats., meets this test. that sec. imposed promotes compelling gov-
First, the tax a State, interest. As we noted in Nunnemacher v. ernment (1906), right 190, 201, to 129 Wis. 108 627 N.W. by recognized dispose property for a will has been by long right dispose property time. This of one’s will meaningless for effectu- would be without a mechanism 7 constitutional, presumed Although general rule a as a statute statutory presumption constitutionality disappears this if a classi McRae, class, Harris v. upon suspect fication is based 448 U.S. denied, reh’g. (1980), impinges upon a funda 448 U.S. Bolden, right, Mobile v. U.S. mental ating Having probate one’s will. established the court system primary providing as the means of for the orderly property death, fol- distribution of one’s after it government fund lows that the must raise revenues to system. We therefore conclude that taxation of precondition probate the use of an estate as a system promotes compelling government interest system. probate a funded 814.66(1)(a), Stats., if we look to see
Next narrowly purpose. drawn to achieve this system probate seeks to make the substan- tially self-sustaining paid by for those who use it by funding general than total from tax revenues rather public large. end, drawn from the at To that each estate a tax in relation to the extent to which the is assessed (through derives a benefit distribution of the decedent assets) probate system. judgment from the of the estate legislature, Under the means chosen probate users of the operating expenses toward the court contribute system only probate out of the distributed assets through imposing Furthermore, court. gross estate, into considera- the tax on the the tax takes *12 only having a decedent benefits not assets tion that by having also an flow to beneficiaries and heirs but outstanding orderly verification and satisfaction 814.66(1)(a) that sec. is debts.8 We therefore conclude compel- narrowly promote government’s drawn to the probate system. ling providing a interest mort in the estate allowed for recorded The reduction taxable gages property acknowledges mort on real the distinction between only gaged property nominal real where the decedent is often a generally which do not diminish the dece owner versus other debts ownership in his or her assets. dent’s interest 814.66(3), provides Stats., that sec.
The fact for the paying county collected, fees one-half all trea- general fund, surer and one-half to the state does not negate narrowly our conclusion that statute is safely drawn. We believe we can assume that the state county spend maintaining and the both more on 814.66(3). probate system than either receives under sec. require legislature pay money “pro- To to into a opposed general empha- fund,” fund, bate as ato would necessity size The form over substance. that a statute be narrowly require does drawn not such formalities. We 814.66(1)(a) therefore conclude that sec. does not violate equal protection guarantees of either the Wisconsin or United States Constitutions.
Having determined that protection equal guarantees does not violate the Constitutions, either the Wisconsin or United States we question now turn to of whether sec. purchase
unconstitutional because it constitutes a justice prohibited I, as under Article provides, I, Wisconsin Constitution. Article Section 9 pertinent part, “[e]very person ought ... to obtain justice freely, being purchase obliged and it, without to completely promptly denial, and without and without delay, conformably explain- court, to the laws.” This ing history meaning of Article Section has stated: provision very history
“That
old.
Its
dates
days
back
Magna
designed
Carta. It was
prevent
species
of official
as
exactions made
price
delaying
expediting justice.
the low-
From
himself,
times,
king
est officer to the
in the olden
freely
procure
bribes were
demanded and taken to
*13
They
the benefits of the laws.
bore no relation what
system
expenses
ever to our
litiga
exactions for
tion,
costs,
suits,
called
charge
or the
as a tax on
imposed
all;
equally upon
under laws which bear
but
they
arbitrary
were
exactions
sanctioned
times,
personal
manners of the
that went to the
ben
judicial
body controlling
efit of the
head or
the exe
law,
cution of the
or to servants or officers connected
abuse,
others,
among
therewith.
It was such
that the
England
King
barons of
forced
John to abolish
granting
Magna
following
Carta. It contained the
guaranteed
upon
as one
kingly pre
limitations
rogatives:
right
‘We will not sell the
justice
to
”
anyone,
it,
off.’ Chris
put
nor will we refuse
if
Co.,
tianson v. The Pioneer Furniture
101 Wis.
347-48,
(1898).
77 N.W.
The Estate since the fee relationship bears no direct to the services received probate, type the exaction of such a fee constitutes the proscribed by According I, of exaction Article Section 9. filing selling Estate, fee amounts to access to I, the court violation of Article Section 9. We find this unpersuasive. argument type earlier, As noted proscribed by exaction Article Section 9 is the exac- arbitrary personal tion of bribes for the enrichment of justice system. those who control and administer the requires that each estate *14 statutorily pay prior filing a uniform fee established to receiving probate the services the court. There is no any arbitrary bribing payments indicia of before an may justice. any partic- estate obtain The exaction from go personal any ular estate does not benefit of judiciary or to member servants or officers con- bargaining by There is nected therewith. no each estate paid entering probate. as to the fee to be before No if estate is left to wonder it bewill able to receive the benefit of the services court. We therefore by conclude that the tax exacted does justice not sell and thus does not violate Article Sec- tion 9 of Wisconsin Constitution.
Finally,
argues
right
that,
the Estate
because the
to
property by
right
transfer
will and the
of free access to
rights,
legislature
are
courts
constitutional
prohibited
taxing
rights.9
disagree.
from
these
First,
We
originally recognized
right
court,
this
when it
that “the
by
property pass
to demand that
inheritance or will is
rejected
right,”
an inherent
the contention that
this
right could not
Nunnemacher,
be taxed.
129 Wis. at
power
regulate
202-03. This court noted that the
to
and
right
tax “entered into and
modified
inherent
possess,
property,
transmit, and will
at the time adopted,
right
constitution was
so that the inherent
rec-
ognized
preserved the constitution was and is a
right subject
regulation
to reasonable
and taxation.” Id.
may
imposed upon
at 204. Thus a reasonable tax
be
right
dispose
property
of one’s
will. In this case the
charged
$12,106.07
tax of
to the Estate is one one-thou-
analysis
Our
right
the Estate’s claim of a constitutional
free
process.
access to the courts involves a consideration of due
See
Connecticut,
Boddie v.
By judgment the Court.—The of the circuit court is proceedings reversed and the cause is remanded for con- opinion. sistent with this {concurring). ABRAHAMSON,
SHIRLEY S. J. I *16 agree may upheld that the assessment in issue be as a join regarding equal pro- I tax. do not the dicta federal or tection art. secs. 1 and 9 of the Wisconsin Constitu- tion. 814.29(1), Stats., provides, pertinent part: “Any
person may any proceeding any commence ... action court... being required fee, pay any upon without filing to ... service or court, court, receiving approval affidavit his or her poverty person affidavit that because of his or is her unable pay proceeding.” costs of the action or Access court involving right subject a fundamental to the same rule whether service, fee, exaction identified as a or tax.