                                                              2017 WI 79

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2015AP1523
COMPLETE TITLE:         Vincent Milewski and Morganne MacDonald,
                                   Plaintiffs-Appellants-Petitioners,
                             v.
                        Town of Dover, Board of Review for the Town of
                        Dover and Gardiner Appraisal Service, LLC as
                        Assessor for the Town of Dover,
                                   Defendants-Respondents.
                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 370 Wis. 2d 262, 881 N.W.2d 359
                                       (2016 – Unpublished)

OPINION FILED:          July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 19, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Phillip A. Koss

JUSTICES:
   CONCURRED:           ROGGENSACK, C.J. concurs (opinion filed).
                        ZIEGLER, J. concurs, joined by GABLEMAN, J.
                        (opinion filed).
  DISSENTED:            ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
                        J. (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:
       For        the   plaintiffs-appellants-petitioners,   there   were
briefs filed by Richard M. Esenberg, Brian W. McGrath, Thomas C.
Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee,
and oral argument by Richard M. Esenberg.


       For the defendants-respondents Town of Dover and Board of
Review for the Town of Dover, there was a brief filed by Dustin
T. Woehl, Jason P. Gehring, and Kasdorf Lewis & Swietlik, SC,
Milwaukee, and oral argument by Jason P. Gehring.
    For     the   defendant-respondent    Gardiner   Appraisal   Service,
LLC, there was a brief filed by Mitchell R. Olson and Axley
Brynelson, LLP, Madison, and oral argument by Timothy M. Barber.


    An amicus curiae brief was filed on behalf of Institute for
Justice by Lee U. McGrath and Meagan A. Forbes and Institute for
Justice, Minneapolis.


    An amicus curiae brief was filed on behalf of Wisconsin
REALTORS®    Association    by   Thomas    D.   Larson   and     Wisconsin
REALTORS® Association, Madison.




                                   2
                                                                                2017 WI 79

                                                                       NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.      2015AP1523
(L.C. No.   2014CV1482)

STATE OF WISCONSIN                                  :             IN SUPREME COURT

Vincent Milewski and Morganne MacDonald

               Plaintiffs-Appellants-Petitioners,                          FILED
       v.
                                                                       JUL 7, 2017
Town of Dover, Board of Review for the Town of                           Diane M. Fremgen
Dover, and Gardiner Appraisal Service, LLC, As                        Clerk of Supreme Court
Assessor for the Town of Dover,

               Defendants-Respondents.




       REVIEW of a decision of the Court of Appeals.                       Reversed and

cause remanded.



       ¶1      DANIEL    KELLY,    J.      Vincent          Milewski     and      Morganne

MacDonald (collectively, the "Milewskis") own a home in the Town

of    Dover.      They    want    to    challenge       a   tax   assessor's        recent

revaluation of their property.               But they also want to prevent

the tax assessor from inspecting the interior of their home as a

part of that process.             The Town says our statutes require them
                                                                          No.    2015AP1523



to pick one or the other because they cannot do both.1                                 The

Milewskis ask us whether the Town can put them to this choice.2

                                       I.     BACKGROUND

       ¶2        The Milewskis bring us a discrete question, but we see

that       the    answer     will      play     out     against   an    intricate      and

delicately        balanced       set    of    tax     statutes    and   constitutional

provisions.          Although the following background provides little

more than a broad sketch of Wisconsin's system of real property

taxation, it should be enough to place the Milewskis' question

in an understandable context.

                        A. Wisconsin's tax assessment scheme

       ¶3        Article VIII, section 1 of the Wisconsin Constitution,

known as the Uniformity Clause, requires the uniform taxation of

real       property,3      and   Wis.       Stat.     ch. 70   provides    the    general

       1
       We will collectively refer to all the respondents as the
"Town," unless the context requires otherwise.
       2
       We review the unpublished decision of the court of
appeals, Milewski v. Town of Dover, No. 2015AP1523, unpublished
slip op. (Wis. Ct. App. May 4, 2016), affirming the Racine
County circuit court's order dismissing the Milewskis' claims
(the Honorable Phillip A. Koss, presiding).
       3
           The Uniformity Clause provides that:

       The rule of taxation shall be uniform but the
       legislature may empower cities, villages or towns to
       collect and return taxes on real estate located
       therein by optional methods.   Taxes shall be levied
       upon such property with such classifications as to
       forests and minerals including or separate or severed
       from the land, as the legislature shall prescribe.
       Taxation of agricultural land and undeveloped land,
       both as defined by law, need not be uniform with the
       taxation of each other nor with the taxation of other
                                                      (continued)
                                                2
                                                                           No.     2015AP1523



procedure    by     which    municipalities         carry      out   this        duty.    In

Wisconsin, "[r]eal property shall be valued by the assessor in

the manner specified in the Wisconsin property assessment manual

provided under [Wis. Stat. § 73.03(2a)] from actual view or from

the   best        information        that     the    assessor        can     practicably

obtain . . . ."            Wis.   Stat.       § 70.32(1)       (2015-16)4         (emphasis

added).     The Wisconsin Property Assessment Manual provides that

"[i]n the case of real property, actual view requires a detailed

viewing    of     the     interior    and     exterior      of   all   buildings         and

improvements and the recording of complete cost, age, use, and

accounting        treatments."         Wis.       Dep't   of     Revenue,         Wisconsin

Property Assessment Manual, 10-55 (2017).

      ¶4     If     the     property        owner   is    dissatisfied            with   the

assessor's valuation, he may bring his objection to the local




      real property. Taxation of merchants' stock-in-trade,
      manufactures' materials and finished products, and
      livestock need not be uniform with the taxation of
      real property and other personal property, but the
      taxation   of  all   such   merchants'   stock-in-trade,
      manufacturers' materials and finished products and
      livestock   shall   be    uniform,   except   that   the
      legislature may provide that the value thereof shall
      be determined on an average basis. Taxes may also be
      imposed on incomes, privileges and occupations, which
      taxes may be graduated and progressive, and reasonable
      exemptions may be provided.

Wis. Const. art. VIII, § 1.
      4
       All subsequent references to the Wisconsin statutes are to
the 2015-16 version unless otherwise indicated.


                                              3
                                                                             No.         2015AP1523



board of review.             Wis. Stat. § 70.47(7)(a).5                     He may do so,

however, only after he has first allowed a tax assessor to view

his property:

       No person shall be allowed to appear before the board
       of review, to testify to the board by telephone or to
       contest the amount of any assessment of real or
       personal property if the person has refused a
       reasonable written request by certified mail of the
       assessor to view such property.
Wis. Stat. § 70.47(7)(aa).                 At the board of review hearing, the

owner may present evidence in support of what he believes to be

the proper valuation.                  Wis. Stat. § 70.47(8).                Based on that

evidence, the board of review decides whether to adjust the

assessor's valuation.              Wis. Stat. § 70.47(9)(a).                    If the owner

disagrees with the board of review's conclusion, he may seek

certiorari review by the circuit court.                       Wis. Stat. § 70.47(13).

       ¶5      Some   property          owners,       however,     may     want      a    circuit

court,      rather    than       the    town's       board   of    review,      to       make   the

initial      determination         of    whether       the    assessor's        valuation        is

accurate.           Such    an    owner     may       file    a    claim     for     excessive

assessment in the circuit court under Wis. Stat. § 74.37(2).                                     He

must       still,    however,      follow        the    pre-hearing        procedures           for

challenging         the    valuation       before       the       board    of     review,       as

outlined above:            "No claim or action for an excessive assessment

may be brought under this section unless the procedures for

       5
       Each town creates its own                      board of review.    The town's
common council decides who sits                      on the board, but the members
typically include the mayor, town                     clerk, and such other officers
as the council should designate.                     See Wis. Stat. § 70.46(1).


                                                 4
                                                                                      No.    2015AP1523



objecting         to        assessments             under         [§] 70.47 . . . have               been

complied with."                   Wis. Stat. § 74.37(4)(a).                     After completing

these pre-hearing procedures, the owner asks the board of review

for a hearing waiver.                     Wis. Stat. § 70.47(8m).                    Once granted,

the owner may file his complaint in the circuit court.

            B. The Town of Dover Revalues the Milewskis' Property

       ¶6        In    2013,        the       Town       of       Dover     reassessed       all      the

properties        in        its    jurisdiction             and     contracted       with     Gardiner

Appraisal Service, LLC ("Gardiner") to assign a value to each

such property.               Gardiner's attention eventually turned to the

Milewskis' home (the "Property"), which had a pre-2013 assessed

value       of    $273,900,             and   an     estimated           fair   market       value    of

$277,761.         Gardiner sent the Milewskis a notice stating that it

"must    view         the    interior         of    your         property    for     the    Town     wide

revaluation           program           which      is       in    progress"     and        that    "[a]n

assessor will stop to view your property on Tues, Aug 20 at 6:10

pm."

       ¶7        When the assessor arrived, Ms. MacDonald invited him
into    their         yard        and    told      him      he     was    welcome     to     view     the

Property's exterior; however, she further informed him he would

not    be    allowed         inside       the      home.          The     assessor    declined       Ms.

MacDonald's invitation to view the Property's exterior and left

without asking her any questions about the Property.

       ¶8        A few months later, the Milewskis received a certified

letter from Gardiner stating that the assessor had not "viewed

the interior of your buildings" and asked that they schedule a
time for him to do so.                        The Milewskis sent the Town a letter
                                                        5
                                                               No.       2015AP1523



objecting to the requested interior inspection.                Gardiner made

no further attempt to view the interior of the Property and

assessed it at a value of $307,100——a 12.12 percent increase

from the previous assessment of $273,900.6

     ¶9   After     learning   of    the   new   assessment,       Mr.   Milewski

attended open book sessions to review the assessed values of

other properties in the subdivision.7            Based on his research, Mr.

Milewski learned that of the 43 parcels in the subdivision, only

four properties, including the Milewskis', did not have their

interiors inspected during the 2013 assessment.                Of those four

properties,   all     four     saw   an    increase     in    their       initial

assessment.    The     other    39   properties      that    did    have    their

interiors inspected saw their assessed value decrease.                      After

receiving the initial assessments, the owners of two of the four

properties that had not had their interiors inspected allowed

Gardiner to conduct an inspection of their home's interior and

the assessments for those properties were then reduced.                     Thus,

the only two properties in the 43-parcel subdivision that saw an
increased assessment during the 2013 revaluation were those two

properties where the owners did not consent to Gardiner's view

of their home's interior.

     6
       The percentages we use throughout this opinion are those
reflected in the amended complaint.
     7
       Once the assessor has recorded the assessed values of the
town's property on the assessment rolls, the town clerk makes
the rolls available for public inspection during what is known
as "open book sessions." Wis. Stat. § 70.45.


                                      6
                                                                               No.    2015AP1523



        C. The Milewskis Protest the Revaluation of the Property

      ¶10     The    Milewskis       filed        an    "Objection        Form       for     Real

Property Assessment" with the Town, and about two weeks later,

they appeared at the November 25, 2013 Dover Board of Review

("BOR") hearing, where they intended to object to the assessment

of their Property.          However, because the BOR determined they had

refused "a reasonable request by certified mail of the assessor

to   view    [their]       property,"    the           BOR     refused    to     hear      their

objection.

      ¶11     The Milewskis paid their 2013 property taxes and filed

a Notice of Claim and Claim with the Town Clerk under Wis. Stat.

§ 74.37, alleging the Property assessment was excessive and that

the Town had violated their Fourth Amendment rights.                                  The Town

denied the Milewskis' claim by taking no action on it within 90

days.       See     Wis.    Stat.    § 74.37(3)(a).               The    Milewskis         later

followed the same procedure for their 2014 property taxes, with

the same result.

      ¶12     The    Milewskis      commenced          this    case     with    a     complaint
that included a claim for excessive assessment under Wis. Stat.

§ 74.37, and a claim that Wis. Stat. § 70.47(7)(aa) and Wis.

Stat.    § 74.37(4)(a),          as     applied          to      the     Milewskis,           are

unconstitutional           because    they         conditioned          their        right     to

challenge the assessor's valuation of the Property on submission

to a search of their home.              The parties filed cross-motions for

summary judgment.            The circuit court granted the Town's, the

BOR's,      and   Gardiner's        motions       and        dismissed    the        Milewskis'


                                              7
                                                                             No.     2015AP1523



claims.      The court of appeals affirmed the circuit court, and we

granted the Milewskis' petition for review.

                                  II.    STANDARD OF REVIEW

       ¶13    Summary       judgment      is     appropriate      when       there    are    no

genuine disputes as to any material facts and the moving party

is entitled to judgment as a matter of law.                              See Wis. Stat.

§ 802.08(2).         We review a grant of summary judgment de novo,

applying the same methodology as the circuit court.                                Belding v.

Demoulin,     2014        WI 8,    ¶13,    352      Wis. 2d     359,    843    N.W.2d 373.

While our review is independent from the circuit court and court

of appeals, we benefit from their analyses.                             See Preisler v.

Gen.   Cas.       Ins.    Co.,    2014    WI 135,       ¶16,    360    Wis. 2d       129,   857

N.W.2d 136.

       ¶14    A    facial    challenge to a statute's constitutionality

also presents a question of law that we review de novo.                                Aicher

v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99,

613 N.W.2d 849.             We presume statutes are constitutional; the

party asserting the constitutional infirmity must establish its
argument beyond a reasonable doubt.                      State v. Wood, 2010 WI 17,

¶15, 323 Wis. 2d 321, 780 N.W.2d 63.

       ¶15    The        Milewskis       say     they    are     not     contesting         the

constitutionality of the statutes in question, only how they

were    applied      to     them.         In   such     a   challenge        there     is   no

presumption the statute has been applied in a constitutional

manner.      In re Gwenevere T., 2011 WI 30, ¶48, 333 Wis. 2d 273,

797    N.W.2d 854         ("neither      party     faces    a   presumption         that    the
statute      was     constitutionally              applied.").          We     assume       the
                                               8
                                                                 No.    2015AP1523



constitutionality of the statutes, and require the challenger to

prove the unconstitutional application of the statutes beyond a

reasonable doubt.       Soc'y Ins. V. LIRC, 2010 WI 68, ¶27, 326

Wis. 2d 444,      786   N.W.2d 385;         In   re     Gwenevere      T.,     333

Wis. 2d 273, ¶47 (In an "as-applied" challenge, "the presumption

that the statute is constitutional applies, just as it does in a

facial challenge.").

                               III. DISCUSSION

    ¶16     The Milewskis understand themselves to be on the horns

of a dilemma.      The Town told them they must either submit to a

tax assessor's inspection of the interior of their home or lose

the right to challenge the revaluation of their Property.                      The

Milewskis   say   the   Town    may   not    make     them   ransom    their   due

process rights with a search of their home.                    The Fourth and

Fourteenth Amendments, they say, protect the sanctity of their

home as well as their right to contest the Town's revaluation.8

Put to the choice between the two, the Milewskis opted not to

allow the tax assessor's inspection.                So the Board of Review
refused to hear their challenge.

    ¶17     The Town sees no dilemma.               Instead, it sees only a

polite request to enter a home to perform the reasonable task of

determining how much it is worth so that the Town may properly

allocate the tax burden, as contemplated by our statutes and the

    8
       The Fourth Amendment applies to the states through the
Fourteenth Amendment. See, e.g., State v. Kramer, 2009 WI 14,
¶18 & n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio,
367 U.S. 643 (1961)).


                                       9
                                                                            No.    2015AP1523



Wisconsin Constitution.                See Wis. Const. art. VIII, § 1; Wis.

Stat. § 70.01.         The Town readily admits the Milewskis may not

challenge their assessment if they do not grant the inspection

request.     But it maintains that a tax assessor's "viewing" of

the interior of the Milewskis' property is not a "search" within

the meaning of the Fourth Amendment.                       Even if such a viewing

constitutes a search, the Town says, it is either self-evidently

reasonable,       or   it    is     exempted        from   the    Fourth      Amendment's

operation    by    the      "compelling       'special'        need    to    look    inside

people's homes" to satisfy the constitutional requirement that

taxation of all properties in the Town be uniform.                                   In any

event, the Town says, one of the alleged horns is missing, so

there can be no dilemma.

    ¶18     The task before us is straightforward.                      First, we must

determine     whether         the       Milewskis'         situation        affects      the

constitutionally-protected              rights      they   asserted.          So    we   will

examine whether there is a due-process right to contest a tax

assessor's     valuation          of   real    property,         and   whether       a   tax
assessor's nonconsensual, warrantless inspection of the interior

of a home would be an unreasonable search.                             Second, if this

situation really does implicate two constitutionally-protected

rights, we will inquire into whether the exercise of one can be

conditioned on surrender of the other.                         And finally, if this

conditioning      is   impermissible,              we   must   determine      whether     it

results from an inexorable statutory command, or is instead the

result of how the Town applied the statutes to the Milewskis.


                                              10
                                                                         No.    2015AP1523


                    A.      Rights Claimed by the Milewskis

                                   1. Due Process
      ¶19     The Milewskis were unable to challenge the revaluation

of their Property before the Board of Review because the Town

said Wis. Stat. § 70.47(7)(aa) rebuffs all those who do not

first submit to a tax assessor's inspection of the interior of

their homes.        And they found the courthouse doors barred because

Wis. Stat. § 74.37(4)(a) requires them to follow the procedural

requirements of § 70.47, including the interior home inspection,
before filing an excessive assessment claim.                           So their taxes

have increased, but without any corresponding opportunity for

administrative or judicial review of the added burden.

      ¶20     The Milewskis say the Town may not impose a tax that

is not ultimately subject to judicial review without violating

their due-process rights.              A due-process challenge requires the

complainant to establish two components.                      First, she must prove

she   has    been    deprived    of    a     recognized       right.      Aicher,       237

Wis. 2d 99, ¶80.            And second, she must prove that she has not

been afforded process commensurate with the deprivation.                                Id.
The   focus    of    such     claims    is    not      on   whether    the     State   may

infringe the right in question, but whether it has engaged the

proper      procedure    in    doing    so.         "In     procedural    due    process

claims, the deprivation by state action of a constitutionally

protected interest in 'life, liberty, or property' is not in

itself      unconstitutional;          what       is    unconstitutional         is     the

deprivation of such an interest without due process of law."
Zinermon      v.     Burch,      494       U.S. 113,         125   (1990).             This

                                             11
                                                                                     No.    2015AP1523



constitutional           guarantee           protects           an     individual          from    the

erroneous exercise of the State's authority.                                       "Procedural due

process      rules       are      meant         to    protect         persons . . . from            the

mistaken       or       unjustified          deprivation             of    life,      liberty,      or

property."          Carey v. Piphus, 435 U.S. 247, 259 (1978).                                    "Such

rules 'minimize              substantively unfair or mistaken deprivations

of' life, liberty, or property by enabling persons to contest

the    basis      upon       which      a    State        proposes        to   deprive      them    of

protected interests."                Id. at 259–60.

       ¶21     The      United     States        Constitution             specifically       extends

the guarantee of due process to the deprivation of property:

"No state shall . . . deprive any person of life, liberty, or

property,      without         due      process           of   law . . . ."           U.S.     Const.

amend.    XIV,       § 1.         Our       Wisconsin          constitution         provides      that

"[a]ll people are born equally free and independent, and have

certain inherent rights; among these are life, liberty and the

pursuit of happiness; to secure these rights, governments are

instituted, deriving their just powers from the consent of the
governed."          Wis. Const. art. 1, § 1.                         Although the text of the

U.S.     and      Wisconsin          constitutional              provisions          differ,      they

"provide identical procedural due process protections."                                      Cty. of

Kenosha      v.     C    &    S   Mgmt.,         Inc.,         223    Wis. 2d 373,         393,    588

N.W.2d 236 (1999).

       ¶22     For constitutional purposes, a tax is a deprivation of

property:      "[E]xaction           of     a    tax       constitutes         a   deprivation      of

property . . . ."                    McKesson          Corp.     v.        Div.      of    Alcoholic
Beverages and Tobacco, Dept. of Business Regulation of Fla., 496
                                                     12
                                                                                 No.           2015AP1523



U.S. 18, 36 (1990).               Consequently, a state imposing a tax "must

provide     procedural         safeguards          against         unlawful       exactions            in

order to satisfy the commands of the Due Process Clause."                                        Id.

      ¶23    We know the nature of these safeguards well:                                            "The

elements of procedural due process are notice and an opportunity

to be heard, or to defend or respond, in an orderly proceeding,

adapted to the nature of the case in accord with established

rules."      State v. Thompson, 2012 WI 90, ¶46, 342 Wis. 2d 674,

818 N.W.2d 904 (quoting 16C C.J.S. Constitutional Law § 1444, at

188 (2005)); see also Penterman v. Wis. Elec. Power Co., 211

Wis. 2d 458, 474, 565 N.W.2d 521 (1997) (Due Process "entitles

the   individual        to    a    fair    opportunity          to      present       his       or    her

claim.").          The       review       must     be       "adequate,         effective,             and

meaningful."            Bounds      v.     Smith,       430     U.S.      817,      822         (1977),

overruled     in    part      on    other        grounds      by     Lewis     v.      Casey,         518

U.S. 343    (1996).           Whether       the       process      is    pre-deprivation               or

post, it must certainly occur:

      [W]e have described the root requirement of the Due
      Process Clause as being that an individual be given an
      opportunity for a hearing before he is deprived of any
      significant property interest, . . . [but] it is well
      established   that    a   State   need    not   provide
      predeprivation process for the exaction of taxes.
McKesson Corp., 496 U.S. at 37 (internal citations and marks

omitted).

       ¶24 The          Milewskis         have     been       subjected          to        a     tax——a

deprivation        of    property——but            they       have       been    forbidden              any

process     by   which       to    challenge          it.      So,      absent        an       adequate
explanation for how this came to pass, they have been denied

                                                 13
                                                             No.   2015AP1523



their Fourteenth Amendment due-process rights.9             The Town says

there    has   been   no   violation   because   the   Milewskis   made   the




    9
         The dissent says one must keep "two realities firmly in
mind":

    ¶126 One. The Town's assessor did not enter                    the
    interior of the Milewskis' home. No search of                  the
    Milewskis' home occurred.

                              * * *

    ¶128 Two, the Milewskis have received full due process
    hearings in three courts——in the circuit court, in the
    court of appeals, and in this court. Furthermore, the
    Milewskis retained and exercised rights under the
    statutes to a hearing in which they challenged the
    assessment on specified grounds.

     Dissent, ¶¶125-26, 128. The first of these "realities" is
important only if the second is true. It is not.

      The Board of Review, relying on Wis. Stat. § 70.47(7)(aa),
denied the Milewskis' request to appear and present their
challenge to the reassessment because they had refused the home
inspection.   The circuit court did not address the assessment
because it concluded there was no constitutional violation in
requiring the Milewskis to allow a home inspection as a
precondition to its challenge.    The court of appeals reviewed
and affirmed this determination.     And we are addressing the
constitutionality of the statutory scheme, not the assessment of
the Milewskis' home. So at no time have the Milewskis been able
to present their excessive assessment claim to any tribunal.

     Not even the Town attempted the dissent's contra-factual
argument. Instead, it candidly acknowledged that the Milewskis
lost the right to challenge their assessment by refusing the
home inspection, stating, for example, that "the result of this
refusal is that they [the Milewskis] would be unable to
challenge the assessment."      The dissent's position is not
supported by the facts or the Town itself.

                                                               (continued)
                                       14
                                                                       No.     2015AP1523



affirmative    decision      to   deny      the    tax    assessor       an    interior

inspection    of    their    home.      Foreclosing       an     administrative         or

judicial review of the revaluation, they say, is the "legal,

logical,    and    natural    result"       of     that   decision,          for   to   do

otherwise would be "inconsistent with well-established law on

the property owner's burden of proof because the homeowner has

the affirmative burden of proving that the fair market value is

different than the assessor's determination being challenged."

Thus,   "[w]ithout     putting       the    interior      of     their       home——which

comprises    about    70%    of   its      value——into     evidence,"          the   Town

concludes, "the homeowners logically, and equitably, cannot meet

their burden of proving the fair market value is different from

what the assessor determines."

      ¶25   This argument conflates two important, but distinct,

principles.       The right to a hearing is not the same thing as the

burden of proof one must satisfy by the end of that hearing.

Nor do the concepts protect the same interests.                              The former

ensures access to a neutral magistrate to resolve disputes and
is   constitutionally       guaranteed.           The   latter    is     a    prudential

recognition that he who seeks to change the status quo must




     So the most that can be said of the dissent's argument is
that the Milewskis have been able to litigate whether they
should be allowed to litigate the new tax assessment. That, of
course, is not the same thing as actually challenging the tax
assessment, as even the Town admits.


                                           15
                                                                   No.    2015AP1523



overcome its inertia, and is subject to adjustment based on

policy considerations.10

      ¶26    We agree with the Town that the Milewskis must be

prepared to offer evidence sufficient to overcome the assessor's

conclusion if they hope to change the Property's valuation.                       A

challenger must "in good faith present[] evidence to such board

[of   review]       in   support    of   such   objections   and    [make]     full

disclosure before said board, under oath of all of that person's

property liable to assessment in such district and the value

thereof."       Wis.      Stat.    § 70.47(7)(a).         This   obligation      is

significant because the assessor's valuation is presumptively

correct.      Wis. Stat. § 70.47(8)(i) ("The board shall presume

that the assessor's valuation is correct. That presumption may

be rebutted by a sufficient showing by the objector that the

valuation is incorrect."); Wis. Stat. § 70.49(2) ("The value of

all   real    and    personal      property     entered   into   the     assessment

      10
           As we noted in State v. Big John:

      The question of which party has the burden of proof on
      this issue is determined by the application of the
      five-factor analysis outlined in McCormick, Handbook
      of the Law of Evidence, § 337 at 787-89 (2d ed. 1972),
      and adopted by this court in State v. McFarren, 62
      Wis.2d 492, 499-503, 215 N.W.2d 459 (1974). The five
      factors to be considered are:        (1) the natural
      tendency to place the burden on the party desiring
      change; (2) special policy considerations such as
      those disfavoring certain defenses; (3) convenience;
      (4) fairness; and (5) the judicial estimate of
      probabilities.

State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988).


                                          16
                                                     No.   2015AP1523



roll . . . in all actions and proceedings involving such values,

[is] presumptive evidence that all such properties have been

justly and equitably assessed in proper relationship to each

other.").     We express no opinion on whether the Milewskis will

be able to carry their burden of proof upon the contest of the

Property's value, but that has nothing to do with whether they

have the right to hazard the attempt.     The Milewskis may not be

denied due process with respect to the revaluation of their

Property.11

               2.   Freedom From Unreasonable Searches
     ¶27    We next determine whether a tax assessor's warrantless

inspection of the interior of a home would be an unreasonable

search.     On this subject, the Fourth Amendment to the United

States Constitution says:

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable

     11
       The dissent is concerned we are restoring the Milewskis'
due-process rights without penalizing them for exercising their
Fourth Amendment rights. Dissent, ¶183 ("According to the lead
opinion, a property owner can, without any adverse consequences,
refuse an assessor an actual view of the real property and
apparently can still contest the amount of the assessment.")
First, the suggestion that someone should be penalized for
exercising his constitutionally-protected rights is more than a
little chilling.   And second, we have not said the Milewskis
will not suffer adverse consequences from refusing the home
inspection. As this paragraph recognizes, their choice may have
created substantial impediments to successfully challenging the
Town's reassessment.     However, the consequences are not a
penalty for exercising their rights, but are instead the
potential result of applying required evidentiary standards to
their claim.


                                 17
                                                                             No.     2015AP1523


       searches and seizures, shall not be violated, and no
       Warrants shall issue, but upon probable cause,
       supported by Oath or affirmation, and particularly
       describing the place to be searched, and the persons
       or things to be seized.
U.S. Const. amend. IV.                     Its Wisconsin counterpart, found in

Article      I,    section       11        of    the     Wisconsin      Constitution,12       is

substantively            identical,             and    we       normally    interpret        it

coextensively            with        the        United      States       Supreme         Court's

interpretation of the Fourth Amendment.13                            See, e.g., State v.

Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing
State       v.    Arias,        2008       WI 84,        ¶20,     311   Wis. 2d 358,         752

N.W.2d 748).

       ¶28       The constitutionality of a tax assessor's inspection

of   the     interior      of    a    home       turns    on    three   questions.       First,

whether the inspection is a search at all within the meaning of

the Fourth Amendment.                Second, whether the inspection (if it is

a    search)      fits    within       a    recognized          exception   to     the    Fourth

Amendment's operation.                 And third, if no recognized exception

covers the inspection, whether it is nonetheless reasonable.




       12
       "The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the persons
or things to be seized." Wis. Const. art. I, § 11.
       13
       Our references to the Fourth Amendment throughout this
opinion also encompass Article 1, sec. 11 of the Wisconsin
Constitution unless otherwise noted.


                                                  18
                                                                                No.     2015AP1523




                     a.      Is an "Interior View" a "Search"?
       ¶29     Whether a tax assessor's "viewing" has constitutional

significance depends on what the term "search" meant at the time

of the Fourth Amendment's adoption.                         Kyllo v. United States, 533

U.S. 27, 34 (2001) (The court must "assur[e] preservation of

that degree of privacy against government that existed when the

Fourth       Amendment          was     adopted.").              To    obtain      a     baseline

understanding of what manner of intrusion comprises a "search,"

the United States Supreme Court recently had reference to the

English case of Entick v. Carrington.14                               See United States v.

Jones, 565 U.S. 400, 404-05 (2012).                             The Court had previously

described       this       case       (Entick)        as    a    "'monument        of     English

freedom'"       that      was     "undoubtedly         familiar         to    every      American

statesman       at     the       time    the     Constitution           was     adopted,        and

considered       to        be     the     true        and       ultimate      expression          of

constitutional            law . . . ."           Brower         v.    Cty.    of       Inyo,    489

U.S. 593, 596 (1989) (internal marks omitted) (quoting Boyd v.

United       States,      116    U.S. 616,       626       (1886)     (overruled        on     other
grounds).

       ¶30     In Entick, the Jones Court found a close connection

between "searches" and the law of trespass.                             Jones, 565 U.S. at

405.        There, Lord Camden admonished that "'[o]ur law holds the

property of every man so sacred, that no man can set his foot

upon his neighbour's close without his leave; if he does he is a


       14
            95 Eng. Rep. 807 (C.P. 1765).


                                                 19
                                                                 No.     2015AP1523



trespasser, though he does no damage at all; if he will tread

upon    his    neighbour's    ground,    he    must   justify   it     by   law.'"

Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).15

With that principle in mind, the Jones Court had no difficulty

concluding a search occurred when government agents attached a

tracking device to an individual's automobile.                  Id. at 404-05.

When "[t]he Government physically occupie[s] private property

for the purpose of obtaining information[,]" the Court said,

there is "no doubt that such a physical intrusion would have

been considered a          'search'    within the meaning of the Fourth

Amendment when it was adopted."               Id. at 404; State v. Sobczak,

2013 WI 52, ¶12, 347 Wis. 2d 724, 833 N.W.2d 59 (same).16

       ¶31    When the government proposes to enter a home to obtain

information relevant to levying a tax, we have even more precise

historical guidance at hand.            "In order to ascertain the nature

of   the     proceedings    intended    by    the   fourth   amendment      to   the

constitution       under     the   terms      'unreasonable     searches         and

seizures,' it is only necessary to recall the contemporary or


       15
       Trespass, of course, is not the only government intrusion
that can cause a Fourth Amendment violation.    United States v.
Jones, 565 U.S. 400, 411 ("we do not make trespass the exclusive
test" for identifying a Fourth Amendment violation).
       16
       "It has long been established that the Fourth Amendment
places the greatest protection around the home, as it was
drafted in part to codify 'the overriding respect for the
sanctity of the home that has been embedded in our traditions
since the origins of the Republic.'"        State v. Sobczak,
2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Payton
v. New York, 445 U.S. 573, 601 (1980)).


                                        20
                                                                     No.   2015AP1523



then recent history of the controversies on the subject, both in

this country and in England."            Boyd, 116 U.S. at 624-25.           One of

those controversies, which still informs our view of the Fourth

Amendment, was the practice of granting revenue agents general

warrants to search homes for taxable items:

    "Vivid in the memory of the newly independent
    Americans were those general warrants known as writs
    of assistance under which officers of the Crown had so
    bedeviled   the   colonists.      The   hated   writs   of
    assistance   had    given   customs   officials    blanket
    authority to search where they pleased for goods
    imported in violation of British tax laws. They were
    denounced by James Otis as 'the worst instrument of
    arbitrary power, the most destructive of English
    liberty, and the fundamental principles of law, that
    ever was found in an English law book,' because they
    placed 'the liberty of every man in the hands of every
    petty officer.'       The historic occasion of that
    denunciation,    in    1761    at   Boston,   has     been
    characterized as 'perhaps the most prominent event
    which inaugurated the resistance of the colonies to
    the oppressions of the mother country.'"
Payton    v.    New   York,    445   U.S. 573,    583    n.21     (1980)    (quoting

Stanford v. Texas, 379 U.S. 476, 481–82 (1965) (quoting Boyd,

116 U.S. at 616, 625)).

    ¶32        This history tells us that, at the time the Fourth

Amendment was adopted, a "search" occurred when a government

agent    trespassed     on    private   property    in     pursuit    of   revenue-

raising information.           Our statutes preserve the home's sanctity

against revenue agents by making it clear that tax assessors

trespass if they enter a home without consent.                     See Wis. Stat.

§ 943.13(4m)(am)4.       (no       trespass    exemption    for    tax     assessors
entering   residences         or   buildings   within    curtilage);       see   also


                                         21
                                                                               No.     2015AP1523



Wis. Stat. § 70.05(4m) ("A property owner may deny entry to an

assessor if the owner has given prior notice to the assessor

that    the    assessor       may        not     enter    the    property       without        the

property owner's permission.").                        So, as Entick observed, and

Jones    confirmed,         if     a     tax     assessor       "'will      tread     upon     his

neighbour's ground, he must justify it by law.'"                                     Jones, 565

U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817).

       ¶33    This is not, however, how the Town views its proposed

inspection of the Milewskis' home.                       It sees the Fourth Amendment

primarily through a procedural lens in which the purpose for the

government agent's presence in the home is less significant than

the manner by which he came to be there.                               It says no search

takes place under these circumstances because the assessor sends

a   letter     that      provides         "advance       notice       to    homeowners       when

requesting       to    view        their       home      for    an    assessment,"        which

"explains the purpose behind the assessment, the right to refuse

the    request     and      the    consequences          of    that    refusal."         "[T]he

advance       notice[]      gives        the     homeowner       ample      opportunity         to
question the legitimacy, nature, and scope of the assessment."

The     interior      view        does     not     "involve       a    'true     search        for

violations,'"         and    there        are     no     "criminal         consequences        for

denying entry."             Instead, refusal "result[s] only in possible

financial consequences that the homeowner is informed of before

choosing" whether to allow the tax assessor entry to her home.

These     procedures,            and     their        attendant       limitations         on     a

government agent's discretion, inform the Town's conclusion that


                                                 22
                                                                                No.     2015AP1523



no search occurs when an assessor enters a home in search of

something to tax.

       ¶34     The Town's argument, however, gets a little ahead of

itself.       The question at this stage of the analysis is whether

the tax assessor would be performing a search within the meaning

of     the    Fourth     Amendment         by    viewing        the      interior          of    the

Milewskis' home.              Whether he gives advance notice of when the

viewing will occur, or provides assurance that refusing him an

audience will cause merely financial penalties, may or may not

have something to say about the reasonableness of a search, but

it   says     nothing       about    whether         his    "viewing"         belongs       in   the

Fourth Amendment "search" category.                         The Jones Court cast that

query    in    strictly        functional       terms,       declaring         that    a    search

occurs       when     "[t]he    Government           physically       occupie[s]            private

property for the purpose of obtaining information."                               565 U.S. at

404.     The formalities surrounding the viewing do not define what

the viewing actually is.

       ¶35     The Town offered Wyman v. James as an example of how a
government agent may enter a home without triggering a search

within       the    meaning     of   the    Fourth          Amendment.          400     U.S. 309

(1971).        The eponymous Mrs. James applied for, and received,

financial          benefits    under   the       federal       Aid       to    Families          with

Dependent Children program ("AFDC").                         Id. at 313-14.           The State

of   New      York,    in     administering           the    AFDC     program         for       state

residents,         required     periodic        home       visits   by    a    caseworker          to

ensure       the    beneficiaries      were       putting       program        funds        to   the
intended uses.           See id. at 313-16.                  Mrs. James filed a civil
                                                23
                                                                   No.    2015AP1523



rights   action     alleging      the   home    visits     were    searches    that

violated the Fourth Amendment.           Id. at 314-15.

       ¶36   The Supreme Court did not agree.              It acknowledged that

the visits had both "rehabilitative and investigative" aspects,

but brushed off the latter because it "is given too broad a

character    and    far   more    emphasis     than   it   deserves      if   it   is

equated with a search in the traditional criminal law context."

Id. at 317.        Concentrating instead on the consensual nature of

home   visits,     and    the    fact   that   withholding        consent     merely

stopped the flow of AFDC benefits, the Court found no search

within the meaning of the Fourth Amendment:

       We note, too, that the visitation in itself is not
       forced or compelled, and that the beneficiary's denial
       of permission is not a criminal act.    If consent to
       the visitation is withheld, no visitation takes place.
       The aid then never begins or merely ceases, as the
       case may be. There is no entry of the home and there
       is no search.
Id. at 317-18.        Underlining the importance of consent to its

analysis, the Court signaled that the home visits could become

searches should they lose their consensual nature:

       If however, we were to assume that a caseworker's home
       visit, before or subsequent to the beneficiary's
       initial qualification for benefits, somehow (perhaps
       because the average beneficiary might feel she is in
       no position to refuse consent to the visit), and
       despite its interview nature, does possess some of the
       characteristics of a search in the traditional sense,
       we nevertheless conclude that the visit does not fall
       within the Fourth Amendment's proscription. This is
       because it does not descend to the level of
       unreasonableness. It is unreasonableness which is the
       Fourth Amendment's standard.

Id. at 318.

                                        24
                                                                               No.   2015AP1523



       ¶37     Wyman   provides no assistance in determining whether

the    tax     assessor's        proposed      view       of     the    interior       of    the

Milewskis' home is a Fourth Amendment search.                                   It does not

actually define what manner of activity qualifies as a search

for Fourth Amendment purposes.                      Instead, it asks whether the

homeowner has excused the government agent from complying with

constitutional requirements at all.                        The Fourth Amendment, of

course,      does    not     prohibit     consensual           searches.         See,       e.g.,

Florida      v.     Bostick,     501     U.S. 429,         439    (1991)       ("The    Fourth

Amendment proscribes unreasonable searches and seizures; it does

not proscribe voluntary cooperation"); see also, United States

v.    Williams,      521   F.3d 902,       905      (8th    Cir.       2008)    ("Consensual

searches do not violate the Fourth Amendment . . . .").                                       The

Fourth    Amendment        is    no     barrier      to    consensual          searches      not

because      the    activity      is    not    a    search,       but    because       consent

removes the search from Fourth Amendment scrutiny.                                   So it is

only in the absence of consent that we need to determine whether

a    certain      activity      has    constitutional          significance.           Because
Wyman relied on consent as the decisional principle, it did not

explicitly        decide     whether     the       caseworker's         activity       in    Mrs.

James' home constituted a search.

       ¶38     The Town argues that if the Milewskis and Mrs. James'

situations are not sufficiently comparable, we should analogize

this case to an analogy employed by the Wyman Court:

       It seems to us that the situation is akin to that
       where an Internal Revenue Service agent, in making a
       routine civil audit of a taxpayer's income tax return,
       asks that the taxpayer produce for the agent's review

                                              25
                                                                      No.     2015AP1523


      some proof of a deduction the taxpayer has asserted to
      his benefit in the computation of his tax.      If the
      taxpayer refuses, there is, absent fraud, only a
      disallowance of the claimed deduction and a consequent
      additional tax.    The taxpayer is fully within his
      "rights" in refusing to produce the proof, but in
      maintaining and asserting those rights a tax detriment
      results and it is a detriment of the taxpayer's own
      making. So here Mrs. James has the "right" to refuse
      the home visit, but a consequence in the form of
      cessation of aid, similar to the taxpayer's resultant
      additional tax, flows from that refusal.    The choice
      is entirely hers, and nothing of constitutional
      magnitude is involved.
400 U.S. at 324.

      ¶39   This        analysis    offers       no     guidance      and,     indeed,

illustrates       the   limited    utility      of    recursive     analogies.       An

analogy is helpful when it illuminates a central proposition by

considering it in a different, but logically related, context.

Building one analogy on another risks shifting the focus from

the   central     proposition      to    something      peripheral,      as   occurred

here.     The Wyman Court employed the IRS analogy in determining

whether     the     caseworker's         home    visit        was   constitutionally

reasonable.       That is, it was not using the analogy to determine

whether the home visit was a search——it was assuming, as part of

its premises, that the visit was a search within the Fourth

Amendment's comprehension.              So when the Town asserts a "viewing"

is not a search because, like "the hypothetical plaintiff in the

[Wyman] Court's example, Milewski and MacDonald face no criminal

penalties    for    refusing       entry    into      their    home[;]   [t]he     only

consequence is a tax detriment of their own making," it builds

its foundation on the IRS analogy's premise that the visit was a
search.     Thus, the recursive analogies resulted in a petitio

                                           26
                                                                       No.       2015AP1523



principii      error   (positing       an        argument's       conclusion      in    the

premises).       Wyman's analogy, therefore, has nothing instructive

to say about whether an "interior viewing" is a search within

the meaning of the Fourth Amendment.

    ¶40     In    determining        whether       a   tax    assessor      conducts      a

constitutionally-significant search when viewing the interior of

a home, we apply the elegantly simple Jones formulation:                               If a

government agent occupies private property for the purpose of

obtaining    information,       he    is    conducting        a   search     within     the

meaning   of     the   Fourth    Amendment.            The    Town's       own   argument

confirms this would be a search.                 It is the Town's central point

that a tax assessor must physically enter the Milewskis' home to

conduct an interior view.             And by describing the viewing as "a

simple    requirement     that       taxpayers         disclose      the    information

relevant to the value of their home," the Town admitted the

purpose of the assessor's presence would be to obtain revenue-

related information.       Thus, a tax assessor who enters a home to

conduct an "interior view" occupies private property for the
purpose of obtaining information and is therefore conducting a

search within the meaning of the Fourth Amendment.

                 b.    Exception to the Fourth Amendment

    ¶41     The Town asserts that a tax assessor's search of a

home fits within the "special needs" exception to the Fourth

Amendment's protection.         It refers us to City of Indianapolis v.

Edmond for instruction.          531 U.S. 32 (2000).              There we find that

the United States Supreme Court has recognized a                             mélange     of


                                            27
                                                                   No.    2015AP1523



circumstances in which searches are constitutionally reasonable

even in the absence of individualized suspicion of wrongdoing:

      [W]e have upheld certain regimes of suspicionless
      searches where the program was designed to serve
      "special needs, beyond the normal need for law
      enforcement." See, e.g., Vernonia Sch. Dist. 47J v.
      Acton, 515 U.S. 646 (1995) (random drug testing of
      student-athletes); Treasury Emps. v. Von Raab, 489
      U.S. 656 (1989) (drug tests for United States Customs
      Service employees seeking transfer or promotion to
      certain positions); Skinner v. Ry. Labor Execs. Assn.,
      489 U.S. 602 (1989) (drug and alcohol tests for
      railway employees involved in train accidents or found
      to be in violation of particular safety regulations).
      We   have    also   allowed   searches     for   certain
      administrative    purposes    without     particularized
      suspicion of misconduct, provided that those searches
      are appropriately limited. See, e.g., New York v.
      Burger, 482 U.S. 691, 702–704 (1987) (warrantless
      administrative inspection of premises of "closely
      regulated" business); Michigan v. Tyler, 436 U.S. 499,
      507–509, 511–512 (1978) (administrative inspection of
      fire-damaged premises to determine cause of blaze);
      Camara v. Mun. Court of City and Cty. of San
      Francisco,     387     U.S. 523,      534–539     (1967)
      (administrative inspection to ensure compliance with
      city housing code).
Edmond, 531 U.S. at 37.          The Town asks us to add tax assessment

searches     to   this   potpourri    because     revenue   collection        is   a

"special need," and the search is "not aimed at all at criminal—

—or even civil code——enforcement."

      ¶42    Whatever the merits of those exceptions, the Town has

not directed our attention to any case suggesting that assessing

or   collecting     taxes   is    a   need   so   special   that     it    excuses

compliance with the Fourth Amendment.                Nor have we found any.

To   the    contrary,    G.M.    Leasing     Corp.   v.   United    States,     429
U.S. 338 (1977), teaches that the Fourth Amendment admits of no

                                        28
                                                                                No.        2015AP1523



"tax    revenue"       special    exception.             In    that          case,       the   Court

considered whether United States revenue agents could enter a

corporation's         business        offices      without         a     warrant         to     seize

various       books     and   records        useful      to        their      tax     collection

efforts.       See id. at 352-53.            The United States made an argument

similar to what the Town offers us:                      "The respondents argue that

there is a broad exception to the Fourth Amendment that allows

warrantless         intrusions        into   privacy          in       the    furtherance          of

enforcement of the tax laws."                   Id. at 354.             It also maintained

that "the history of the common law in England and the laws in

several      States     prior    to    the    adoption        of       the    Bill       of    Rights

support the view that the Fourth Amendment was not intended to

cover intrusions into privacy in the enforcement of the tax

laws."    Id. at 355.

       ¶43    After noting the government's unquestionable authority

to "lay and collect Taxes," the Court nonetheless recognized

that "one of the primary evils intended to be eliminated by the

Fourth Amendment was the massive intrusion on privacy undertaken
in the collection of taxes pursuant to general warrants and

writs    of    assistance."            Id.         The    Court         found       no     evidence

supporting       the     United       States'       assertion            that        the       Fourth

Amendment was historically understood as not reaching matters of

revenue.       Id.     ("We do not find in the cited materials anything

approaching the clear evidence that would be required to create

so   great     an     exception   to     the    Fourth        Amendment's            protections

against warrantless intrusions into privacy.").                                 So the Court
affirmed the Fourth Amendment's application to searches in aid
                                              29
                                                                         No.    2015AP1523



of tax revenues:             "The intrusion into petitioner's office is

therefore      governed       by    the    normal    Fourth      Amendment     rule   that

'except in certain carefully defined classes of cases, a search

of   private       property      without     proper    consent     is    "unreasonable"

unless it has been authorized by a valid search warrant.'"                            G.M.

Leasing Corp., 429 U.S. at 358 (quoting Camara, 387 U.S. at 528–

29).        The Supreme Court's reasoning neatly answers the Town's

argument,      and    so    we     decline    the    invitation     to     declare    that

administering the property tax statutes is a "special need" that

exempts      tax    assessment       searches       from   the    Fourth     Amendment's

proscriptions.17

             c.      Is an "Interior View" a Reasonable Search?

       ¶44    Because         the         Fourth      Amendment         forbids       only

"unreasonable"             searches,         we     must      determine        whether——

notwithstanding the inapplicability of any recognized exception

to the Fourth Amendment——it is nonetheless reasonable to require

homeowners to submit to a tax assessor's periodic inspection of

the interior of their homes.                 The basic framework of our inquiry
is as follows:

       Under our general Fourth Amendment approach we examine
       the totality of the circumstances to determine whether
       a search is reasonable within the meaning of the
       Fourth Amendment. Whether a search is reasonable is

       17
       The dissent justifies nonconsensual, warrantless home
inspections as an aid in administration of our property tax
laws. But the United States Supreme Court has already rejected
that rationale.   See G.M. Leasing Corp. v. United States, 429
U.S. 338 (1977).     The dissent does not explain how this
justification can co-exist with G.M. Leasing Corp.


                                              30
                                                                 No.    2015AP1523


    determined by assessing, on the one hand, the degree
    to which it intrudes upon an individual's privacy and,
    on the other, the degree to which it is needed for the
    promotion of legitimate governmental interests.
Samson v. California, 547 U.S. 843, 848 (2006) (internal marks

and citations omitted).        Because we are addressing the propriety

of a potential warrantless home search, we presume it would be

unreasonable and therefore unconstitutional.               "It is a 'basic

principle of Fourth Amendment law' that searches and seizures

inside a home without a warrant are presumptively unreasonable."

Payton, 445 U.S. at 586; see also Camara, 387 U.S. at 528-29

("[O]ne governing principle, justified by history and by current

experience, has consistently been followed:               except in certain

carefully defined classes of cases, a search of private property

without   proper   consent     is   'unreasonable'      unless   it     has    been

authorized   by    a   valid   search      warrant.")    (citing       Stoner    v.

California, 376 U.S. 483 (1964); United States v. Jeffers, 342

U.S. 48 (1951) overruled on other grounds by Rakas v. Illinois,

439 U.S. 128 (1978); McDonald v. United States, 335 U.S. 451

(1948); Agnello v. United States, 269 U.S. 20 (1925)).                        It is

the Town's burden to demonstrate a nonconsensual, warrantless

search of the Milewskis' home is reasonable even though it does

not fit within a recognized exception to the Fourth Amendment.

    ¶45    The Town does not say there is anything peculiar about

the Milewskis' home that requires an interior inspection.                        In

fact, its thesis is quite the contrary——it says that every home

in the Town of Dover must be open to a tax assessor's inspection
without any particularized demonstration of need.                Therefore, we


                                      31
                                                                No.      2015AP1523



understand the Town to be asking us to adopt a bright-line rule

that warrantless home searches, conducted by tax assessors in

conformance with       the requirements of Wis. Stat. ch. 70, are

reasonable as a matter of law.

    ¶46     The Town says such searches are reasonable for three

reasons.     First, they are useful in ensuring compliance with our

constitution's "Uniformity Clause."               Second, the intrusion is

relatively    minor.         And   third,   a    warrant   would   be     a    mere

formality,     which     demonstrates       such     searches      are        always

reasonable.
                        i.     The Uniformity Clause
    ¶47     The process by which Wisconsin municipalities raise

revenues makes a proper valuation of real property not just

important, but essential to fulfillment of the constitutional

command that "[t]he rule of taxation shall be uniform . . . ."

See Wis. Const. art. VIII, § 1.                 The process begins with the

municipality calculating how much revenue it needs from property

taxes.     See Jack Stark, The Uniformity Clause of the Wisconsin
Constitution, 76 Marq. L. Rev. 577 (1993).                 It then determines

the total value of taxable property in the jurisdiction.                   Id. at

577-78.    Finally, it sets the mill rate18 at a level that will
    18
       Investopedia defines mill rate as follows:      "The mill
rate, also referred to as the millage rate, is a figure
representing the amount per $1,000 of the assessed value of
property, which is used to calculate the amount of property tax.
The term 'millage' is derived from a Latin word meaning
'thousandth,' with 1 mill being equal to 1/1,000th of a currency
unit."              See      Mill       Rate,      Investopedia,
http://www.investopedia.com/terms/m/millrate.asp  (last visited
June 28, 2017).


                                       32
                                                               No.   2015AP1523



generate the required revenue.            Id. at 578.     A property owner

calculates his tax liability by multiplying the mill rate by the

assessed value of his property.            Id.    Raising or lowering the

assessed value of a particular property, therefore, does not

change the amount of revenue the municipality raises.                It simply

changes   the     allocation   of     the     tax     burden   amongst     the

municipality's property owners.            The purpose of the Uniformity

Clause is to ensure the tax burden is allocated proportionally

to the value of each person's property.               Gottlieb v. City of

Milwaukee,   33   Wis. 2d 408,      426,    147   N.W.2d 633    (1967)    (The

purpose of the uniformity clause            is    "to protect the citizen

against   unequal,   and   consequently      unjust    taxation."     (quoting

Weeks v. City of Milwaukee, 10 Wis. 186, 201 (1860)).

    ¶48    Satisfying the Uniformity Clause requires not just a

uniform tax rate, but a uniform method of determining the value

of the property to which that rate will apply.

    The act of laying a tax on property consists of
    several distinct steps, such as the assessment or
    fixing of its value, the establishing of the rate,
    etc.; and in order to have the rule or course of
    proceeding uniform, each step taken must be uniform.
    The valuation must be uniform, the rate must be
    uniform. Thus uniformity in such a proceeding becomes
    equality; and there can be no uniform rule which is
    not at the same time an equal rule, operating alike
    upon   all   the   taxable  property  throughout   the
    territorial limits of the state, municipality or local
    subdivision of the government, within and for which
    the tax is to be raised.
Knowlton v. Bd. of Supervisors of Rock Cty., 9 Wis. 410, 420-21

(1859).   Our statutes prescribe that uniform methodology:               "Real
property shall be valued by the assessor in the manner specified

                                     33
                                                                 No.     2015AP1523



in   the     Wisconsin    property     assessment    manual     provided      under

s. 73.03(2a) from actual view or from the best information that

the assessor can practicably obtain, at the full value which

could ordinarily be obtained therefor at private sale."                        Wis.

Stat. § 70.32(1).

       ¶49    The Town asserts its home searches are necessary to

carry out the Uniformity Clause mandate.                   It notes that the

Wisconsin Property Assessment Manual19 says "the assessor must

make    a    thorough,     detailed,    and    objective      viewing    of   each

property,     noting     relevant    characteristics     as    they     relate   to

physical      condition,    effective     age,    and   functional      utility."

Wis. Dep't of Revenue, Wisconsin Property Assessment Manual, 12-

20 (2017) (hereinafter "WPAM").               With respect to real property,

Gardiner says the Manual insists on an interior view of all

buildings:      "In the case of real property, actual view requires


       19
       The Wisconsin Property Assessment Manual is published by
the Wisconsin Department of Revenue as required by statute. The
manual must accomplish the following:

       The manual shall discuss and illustrate accepted
       assessment methods, techniques and practices with a
       view to more nearly uniform and more consistent
       assessments of property at the local level.           The
       manual shall be amended by the department from time to
       time to reflect advances in the science of assessment,
       court   decisions   concerning    assessment   practices,
       costs,   and    statistical    and    other  information
       considered   valuable   to  local    assessors   by   the
       department.


Wis. Stat. § 73.03(2a).


                                        34
                                                                            No.     2015AP1523



a detailed viewing of the interior and exterior of all buildings

and improvements and the recording of complete cost, age, use,

and accounting treatments."                    Id. at 10-55.        Gardiner also refers

to a number of appraisal guidelines emphasizing the importance

of interior inspections.

      ¶50       The    Town      and        Gardiner    are     likely     right    that     an

interior view of the Milewskis' home would be the most direct

method     of    obtaining            the    information      necessary     to     perform    a

revaluation.          But this is only one of the statutorily-prescribed

methods of developing a valuation:                            "Real property shall be

valued . . . from actual view or from the best information that

the   assessor             can   practicably          obtain . . . ."            Wis.   Stat.

§ 70.32(1) (emphasis added).                    The statute gives the assessor two

potential        sources         of    information       with      which    to     develop    a

valuation.            It    lists      those    sources       in   the   disjunctive,        and

suggests no preference for one over the other.20                                  The Manual

acknowledges and reflects these options.                            WPAM at 10-55 ("The

statutes require that real . . . property be valued from actual
view or the best information obtainable." (Emphasis added.)).




      20
       "[S]tatutory interpretation 'begins with the language of
the statute.    If the meaning of the statute is plain, we
ordinarily stop the inquiry.'"   State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 612 N.W.2d 659).


                                                 35
                                                                              No.    2015AP1523



So the plain meaning of the statute is that an assessor may

develop a valuation out of either source of information.21

       ¶51     The Town's actions, as well as other statutes, tell us

that     the    Uniformity         Clause       does     not      require      an     interior

inspection of the Milewskis' home.                     A homeowner has a statutory

right to deny a tax assessor entry, and an assessor who enters

anyway is a trespasser.                  See Wis. Stat. § 70.05(4m), Wis. Stat.

§ 943.13(4m)(am)4.              Yet, securing one's property against the tax

assessor does not grind the valuation mechanism to a halt, as

the Town itself demonstrated.                   The Town proved itself capable of

valuing      the    Milewskis'       home    notwithstanding            its   inability     to

perform an interior inspection.                  It may be that the valuation is

incorrect,         as    the    Milewskis       claim,      but   the    Town       presumably

sought       the        "best    information         that      the      assessor       [could]

practicably obtain", as allowed by Wis. Stat. § 70.32(1), and

developed the valuation accordingly.                        If proceeding under this

alternative was not consistent with the Uniformity Clause, then

the    Town    indicts          itself    for    violating        the    constitution       by
assigning a value to the Milewskis' home without an interior

       21
       The dissent says these really are not disjunctive
options, and spends most of its analytical space trying to empty
all meaning out of the second option into the first. But if the
second option really means nothing more than the first, then the
legislature acted frivolously when it added that option to the
statute.   See I Sandborn & Berryman Ann. Stats. (1889) § 1052.
We try not to treat legislative enactments as surplusage. State
ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633,
¶46 ("Statutory language is read where possible to give
reasonable   effect   to  every   word,   in   order  to   avoid
surplusage.").


                                                36
                                                                        No.    2015AP1523



inspection.      And if the Town based its valuation on something

other     than   an     "actual       view"     or    the      "best     information"

practicably available, it has not said what it was or where it

obtained the authority to do so.                Thus, the Town cannot argue,

without      contradicting       itself,       that    the      Uniformity          Clause

requires an interior inspection while simultaneously taxing the

Milewskis based on a valuation it developed without such an

inspection.

       ¶52   Finally,    if     the    Uniformity      Clause      does       not    allow

valuations based on the "best information" option (the option

the Town appears to have exercised), then the constitutionality

of Wis. Stat. § 70.32(1) becomes suspect.                    But no one has made

such    an   argument,    and       because    we    presume      our   statutes      are

constitutional, we will not indulge any such speculation.                             See,

e.g., In re Gwenevere T., 333 Wis. 2d 273, ¶46 ("Statutes are

generally     presumed     constitutional"            and    we    will       not     find

otherwise unless "there is proof beyond a reasonable doubt that

the    statute   is   unconstitutional.").             Thus,      we    conclude     that
although an interior inspection may be useful, convenient, and

expedient in developing a valuation, the Uniformity Clause does

not require it.

                              ii.     Minor Intrusion
       ¶53   The home does not stand on the same footing as other

spaces protected by the Fourth Amendment:                    "[W]hen it comes to

the Fourth Amendment, the home is first among equals."                           Florida
v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013).                            We do


                                          37
                                                                          No.     2015AP1523



not equivocate on this principle.                   "There can be no doubt that

'the Fourth Amendment has drawn a firm line at the entrance to

the house'" and that "it is our duty to zealously guard that

line."       Sobczak,      347    Wis. 2d 724,          ¶27    (quoting        Payton,   445

U.S. at 590).

       ¶54   So when the Town says a tax assessor's uninvited visit

is a "relatively minor" intrusion in one's home, we look closely

at what he proposes to do there.                 Gardiner said it would conduct

a "detailed viewing of the interior . . . of all buildings and

improvements and the recording of complete cost, age, use, and

accounting treatments."                It says "[i]t is essential that the

assessor perform a thorough, detailed, and objective viewing of

each property" that is "field verified and accurate."                                Part of

what    Gardiner     would       be    seeking     is     evidence       of    the    home's

"effective age," which requires it to carefully consider "abuse,

neglect, general maintenance, and all other influences on the

physical condition of the improvements."                        This search requires

the assessor to "inspect the interior of a minimum of 90%" of
the     home.      In     the     process     of     the       search,    the     assessor

scrutinizes        such    personal         spaces        as    bedrooms,        kitchens,

basements, and bathrooms.                If this was a medical examination,

"minor intrusion" is not the description that would come to

mind.

       ¶55   The    Town    and       Gardiner     also    say    such        searches   are

relatively minor intrusions because they are preceded by notice,

and the homeowner has an opportunity to schedule the search.                              It
says this procedure even "gives homeowners time to tuck away any
                                            38
                                                                             No.     2015AP1523



personal property they do not want the assessor to see."                                   While

this procedural politeness is certainly welcome, it does nothing

to detract from the offense given by the search itself.                                  As Boyd

recognized,        the     Fourth    Amendment's            principles      "apply        to   all

invasions on the part of the government and its employees of the

sanctity of a man's home and the privacies of life."                                 116 U.S.

at    630.        The     Fourth    Amendment         is    less    concerned        with      the

politeness with which the government agent enters a home than it

is with the fact he is there at all.                        "It is not the breaking of

his doors, and the rummaging of his drawers, that constitutes

the   essence       of    the    offense;       but    it    is    the    invasion        of   his

indefeasible right of personal security, personal liberty, and

private property . . . ."                Id.

       ¶56    The       Town    further        asserts       the    intrusion       is     minor

because      it     "is     clearly      less        than    in     searches       where       the

government is checking the homeowner's compliance with civil or

criminal rules and the homeowner faces the specter of being

found guilty of violations and having to pay fines or criminal
consequences."            That     may    be    true,       but    it    misapprehends         the

significance        of     this     constitutionally-protected                   right.        The

purpose of the Fourth Amendment is not to provide an opportunity

to    secret      away     the     fruits       and    instrumentalities            of     crime

(although it can sometimes have that incidental effect).                                       The

point is to protect a person's right to be secure in one's home,

to lie in repose, or partake of what activities one wishes, free

of    the    government's          watchful      eye.         The       Fourth    Amendment's
promise is that a person may stand in his door and tell the
                                                39
                                                                  No.     2015AP1523



government agent "you shall not pass":             "[P]hysical entry of the

home is the chief evil against which the wording of the Fourth

Amendment    is    directed . . . ."          United   States    v.     U.S.    Dist.

Court for E. Dist. of Mich., So. Div., 407 U.S. 297, 313 (1972).

    ¶57     The intrusiveness of a search lies on a continuum; a

pat-down incident to a Terry stop22 might lie near one end, while

towards     the    other   end    lies    a    search     of    one's     home    so

microscopically      punctilious    that      it   can    pry   even     into    the

owner's     most   private   of    thoughts.23          Somewhere     along      that

continuum the government hits the zealously guarded "firm line




    22
          Terry v. Ohio, 392 U.S. 1 (1968).
    23
       See State ex rel. Two Unnamed Pet'rs v. Peterson, 2015
WI 85, ¶18, 363 Wis. 2d 1, 866 N.W.2d 165 (the sought-after
information included emails on computers seized during the
search).


                                         40
                                                                    No.    2015AP1523



at the entrance of the house."               Beyond that line there are no

minor intrusions.24

                                   iii. Warrant
       ¶58        The Town asserts we may deduce the reasonableness of a

tax assessor's search by considering what an application for an

administrative search warrant might say.                   Because the assessor

has the duty to inspect the interior of everyone's home, the

Town    argues,       every   application    for   an    administrative        warrant

would be the same, and would simply repeat the contents of the

notice already sent to the homeowner.                   With no requirement to

find a particularized need for the search, the argument goes,

the warrant application process would be a kabuki play ending

with        the     magistrate's    predestined         approval.         If    every

application necessarily results in issuance of a warrant, then

such searches are categorically reasonable.

       24
        One of the concurrences says this statement is too broad.
Justice Ziegler's concurrence, ¶103. This should be an entirely
unremarkable statement, and it is troubling that, apparently, it
is not.   If we cannot rouse ourselves enough to say this, then
maybe Justice Ann Walsh Bradley is right when she said, just
this term, that our jurisprudence "continues the erosion of the
Fourth Amendment."     State v. Floyd, 2017 WI ___, ¶48, ___
Wis. 2d___, ___ N.W.2d ___ (Ann Walsh Bradley, J., dissenting).
And if that is the case, then we should stop making grand-
sounding statements like "There can be no doubt that 'the Fourth
Amendment has drawn a firm line at the entrance to the house'"
and that "it is our duty to zealously guard that line."
Sobczak, 347 Wis. 2d 724, ¶27 (quoting Payton, 445 U.S. at 590).
We should say what we mean, and if what we mean is that finding
an uninvited government agent trespassing in one's home can be a
"minor" intrusion, then it would be far more accurate to say
that we lackadaisically observe a permeable line somewhere in or
around the house.


                                        41
                                                                                     No.       2015AP1523



       ¶59    We find a parallel to the Town's argument in Camara.

There, the Court considered whether a municipal health inspector

must    obtain      a    warrant      to    annually          conduct       routine            interior

inspections for evidence of building code violations.                                             It was

asserted that the "decision to inspect an entire municipal area

is based upon legislative or administrative assessment of broad

factors such as the area's age and condition."                                  Id. 387 U.S. at

532.    Thus, "[u]nless the magistrate is to review such policy

matters, he must issue a 'rubber stamp' warrant which provides

no protection at all to the property owner."                              Id.

       ¶60    The       Camara    Court      disagreed.              It    noted           that    in    a

warrantless      inspection           regime       "the       occupant       has       no        way    of

knowing      whether       enforcement           of     the    municipal         code           involved

requires     inspection          of   his    premises,          no    way       of    knowing          the

lawful limits of the inspector's power to search, and no way of

knowing whether the inspector himself is acting under proper

authorization."           Id.     This leaves the building's occupant at the

mercy of "the discretion of the official in the field."                                                Id.
The    warrant      requirement          exists        for    the    specific          purpose          of

limiting such discretion:                  "This is precisely the discretion to

invade private property which we have consistently circumscribed

by a requirement that a disinterested party warrant the need to

search."       Id.       at    532-33.       It        concluded      that      a     statutorily-

prescribed       search         regime      was       no     substitute         for        a    neutral

magistrate's review before intruding in someone's home.                                                "We

simply cannot say that the protections provided by the warrant
procedure      are       not     needed     in     this       context;       broad             statutory
                                                  42
                                                                             No.        2015AP1523



safeguards        are        no   substitute       for       individualized              review,

particularly when those safeguards may only be invoked at the

risk of a criminal penalty."             Id. at 533.

     ¶61    A     warrant         requirement      here           would     be        even    more

justified than in Camara.               There, the health inspector had an

indisputable statutory obligation to conduct interior searches.

The same is not true here.                   As we discussed above, the tax

assessor may base his valuation on either an actual view of the

home or, instead, the "best information" practicably available

to him.     If he believes the "best information" available still

leaves     him        with    insufficient        data       on     which        to     build    a

constitutionally-sound            valuation       for    a    specific       home,       he     may

explain why that is so in his application for an administrative

warrant.         As    in    Camara,   the    warrant        will     also       perform        the

salutary function of advising the homeowner of the lawful basis

for the inspection of his home, describing the search's proper

limits, and identifying the assessor as one with authority to

search.     A warrant requirement in these circumstances would be
no meaningless paper-shuffle.25

                                         * * *

     ¶62    A tax assessor's inspection of a home's interior is a

search within the meaning of the Fourth Amendment, and so it is


     25
       Notwithstanding the striking similarities between the
legislative schemes at issue both here and in Camara v.
Municipal Court of City and County of San Francisco, 387
U.S. 523 (1967), the dissent does not explain why San Francisco
needed a warrant, but the Town of Dover does not.


                                             43
                                                                     No.    2015AP1523



presumptively       unreasonable——and            therefore    unconstitutional——in

the absence of a warrant.                 The Town has offered nothing that

overcomes that presumption, and so we find that a tax assessor's

warrantless search of a home would be unconstitutional without

consent.

                                    B. The Dilemma

       ¶63   So the Milewskis really did, and do, face a dilemma.

They    have    a   right      to    challenge      the   revaluation      of    their

Property, as well as a right to prevent the tax assessor from

inspecting the interior of their home without consent.                            The

question now is whether the Town may require them to surrender

one as the price for exercising the other.                     We all learned how

to address this type of situation when we were children:                           Two

wrongs don't make a right.                It would have been a constitutional

wrong to perform a warrantless search of the Milewskis' home in

search of taxable value, and it was in fact a constitutional

wrong to deprive them of their due process rights.                         Forcing a

person to choose between constitutional injuries does not make
the one he chooses any less injurious.

       ¶64   The purpose of giving a right constitutional stature

is to protect it from legislative or executive suspension.                        If,

instead of setting two rights at odds, a statute flatly banned

judicial       review    of    a    tax     assessor's       revaluation    of    real

property, a brief recitation of our due-process catechism would

summarily      consign    it   to    the    realm    of   unconstitutional       acts.

Likewise, a legislative act authorizing an unreasonable search
of a person's home would experience a similarly swift demise.
                                            44
                                                                       No.     2015AP1523



Because we can so easily               dispatch such obvious assaults, it

would     be   odd   if   what   cannot    be    done    directly      could    yet   be

accomplished indirectly through the expedient of juxtaposing one

constitutional right against another.

     It would be a palpable incongruity to strike down an
     act of state legislation which, by words of express
     divestment, seeks to strip the citizen of rights
     guaranteed by the federal Constitution, but to uphold
     an act by which the same result is accomplished under
     the guise of a surrender of a right in exchange for a
     valuable privilege which the state threatens otherwise
     to withhold.
Frost v. R.R. Comm'n of Cal., 271 U.S. 583, 593 (1926).26

     ¶65       The   attempt     to   negate    one     constitutional        right   by

pitting it against another is a gambit not unknown to the law.

One of the earlier cases to address this situation, Simmons v.

United States, 390 U.S. 377, 394 (1968), considered whether a

defendant must choose between his Fourth and Fifth Amendment

rights.        There, the FBI had conducted a search that netted a

suitcase belonging to one of the defendants, Mr. Garrett, which

contained incriminating evidence.                Id. at 380-81.              Mr. Garret

faced the same type of dilemma as the Milewskis.                             Under the

rules     then   obtaining,      a    motion    to    suppress   the    evidence      as

unconstitutionally procured would require Mr. Garrett to testify

     26
       A sophisticated statutory scheme that deprives the
Milewskis of either their Fourth or Fourteenth Amendment rights
is no more acceptable than a blunt exercise of legislative
authority that accomplishes the same thing. See, e.g., Lane v.
Wilson, 307 U.S. 268, 275 (1939).    ("The [Fifteenth] Amendment
nullifies sophisticated as well as simple-minded modes of
discrimination . . . .").


                                          45
                                                                    No.    2015AP1523



that the suitcase belonged to him, but if he did so and the

motion failed, his suppression testimony could be used against

him at trial.         Id. at 389-91.            The Court observed that, in

contemplating      his   litigation      strategy,        "Garret    was     obliged

either to give up what he believed, with advice of counsel, to

be a valid Fourth Amendment claim or, in legal effect, to waive

his Fifth Amendment privilege against self-incrimination."                          Id.

at 394.     He opted for the suppression motion, which failed, and

the   government     used     his    suppression      testimony     to     obtain    a

conviction.       See id. at 389.        The Simmons Court recognized the

"undeniable       tension"    this     type     of   situation      creates,        and

concluded that it is "intolerable that one constitutional right

should have to be surrendered in order to assert another."                          Id.

at 394.

      ¶66   The    Eleventh    Circuit    Court      of   Appeals   considered        a

similar undeniable tension, but there it was between the First

and Fourth Amendments.         Bourgeois v. Peters, 387 F.3d 1303 (11th

Cir. 2004). Mr. Bourgeois wished to attend a political protest,
but the city of Columbus, Georgia required all those entering

the protest site to submit to a metal detector search.                       Id. at

1306-07.      The     City    argued     that    relinquishing       one    of      the

constitutional rights was consensual because no one was under an

obligation to attend the protest.               See id. at 1324.          Those who

valued their speech and assembly rights more highly than their

right to be free of unreasonable searches, the City said, would

voluntarily submit to a search.            See id.        Those who valued their
Fourth Amendment rights more highly would forego attendance at
                                         46
                                                                                No.    2015AP1523



the protest.       See id.         Either way, the potential attendees knew

the price of exercising their rights, and chose accordingly.

See id.        There is more than an echo of this argument in the

Court   of     Appeals    opinion,         which      reasoned       that       the   Milewskis

"were well informed of the repercussions of refusing Gardiner's

reasonable      request       to    view    the      interior       of    their       home,     and

Plaintiffs chose to abandon their right to challenge the tax

assessment before the BOR."                     Milewski v. Town of Dover, No.

2015AP1523, unpublished slip op., ¶21.

       ¶67    The Bourgeois court succinctly described the problem

with    this    type     of     reasoning:           "[T]he    very       purpose        of     the

unconstitutional          conditions            doctrine       is        to      prevent        the

Government from subtly pressuring citizens, whether purposely or

inadvertently, into surrendering their rights."                                Bourgeois, 387

F.3d    at     1324-25.            It's    troubling          when       the     price     of    a

discretionary governmental benefit is loss of a constitutional

right; it's simply unacceptable when the State requires a person

to sideline one constitutional right before exercising another.
As   the     Bourgeois     court         observed,      "[t]his          case    presents        an

especially malignant unconstitutional condition because citizens

are being required to surrender a constitutional right—freedom

from unreasonable searches and seizures—not merely to receive a

discretionary      benefit         but     to   exercise       two       other    fundamental

rights—freedom of speech and assembly."                          Id. at 1324.                 Worse

yet, there is no discernible principle that would limit the

malignancy.       "If     the      state    may      compel     the      surrender       of     one
constitutional right as a condition of its favor, it may, in
                                                47
                                                                   No.     2015AP1523



like manner, compel a surrender of all."                    Frost, 271 U.S. at

594.        We agree with the Frost Court's observation that "[i]t is

inconceivable that guaranties embedded in the Constitution of

the United States may thus be manipulated out of existence."

Id.;    see     also    Smith   v.   Allwright,   321     U.S. 649,      664   (1944)

("Constitutional rights would be of little value if they could

be thus indirectly denied.").

       ¶68     The Milewskis exercised their right to deny the tax

assessor's request to inspect the interior of their home.                        For

the exercise of that constitutionally-protected right, they lost

the    ability     to    contest     their    increased    tax   burden.27        The




       27
       One of the concurrences favors resolving this case on
statutory grounds——as a means of avoiding constitutional issues—
—by interpreting "view" in Wis. Stat. § 70.47(7)(aa) to mean
only "exterior view."    Chief Justice Roggensack's concurrence,
¶92 ("[I]nterpreting 'view such property' under Wis. Stat.
§ 70.47(7)(aa) to be satisfied by an exterior view of the
property avoids the possibility that the statutory scheme would
operate to infringe the due process rights of a taxpayer by
denying the taxpayer the opportunity to be heard.").     Because
the Milewskis offered Gardiner an exterior view, the concurrence
concludes, they satisfied the statute and should have been
allowed to challenge the assessment. Id., ¶97.         But this
resolution doesn't avoid the constitutional issue, it just
avoids talking about it.

                                                                      (continued)
                                         48
                                                                No.    2015AP1523



constitution may not be put at odds with itself, and we do not

countenance penalties on the exercise of constitutional rights.28

Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551

(1956) (preventing local government from conditioning right to

due   process   on    disavowal   of    the   Fifth   Amendment       protection

against     self-incrimination);       Shelton   v.   Tucker,    364    U.S. 479

(1960) (preventing local government from conditioning employment

on    impairment     of   constitutionally-protected      free    association

rights); see also Harman v. Forssenius, 380 U.S. 528, 540 (1965)

("It has long been established that a State may not impose a

     The limiting construction the concurrence would place on
"view," it says, is necessary to "save the constitutionality of
the statutory scheme."     Id., ¶94.    It must have been the
interior inspection that put the statute at risk because that's
what the concurrence would exclude from the scope of the term
"view."    And although it didn't say why the interior view
created constitutional peril, it must have been that it would
violate the Fourth Amendment.    If that were not so, then no
"saving" construction would be necessary. So the Chief Justice
must have concluded, just as we did, that a nonconsensual,
warrantless interior inspection would violate the Fourth
Amendment. The only difference between her conclusion and ours
is that we said it aloud, while she said it sotto voce.      We
should say such things aloud.
       28
       The dissent says revoking someone's due process rights is
a reasonable "constitutional inducement" to obtain a person's
consent to a search of one's home.          See dissent, ¶170.
Constitutionally valid consent, however, must be given freely
and voluntarily.    See State v. Artic, 2010 WI 83, ¶32, 327
Wis. 2d 392, 786 N.W.2d 430 ("The State bears the burden of
proving that consent was given freely and voluntarily . . . .").
Stated in the negative, effective consent cannot be "the product
of duress or coercion, express or implied . . . ."    Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973).     Threatening someone
with the loss of a constitutional right sounds an awful lot like
"duress or coercion."


                                       49
                                                                 No.     2015AP1523



penalty    upon     those   who   exercise     a   right    guaranteed    by   the

Constitution." (citing Frost, 271 U.S. at 593)).29               The Milewskis

suffered    an    abridgement     of   their   Fourteenth     Amendment    rights

solely    because    they   exercised     their    Fourth    Amendment    rights,

which is a real and immediate constitutional injury.30


     29
       The Harman Court considered a Virginia statute that
forced voters to choose between        (a)  an onerous yearly
registration process and (b) payment of a poll tax.    The Court
observed that the latter option violated the 24th Amendment,
while the former acted as a substantial encumbrance on "[t]he
right to vote freely for the candidate of one's choice[, which]
is of the essence of a democratic society . . . ."     Harman v.
Forssenius, 380 U.S. 528, 540 (1965) (quoting Reynolds v. Sims,
377 U.S. 533, 555 (1964)).    "Restrictions on that right," it
said, "strike at the heart of representative government."
Harman, 380 U.S. at 540 (quoting Reynolds, 377 U.S. at 555). So
Virginia voters were faced with a Milewski-like conundrum:
Submit to an unconstitutional poll tax, or suffer an encumbrance
on the right to vote that strikes at the heart of representative
government.   The Harman Court concluded Virginia could not put
its citizens to that choice.
     30
       One of the concurrences is concerned by our decision to
opine on the "unconstitutional conditions doctrine" because it
was not briefed.    Justice Ziegler's concurrence, ¶101.   It is
fair to say this subject comprised virtually the entirety of the
Milewskis' briefing.    As relevant here, the doctrine expresses
the basic principle that the State may not put constitutional
rights at odds with each other such that a person must surrender
one as the price of exercising the other. See, e.g., Slowchower
v. Bd. of Higher Ed. of City of New York, 350 U.S. 551 (1956);
Simmons v. United States, 390 U.S. 377 (1968); Bourgeois v.
Peters, 387 F.3d 1303 (11th Cir. 2004).

     That is precisely, and only, what the Milewskis argued.
They said they have a due-process right to challenge their tax
reassessment, they have the simultaneous right to prevent
government agents from searching their home, and they said the
statutes told them they had to choose between those rights. We
have not addressed anything the parties have not briefed.

                                                                   (continued)
                                        50
                                                           No.   2015AP1523



       ¶69   The only remaining question is whether application of

Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) will invariably cause

this injury under all circumstances.            If they will, we must

declare them unconstitutional on their face to the extent they

foreclose judicial review of a tax assessor's revaluation.31             If

they    do   not,   of   necessity,   inflict   this   injury,   then   the

constitutional infirmity lies only in how they were applied to

the Milewskis.      The Milewskis say their challenge is the latter,

while the Town says the Milewskis are really arguing that the

statutes are facially unconstitutional.




     The concurrence also says existing cases demonstrate the
unconstitutional conditions doctrine is applicable only when the
State conditions access to a government-provided benefit upon
surrender of a constitutional right.          Justice Ziegler's
concurrence, ¶101.    While courts most frequently discuss the
doctrine in that context, they also address it in the context of
juxtaposed constitutional rights (as we described above).     In
any event, concluding from this that the doctrine protects
access to government benefits but not constitutional rights is
to make government benefits a higher order of rights than those
protected by our Constitutions. Neither law nor logic supports
such a proposition.

      Finally, the concurrence agrees the Milewskis could not be
constitutionally required to choose between their Fourth and
Fourteenth Amendment rights.      Justice Ziegler's concurrence,
¶100.    But it does not explain how or why it would reach that
conclusion without aid of the very principles it rejects.
       31
       Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786
N.W.2d 385 ("[A] facial constitutional challenge attacks the law
itself as drafted by the legislature, claiming the law is void
from its beginning to the end and that it cannot be
constitutionally enforced under any circumstances . . . .").


                                      51
                                                                              No.   2015AP1523



       ¶70   We     find       only    that       Wis.     Stat.    §§ 70.47(7)(aa)          &

74.37(4)(a) were unconstitutionally applied to the Milewskis.

The former provision states, in its entirety:

       No person shall be allowed to appear before the board
       of review, to testify to the board by telephone or to
       contest the amount of any assessment of real or
       personal property if the person has refused a
       reasonable written request by certified mail of the
       assessor to view such property.
Wis. Stat. § 70.47(7)(aa).                 The statute does not, by its express

terms,   say      where    the    assessor        will     be    when    he    conducts   his

"view" of the property.                 However, it does assume he will be

somewhere      that    requires        the    owner's       consent.           If   it    were

otherwise,        there    would      be     no     need    to     ask    permission——the

assessor could simply conduct the "view" without contacting the

owner at all.         It is not immediately apparent to us that a Venn

diagram of "places where an assessor may not be without consent"

and "places the Fourth Amendment protects against unreasonable

searches" would depict completely overlapping circles.                                To the

extent they diverge, the statutory provision is not facially

unconstitutional.          This question was not addressed directly, and

nothing in the parties' briefs indicates such a divergence is

not possible, so we reserve for another day the determination of

its facial soundness.            We hold only that this statute may not be

read   to    require       a   "viewing"      that       would     violate      the   Fourth

Amendment.

       ¶71   The      parties         have        not    identified           any   inherent

constitutional        infirmity        in    Wis.       Stat.    § 74.37(4)(a).           This
provision simply requires a property owner to comply with the

                                              52
                                                                              No.       2015AP1523



board of review procedures before filing a claim for excessive

assessment         in    circuit    court:             "No   claim    or     action       for       an

excessive assessment may be brought under this section unless

the procedures for objecting to assessments under [Wis. Stat.

§] 70.47 . . . have            been     complied         with."       § 74.37(4)(a).                In

this   case,       however,       those      procedures        included       the       Board       of

Review's     determination         that       the       Milewskis     must    submit          to    an

unconstitutional search of their home before presenting their

challenge.                 Because           § 74.37(4)(a)            incorporated                 the

unconstitutional           application            of    § 70.47(7)(aa),           it    too        was

unconstitutionally applied to the Milewskis.

                                       IV.    CONCLUSION

       ¶72    Applying Wis. Stat. §§ 70.47(7)(aa) and 74.37(4)(a) in

a manner that required submission to a tax assessor's search as

a precondition to challenging the revaluation of their property

violated the Milewskis' due process rights as guaranteed by the

Fourteenth         Amendment      to    the       United     States    Constitution,               and

Article       I         section    1         of        the   Wisconsin        Constitution.
Consequently, we reverse the court of appeals and remand to the

circuit      court       for   further        proceedings          consistent          with    this

opinion.

       By    the    Court.—The         decision         of   the   court     of     appeals         is

reversed and the matter is remanded to the circuit court for

further proceedings consistent with this opinion.




                                                  53
                                                                     No.    2015AP1523.pdr


     ¶73     PATIENCE      DRAKE    ROGGENSACK,         C.J.     (concurring).           I

agree with the lead opinion that the Milewskis are entitled to a

hearing to contest their tax assessment, and therefore I concur

in the mandate.        I write separately because I conclude that the

Milewskis are statutorily entitled to a hearing even though they

did not permit a tax assessor to enter the interior of their

home.    Therefore, because I would not address the constitutional

issues discussed by the lead opinion, I do not join the lead

opinion, but respectfully concur.

                                   I.    BACKGROUND

     ¶74     The lead opinion ably sets forth relevant facts, and

therefore     I   relay     only        those    facts    that       are    helpful    to

understanding my discussion that follows.

     ¶75     The Milewskis received a written notice that a tax

assessor,     Gardiner,      would       visit    their       home    to    view    their

property.1        When    Gardiner       arrived,       Ms.    MacDonald         permitted

Gardiner to view the exterior of their home.                     She offered to let

Gardiner through a gate and into their yard so that he could
view the entire exterior of their home.                   Gardiner declined this

invitation and left the property.

     ¶76     Gardiner valued the Milewskis' property significantly

higher    than    it     previously       had    been    valued.           Mr.   Milewski

appeared at the Town of Dover Board of Review (board of review)

to object to the valuation of their property.                              The board of




     1
         The notice requested an interior view of their home.


                                            1
                                                                     No.   2015AP1523.pdr


review denied Mr. Milewski the opportunity to appear because he

had not permitted the assessor to view the interior of his home.

      ¶77    The Milewskis paid their taxes for 2013 and sought

review of their tax assessment in circuit court under Wis. Stat.

§ 74.37.     The Town of Dover Board of Review and Gardiner moved

for summary judgment.             They contended that the Milewskis lost

their right to contest the valuation of their property before

the board of review, and, as a corollary, the right to challenge

their tax assessment as excessive in circuit court.

      ¶78    The Milewskis moved for partial summary judgment and

argued, in part, that they were entitled to a hearing to object

to their tax assessment because Wis. Stat. § 70.47(7)(aa) is

satisfied by a taxpayer who permits an exterior view of his

property, and the Milewskis permitted such a view.

      ¶79    The circuit court granted summary judgment in favor of

the   Town   of    Dover    and    Gardiner,        and   the    court     of   appeals

affirmed.     We granted the Milewskis' petition for review.                           I

would reverse the court of appeals and remand to the circuit
court for a hearing on the Milewskis' excessive tax assessment

claim.

                                  II.    DISCUSSION

                             A. Standard of Review

      ¶80    The present case requires the court to interpret and

apply the statutory provisions that govern the valuation of real

property     and   the     ability      of   a     taxpayer     to   contest     a   tax

assessment.        "Interpretation           and    application       of    a   statute
present questions of law that we review independently, while

                                             2
                                                              No.   2015AP1523.pdr


benefitting from the analyses of the circuit court and court of

appeals."    Sorenson v. Batchelder, 2016 WI 34, ¶10, 368 Wis. 2d

140, 885 N.W.2d 362 (citing Pool v. City of Sheboygan, 2007 WI

38, ¶9, 300 Wis. 2d 74, 729 N.W.2d 415).

                     B. Statutory Interpretation

    ¶81     "[S]tatutory interpretation 'begins with the language

of the statute.      If the meaning of the statute is plain, we

ordinarily stop the inquiry.'"            State ex rel. Kalal v. Circuit

Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236

Wis. 2d 211, 612 N.W.2d 659).         "Statutory language is given its

common, ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special   definitional     meaning."        Id.,     ¶45    (citing    Bruno    v.

Milwaukee   Cty.,   2003   WI   28,    ¶¶8,    20,    260    Wis. 2d 633,      660

N.W.2d 656).

    ¶82     These principles guide our interpretation of the three

pertinent statutes in this case:              Wis. Stat. § 70.32(1); Wis.
Stat. § 70.47(7)(aa); and Wis. Stat. § 74.37.               The circuit court

and the court of appeals concluded that these provisions prevent

the Milewskis from contesting the valuation of their home and

the validity of their tax assessment.

    ¶83     Wisconsin Stat. § 70.32(1) describes the way in which

an assessor is required to value real property.                     It provides,

"Real property shall be valued by the assessor in the manner

specified in the Wisconsin property assessment manual provided
under s. 73.03(2a) from actual view or from the best information

                                      3
                                                                       No.    2015AP1523.pdr


that the assessor can practicably obtain, at the full value

which could ordinarily be obtained therefor at private sale."

Wis. Stat. § 70.32(1).                 Therefore, there are two permissible

ways in which an assessor may value real property:                            (1) through

an   actual      view       of   the   property;      or   (2)   based       on   the   best

information available to the assessor.                       Of course, an assessor

may rely on the best information available because an actual

view    of   a   property         is   not   always    feasible.         See      generally

Boorman v. Juneau Cty., 76 Wis. 550, 45 N.W. 675, 676 (1890)

("We cannot hold that the mere failure of the assessor to value

the lands from actual view invalidated the assessment.").

       ¶84    A taxpayer who is dissatisfied with the value accorded

his real property is allowed to contest the valuation before a

board of review.            Wis. Stat. § 70.47.            Section 70.47(7) outlines

the process a taxpayer must follow to receive a hearing before a

board   of    review.            § 70.47(a)    ("Objections       to    the       amount   or

valuation of property shall first be made in writing and filed

with the clerk of the board of review within the first 2 hours
of the board's first scheduled meeting . . . .").

       ¶85    A hearing before a board of review allows a taxpayer

to object to the valuation of his property; however, a taxpayer

also has the option of claiming his tax assessment is excessive.

Specifically, a taxpayer may pay the taxes that were imposed and

sue for a refund in circuit court.                     Wis. Stat. § 74.37(1) ("In

this    section,        a    'claim    for    an   excessive     assessment'         or    an

'action for an excessive assessment' means a claim or action,
respectively, by an aggrieved person to recover that amount of

                                              4
                                                                    No.   2015AP1523.pdr


general property tax imposed because the assessment of property

was excessive.").

       ¶86    Under Wis. Stat. § 70.47, a taxpayer is required to

satisfy certain procedural requirements before he may obtain a

hearing to object to the valuation of his property.                                And, a

taxpayer      who    is     procedurally        barred      from    challenging        the

valuation     of    his   property    before      a   board    of    review       is   also

precluded from seeking review of his tax assessment in circuit

court.       Wis. Stat. § 74.37(4)(a) ("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.").

       ¶87    Wisconsin Stat. § 70.47(7) explains the ways in which

an individual can lose the right to object to a tax assessment.

For example, a taxpayer who refuses the request of an assessor

to view his property is prevented from contesting the valuation

of his property before a board of review and is likewise barred

from    challenging       his   tax   assessment       as    excessive      in    circuit
court.       Wis. Stat. § 70.47(7)(aa).               Therefore, if an assessor

requests to "view" the taxpayer's real property, and the owner

of the property refuses this request, the owner is prevented

from     taking     any   measure     to   challenge         his    tax     assessment.

Specifically, § 70.47(7)(aa) provides,

       No person shall be allowed to appear before the board
       of review, to testify to the board by telephone or to
       contest the amount of any assessment of real or
       personal property if the person has refused a
       reasonable written request by certified mail of the
       assessor to view such property.

                                           5
                                                                                No.       2015AP1523.pdr


Under this provision, an assessor may request the opportunity to

view a taxpayer's property, but the assessor is not obligated to

specify those parts of the property the assessor wishes to view.

Accordingly, a "view" may include only the exterior, only the

interior or both.

       ¶88    Although          this    provision            requires      an        individual      to

permit an assessor to "view" his property, nothing in Wis. Stat.

§ 70.47(7)(aa) requires that a taxpayer permit an assessor to

view    the    interior         of     his     home.           See      State        v.    Pratt,    36

Wis. 2d 312,        317,        153    N.W.2d 18            (1967)      ("In         construing      or

'interpreting'         a    statute          the       court       is   not      at       liberty    to

disregard the plain, clear words of the statute.").                                            Rather,

§ 70.47(7)(aa)       provides           that       an    assessor         must       be     given   the

opportunity to "view such property."                           And, the phrase "view such

property" is not defined so as to require an interior view of

the    structures      on       the    property         in    order       for    a    view     of   the

property to have occurred.

       ¶89    "View"       or    "viewing"         is       defined       as    "[t]o        look   at,
examine, or inspect" or alternatively as "[a]n examination using

the eyes; a look."              View, The American Heritage Dictionary, 1931

(5th ed. 2011).            An assessor may examine a taxpayer's property

without      entering       the       interior         of    his     home.           Therefore,      an

examination of a property for purposes of valuing said property

does not necessarily require an assessor to view the interior of

any structures located on the parcel of real property.

       ¶90    The   legislature              could      have       used    the        word     "enter"
instead of "view," which may have suggested that interior access

                                                   6
                                                                No.   2015AP1523.pdr


to any structures on the property is required.                   See Kalal, 271

Wis. 2d 633, ¶44 ("We assume that the legislature's intent is

expressed in the statutory language.").                  It did not.       But the

legislature    has      used   the     word    "enter"     in   other     contexts

involving the assessment of property.                Wis. Stat. § 70.05(4m).

"When the legislature chooses to use two different words, we

generally consider each separately and presume that different

words have different meanings."                Augsburger v. Homestead Mut.

Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856 N.W.2d 874

(internal quotations omitted).

      ¶91   Importantly, nowhere else in the statutory scheme does

it mandate an interior view of a taxpayer's property.                    And, this

interpretation of Wis. Stat. § 70.47(7)(aa) does not prevent an

assessor from correctly assessing the value of the home under

Wis. Stat. § 70.32 or the Wisconsin Property Assessment Manual.

If a taxpayer allows for an exterior view of the home, then that

is   "the   best   information       that     the   assessor    can   practicably

obtain."    § 70.32.
      ¶92   Moreover, interpreting "view such property" under Wis.

Stat. § 70.47(7)(aa) to be satisfied by an exterior view of the

property avoids the possibility that the statutory scheme would

operate to infringe the due process rights of a taxpayer by

denying the taxpayer the opportunity to be heard.

      ¶93   The lead opinion's due process analysis is predicated

on the presumption that Wis. Stat. § 70.47(7)(aa) precludes the

right to be heard for a taxpayer who denies an assessor a view
of   any    part   of    his   home.          However,    we    generally    avoid

                                         7
                                                                             No.    2015AP1523.pdr


interpreting a statute in a way that would cause constitutional

problems.        See Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1,

884 N.W.2d 484 ("We presume that statutes are constitutional and

if any doubt exists about the statute's constitutionality, the

court     must     resolve         that    doubt       in     favor     of     upholding          the

statute." (internal citations omitted)).

       ¶94     Even if the plain language of the statute could be

read    to     require       interior       access      to     a   taxpayer's           property,

interpreting          the    statute       such       that    it   is    satisfied          by    an

exterior view preserves its constitutionality.                                 See Milwaukee

Branch of NAACP v. Walker, 2014 WI 98, ¶63, 357 Wis. 2d 469, 851

N.W.2d 262.            "If     a    saving     construction . . . preserves                       the

constitutionality of the statute, we will employ it."                                     Id.     "We

do so in order to avoid a constitutional conflict."                                     Id., ¶64.

"Stated otherwise, when we determine that there is a statutory

flaw    that     may    have       constitutional           significance,          we   ascertain

whether the government rule or statute can be interpreted in a

manner that will avoid a constitutional conflict."                                        Id.      As
discussed above, it is possible to interpret the statute such

that an exterior view of a taxpayer's property is sufficient.

This interpretation allows a taxpayer a hearing to contest his

tax assessment if he permits an exterior view of his property,

thereby        rendering           the      statutory          scheme        constitutional.

Accordingly,           this        court      should          interpret            Wis.         Stat.

§ 70.47(7)(aa) such that an exterior view of the property is

sufficient       in    order       to     "save"      the    constitutionality             of    the
statutory scheme.

                                                  8
                                                                         No.    2015AP1523.pdr


       ¶95    Consequently,            I        would       interpret           Wis.     Stat.

§ 70.47(7)(aa) consistent with a taxpayer's due process right to

be heard.       The interpretation accords a taxpayer who permits an

exterior view of his property a hearing under § 70.47(7)(aa) and

also the right to maintain a refund action under Wis. Stat.

§ 74.37.

       ¶96    However, a taxpayer who provides only an external view

of    his    property     is     not   entitled        to   produce      evidence       of   the

interior condition of his home at a hearing before the board of

review or in a claim for excessive assessment before a circuit

court.       During those proceedings, the taxpayer may cross-examine

the    individual       who      valued    his      property   to     determine         if   the

assessor      came   to      a   reasonable         conclusion      as     to    its    value.2

Through this process, a taxpayer will be able to determine if

the assessor relied on the best information available to assess

his    property,        as       required        under      Wis.    Stat.        § 70.32(1).

Additionally, a taxpayer may introduce other evidence unrelated

to    the    interior     condition        of    the     property     to    show       his   tax
assessment was unjust or unreasonable.




       2
       Assessors,   or  an  authorized   representative   of   the
assessor, are required to attend such a hearing. See Wis. Stat.
§ 70.48    ("The   assessor   or   the    assessor's    authorized
representative shall attend without order or subpoena all
hearings before the board of review and under oath submit to
examination and fully disclose to the board such information as
the assessor may have touching the assessment and any other
matters pertinent to the inquiry being made.").


                                                9
                                                                      No.    2015AP1523.pdr


                        C. Milewskis' Tax Assessment

      ¶97    In   the   present     case,      the    Milewskis         satisfied        the

conditions of Wis. Stat. § 70.47(7)(aa), and therefore they are

entitled to challenge their tax assessment as excessive under

Wis. Stat. § 74.37.          When the assessor, Gardiner, arrived at

their home, Ms. MacDonald offered to provide the inspector with

an exterior view of their home.               She offered to open the gate to

their yard and let him view the entirety of the exterior.                              As a

result, she offered to let Gardiner "view" the property, which

is all that § 70.47(7)(aa) requires in order for a taxpayer to

obtain   a   hearing      before   a    board    of    review.          It     is   of   no

consequence that Gardiner declined the Milewskis' invitation to

examine the exterior of their home.

      ¶98    Therefore,     the     Milewskis        satisfied        the      conditions

necessary to be able to challenge their taxes as excessive in

circuit court under Wis. Stat. § 74.37.                     I would remand to the

circuit court for a hearing on this claim.                       However, during the

hearing, the Milewskis are not entitled to present evidence as
to the condition of the interior of their home.                             Instead, they

may examine Gardiner in order to determine the validity and

soundness of the methodology upon which he based the valuation

of   their   property.          Additionally,        they       may   introduce        other

evidence of the value of their property as appropriate.

                                 III.   CONCLUSION

      ¶99    In   light    of     the   foregoing,          I    conclude       that     the

Milewskis are statutorily entitled to a hearing even though they
did not permit a tax assessor to enter the interior of their

                                         10
                                                 No.   2015AP1523.pdr


home.   Therefore, because I would not address the constitutional

issues discussed by the lead opinion, I do not join the lead

opinion, but respectfully concur.




                               11
                                                                            No.       2015AP1523.akz



       ¶100 ANNETTE           KINGSLAND        ZIEGLER,         J.     (concurring).                I

respectfully concur in the mandate.                            I agree with the result

reached by the lead opinion in this case, as well as the lead

opinion's       basic        rationale     and        much      of   the        lead     opinion's

analysis.           That is, I agree that the Town could not, consistent

with     the         United     States         Constitution          and        the      Wisconsin

Constitution, compel the Milewskis to choose between exercising

their     constitutional              right      to        challenge        a      governmental

deprivation            of      their      property             and     exercising               their

constitutional          right    to     refuse       governmental          entry       into     their

home.     This Scylla and Charybdis, however, has seemingly been

analyzed under the rubric of the "unconstitutional conditions

doctrine"       by     the    lead     opinion.            I   am    concerned          with    this

characterization.

       ¶101 I concur only in the mandate principally because of

the     lead    opinion's        unprecedented             decision        to     rely     on    the

"unconstitutional conditions doctrine," a term absent from the

briefing       in     this    case.       The    perils         of   addressing          unbriefed

issues are illustrated by the lead opinion's discussion.                                            A

review         of      existing         case         law       demonstrates            that      the

unconstitutional conditions doctrine is more complex than the

lead     opinion's           analysis     suggests,            and   that        it     has     most

typically, if not always, according to the Supreme Court, arisen

in cases which involve government benefits.                             See, e.g., Koontz

v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct.
2586, 2594 (2013) ("We have said in a variety of contexts that

'the government may not deny a benefit to a person because he
                                                 1
                                                                          No.    2015AP1523.akz


exercises a constitutional right.' . . . Those cases reflect an

overarching principle, known as the unconstitutional conditions

doctrine, that vindicates the Constitution's enumerated rights

by preventing the government from coercing people into giving

them up." (emphasis added)); id. at 2596 ("Virtually all of our

unconstitutional            conditions          cases          involve      a      gratuitous

governmental         benefit      of   some     kind.");        Planned     Parenthood          of

Ind., Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962,

986 (7th Cir. 2012) ("The first step in any unconstitutional-

conditions claim is to identify the nature and scope of the

constitutional         right      arguably      imperiled        by   the       denial     of   a

public benefit." (emphasis added)); Madison Teachers, Inc. v.

Walker,    2014       WI    99,    ¶¶29-35,         358   Wis. 2d 1,       851     N.W.2d 337

(suggesting          that    the       unconstitutional           conditions         doctrine

embodies       the    principle        that     "it       is    impermissible        for    the

government to condition the receipt of a tangible benefit on the

relinquishment of a constitutionally protected right" (emphasis

added)); Kathleen M. Sullivan, Unconstitutional Conditions, 102
Harv.     L.      Rev.       1413,       1415        (1989)       ("The         doctrine        of

unconstitutional conditions holds that government may not grant

a   benefit on the condition that the beneficiary surrender a

constitutional right, even if the government may withhold that

benefit altogether." (emphasis added)).1
      1
       For example, the lead opinion pulls language from Frost &
Frost Trucking Co. v. Railroad Commission of California, 271
U.S. 583, 592-93 (1926).     That case was an unconstitutional
conditions case, but it involved a "gratuitous governmental
benefit." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
___, 133 S. Ct. 2586, 2596 (2013).

                                                2
                                                                      No.    2015AP1523.akz


       ¶102 Perhaps this doctrine should be applied in this case

(which does not involve a governmental benefit), but I would

prefer to see briefing and argument on that question before

establishing a rule in Wisconsin.                    Experience teaches that broad

legal statements untethered to the specific facts of the case,

like       those    present       in    the   lead     opinion's      section     on    the

unconstitutional conditions doctrine, can easily metastasize in

our legal system and become "virtual engine[s] of destruction

for countless legislative judgments which have heretofore been

thought          wholly      consistent            with . . . the       Constitution."

Weinberger v. Salfi, 422 U.S. 749, 772 (1975) (discussing the

irrebuttable presumption doctrine).                    Judicial restraint dictates

that we decide this case narrowly, especially given the numerous

constitutional considerations involved.2

       ¶103 Aside from this deficiency, other aspects of the lead

opinion suffer from the same proclivity for overbroadness.                              For

instance, the lead opinion is not content to reject the argument

that home intrusions of the type involved under the specific
facts       at     issue    are    minor;      it    instead    concludes        that    no

governmental entry into a home under any hypothetical set of

circumstances         can   ever       be   minor.     See    lead    op.,    ¶57.      The

statement sounds impressive, but I do not understand the need

for    such      sweeping     remarks.         While    the    lead   opinion     may    be


       2
       I do not necessarily reject all of the principles provided
in the lead opinion's discussion.     I simply disagree with the
lead opinion's use of the unconstitutional conditions doctrine
to resolve this case.


                                               3
                                                                 No.   2015AP1523.akz


entirely correct, I am not willing to decide an infinite number

of potential future cases without briefing and argument.                            To

take another example, while the lead opinion could easily quote

well-established       Fourth   Amendment        maxims    for     some       of   the

principles it cites in its opinion, it instead chooses to reword

them in ways that could be easily misunderstood.                        See, e.g.,

lead    op.,    ¶37   ("[C]onsent    removes      the     search       from    Fourth

Amendment scrutiny.").

       ¶104 In sum, while I would like to join the lead opinion, I

cannot do so for fear of its potential effects on existing case

law and the ways in which it could be cited in the future.

       ¶105 For the foregoing reasons, I respectfully concur in

the mandate.

       ¶106 I   am    authorized    to   state    that    Justice       MICHAEL     J.

GABLEMAN joins this opinion.




                                         4
                                                    No.   2015AP1523.ssa


    ¶107 SHIRLEY   S.   ABRAHAMSON,   J.   (dissenting).1     I   would

affirm the judgment of the circuit court and the decision of the

court of appeals in favor of the Town of Dover.2          The statutes

challenged are presumed constitutional.       The challengers have

    1
       Five justices agree with the mandate set forth in Justice
Daniel Kelly's opinion (which appears as the first opinion in
the instant case).    The mandate is that the decision of the
court of appeals is reversed and the cause is remanded.     Only
Justice Rebecca G. Bradley joins Justice Kelly's opinion. Chief
Justice Patience D. Roggensack joins Justice Kelly's mandate,
writing separately in concurrence.   Justice Annette K. Ziegler
(joined by Justice Michael J. Gableman) joins Justice Kelly's
mandate, writing separately in concurrence.    Justice Ann Walsh
Bradley joins this dissent.

     Justice Kelly's opinion is referred to as a lead opinion
because four justices do not agree with or join its reasoning.

     As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props.,   LLC  v.   DOT,  2016  WI   5,  366   Wis. 2d 372,  874
N.W.2d 533)).
    2
       The parties disagree whether the Milewskis made a facial
or an as-applied challenge to the constitutionality of the
statutes. The lead opinion agrees with the Milewskis that their
challenge is an as-applied challenge. Lead op., ¶¶69-71. I am
not persuaded.    I caution, as the United States Supreme Court
has cautioned, that "the distinction between facial and as-
applied challenges is not so well defined that it has some
automatic effect or that it must always control the pleadings
and disposition in every case involving a constitutional
challenge."   Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 331 (2010).


                                 1
                                                                  No.   2015AP1523.ssa


not    carried     their        heavy     burden   to     prove     the     statutes

unconstitutional beyond a reasonable doubt.3

      ¶108 The legislature has declared that if a real property

owner wishes to contest the amount of an assessment at the board

of review or circuit court, the property owner must, on the

reasonable written request of the assessor, allow the assessor

an    "actual    view"     of    the     real   property.         See   Wis.    Stat.

§§ 70.47(7)(aa), 70.32(1).

      ¶109 The     statutory            words   "actual     view"       have     been

interpreted as including both an interior and exterior view of

the real property.4             The instant case involves the Milewskis'

      3
       The Milewskis bear a heavy burden.     See Tammy W.-G. v.
Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 299, 797 N.W.2d 854
("In a facial challenge, the challenger must persuade us that
the    'heavy   burden'   to   overcome   the    presumption  of
constitutionality has been met, and that there is proof beyond a
reasonable doubt that the statute is unconstitutional"); Clear
Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App 15, ¶33,
374 Wis. 2d 348, 893 N.W.2d 24 (noting "the heavy burden
challengers face on an as-applied equal protection claim and the
strong   presumption   in  favor   of   a  taxing    decision of
government").
      4
       The Wisconsin Property Assessment Manual interprets
"actual view" of property to include an "interior view."     See
Wisconsin Property Assessment Manual at 4-3, 10-55, 21-18 to 21-
20 (2017).

     All subsequent references to the Manual are to the 2017
version. For a discussion of the Manual, see ¶¶143-145, infra.

     At least as early as the 1860s the legislature has required
assessors to value real property upon actual view. Marsh v. Bd.
of Supervisors, 42 Wis. 502, 514 (1877).        The Marsh court
concluded that the requirement of an actual view and the
statutory enumerated factors the assessor must consider help
ensure "an equal and faithful assessment of all property subject
to taxation."


                                            2
                                                               No.   2015AP1523.ssa


refusing to allow the assessor to view the interior of their

real property, a home.        I therefore focus on this issue, as does

the   lead   opinion.        Other   taxpayers   may    refuse       to   give    an

assessor a view of the exterior of the real property or both the

exterior and interior.        Substantially the same or similar issues

may arise in these instances.5

      ¶110 The   lead   opinion      asserts    that   the     legislature       has

conferred on the Milewskis an unconstitutional choice of Option

A or Option B:

      ¶111 If the Milewskis choose Option A, they consent to an

assessor's viewing the interior of their home (thereby forgoing

their Fourth Amendment right to bar the government from their

home) and can contest the amount of the assessment in a hearing

before the Board of Review and a court (thereby exercising their

Fourteenth Amendment due process right to a hearing to contest

the amount of the assessment).

      ¶112 If the Milewskis choose Option B, they refuse to allow

an    assessor   to   view    the    interior    of    their     home     (thereby
exercising their Fourth Amendment right to bar the government


      5
       Chief Justice Patience Roggensack's concurrence offers an
unexpected and surprising interpretation of the phrases "actual
view" and "view such property" in Wis. Stat. §§ 70.32(1) and
70.47(7)(aa), respectively. The concurrence contends that these
phrases do not refer to an interior view of the real property.
This interpretation (not proffered by the parties) does not
resolve the issue of the constitutionality of the statutes at
issue when the property owner does not allow an assessor a view
of the exterior of the real property, which is curtilage.    See
Oliver v. United States, 466 U.S. 170 (1984); State v. Dumstrey,
2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502.


                                       3
                                                                    No.    2015AP1523.ssa


from their home) and cannot contest the amount of the assessment

in a hearing before the Board of Review and a court (thereby

forgoing      their    Fourteenth       Amendment        due   process     right    to    a

hearing to contest the amount of the assessment, according to

the lead opinion).

       ¶113 I conclude that an assessor's entry into the interior

of the home is a search under the Fourth Amendment.                             I further

conclude, as did the circuit court and court of appeals, that

Wis.    Stat.      § 70.47(7)(aa)        and       § 74.37(4)(a),    the       challenged

statutes,     do     not    violate     the    Milewskis'      Fourth     Amendment      or

Fourteenth Amendment rights (or analogous state constitutional

rights).

       ¶114 Section         70.47(7)(aa)       governs     proceedings         before    the

board   of    review       and   bars   a     person     who   refuses    to     allow    an

assessor to view property from appearing or testifying before

the board or contesting the amount of the assessment:

       (aa) No person shall be allowed to appear before the
       board of review, to testify to the board by telephone
       or to contest the amount of any assessment of real or
       personal property if the person has refused a
       reasonable written request by certified mail of the
       assessor to view such property.
       ¶115 Section         74.37(4)(a)       governs     proceedings      before        the

circuit      court    and    bars   a   claim       or   action   for     an    excessive

assessment unless the property owner complied with the procedure

for objecting to assessments prescribed in § 70.47(7)(aa):

              (a)     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
                      70.47(13), have been complied with. . . .

                                               4
                                                                      No.    2015AP1523.ssa


     ¶116 Wisconsin is not alone in tying a challenge to the

amount of a property assessment to a property owner's permitting

a taxing authority to view the real property.6

     ¶117 Although            the    lead     opinion     describes         its   task     as

"straightforward,"            it    engages    in     a   lengthy,    overly       complex

discussion.    It focuses on numerous intricacies, including the

special needs exception to the Fourth Amendment and the messy,

ill-understood       "unconstitutional              conditions"      doctrine.7            It

misses the big picture as well as the components of the tax

assessment statutes.8

     ¶118 My analysis of the issues proceeds as follows:

     ¶119 Part       I        sets     forth       two    realities     essential          to

understanding the instant case:                    The Milewskis did not surrender

their Fourth Amendment rights; the assessor never entered the

home.     The Milewskis retain rights under the statutes to a due

process    hearing       in    which    to     contest     their     assessment;         they

exercised these rights.



     6
       See, e.g., Minn. Stat. §§ 273.20, 274.01(b) (2016); Mass.
Gen. Laws, ch. 58A, § 8A (2016).
     7
       Justice   Annette   Ziegler's   concurrence   appropriately
outlines    some   difficulties    with   the    "unconstitutional
conditions" doctrine, but much more can be said about the
unworkability of the doctrine and the flaws in the lead
opinion's discussion of this doctrine.
     8
       "[T]he tax appeal administrative procedures of chs. 70 and
74 of the Wisconsin statutes are a highly evolved and carefully
interwoven set of statutes providing a comprehensive remedy for
individuals seeking redress for excessive assessments." Hermann
v. Town of Delavan, 215 Wis. 2d 370, 394, 572 N.W.2d 855 (1998).


                                               5
                                                                       No.   2015AP1523.ssa


    ¶120 In      Part    II,     I    examine       Wis.    Stat.      § 70.32(1)      and

determine that the legislative directions to assessors regarding

the methods of valuation express a preference for an "actual

view" of the real property, meaning the view of the interior and

exterior.        The      lead       opinion        rests      on       a     fundamental

misinterpretation of § 70.32(1).

    ¶121 Part      III     examines          the     legislature's           reasonable,

constitutional inducement to property owners to consent to an

assessor's    actual     view    of    the    real     property         by    imposing   a

reasonable,     constitutional        restraint       on    the     property      owner's

ability to contest the amount of an assessment.                        The legislative

provisions      advance         significant,          legitimate             governmental

objectives.

    ¶122 In Part IV, I analogize the challenged tax statutes to

Wisconsin's Implied Consent Law by which the State has imposed a

choice on drivers.        The effect of this constitutional choice is

to discourage a driver's exercise of a Fourth Amendment right to

be free from intrusive government searches of the person by a
blood draw.

    ¶123 In Part V, I show that the challenged tax statutes are

but a specific application of the unremarkable principle that a

taxpayer must make full disclosure of material information to a

taxing authority or face civil tax consequences for failing to

divulge   the    information.          This        principle      of     "make    a   full

disclosure or lose a claim or defense" also exists in other

areas of the law.



                                          6
                                                             No.   2015AP1523.ssa


     ¶124 Part VI concludes the analysis by probing the meaning

of the mandate of the lead opinion.

                                      I

     ¶125 The reader should approach the instant case keeping

two realities firmly in mind:

     ¶126 One. the Town's assessor did not enter the interior of

the Milewskis' home.     No search of the Milewskis' home occurred.9

And no search would have occurred without their express consent.

The Milewskis did not surrender any constitutional right to be

free from an unreasonable search.10          See lead op., ¶¶6-12.



     9
          The circuit court observed that no search occurred:

     Circuit Court: [Milewski] here very nicely says: You
     can come——you can come in the yard, you can look
     around, but you can't go in.    They don't go in, do
     they?

     Milewski's Attorney:        No, they do not.

     Circuit Court:         So     there's     no   Fourth     Amendment
     violation at all.

     Milewski's Attorney:        There's no search.
     10
       Wisconsin Stat. § 70.05(4m) limits the availability and
scope of an assessor's entry to view a property:

     A taxation district assessor may not enter upon a
     person's real property for purposes of conducting an
     assessment under this chapter more than once in each
     year, except that an assessor may enter upon a
     person's real property for purposes of conducting an
     assessment under this chapter more often if the
     property owner consents.    A property owner may deny
     entry to an assessor if the owner has given prior
     notice to the assessor that the assessor may not enter
     the property without the property owner's permission.

                                                                   (continued)
                                      7
                                                               No.    2015AP1523.ssa


       ¶127 No    assessor   forced    his    or   her   way    into      the    home,

enlisted the aid of law enforcement officers to enter the home,

or otherwise interfered with the Milewskis' exercise of their

right to deny an assessor entry into the home.                         No physical

occupation   or     entry    without    a    warrant11   or    without      consent

occurred, was attempted, or was even contemplated.12

       ¶128 Two,    the   Milewskis    have    received       full    due   process

hearings in three courts——in the circuit court, in the court of

appeals, and in this court.           Furthermore, the Milewskis retained

and exercised rights under the statutes to a hearing in which

they    challenged    the     assessment      as   excessive         on   specified

grounds.

       ¶129 The    lead     opinion    misleadingly      suggests         that     the

Milewskis have been subjected to a tax and "have been forbidden

any process by which to challenge it."               Lead op., ¶24.              Three


     Any request to view the interior of the property must be
reasonable, made in writing, and delivered by certified mail.
Wis. Stat. § 70.47(7)(aa).
       11
       Wisconsin  Stat.  § 66.0119  provides  for                          "special
inspection warrants" for many purposes, including                         "property
assessment."

     In Camara v. Mun. Court, 387 U.S. 523 (1967), the Court
required a municipal health inspector to obtain a warrant to
conduct routine interior inspections for evidence of building
code violations.
       12
        Compare G.M. Leasing Corp. v. United States, 429 U.S.
338, 358 (1977) (concluding that the government's nonconsensual
search of a business office and seizure of furnishings, books,
and records contained therein was unreasonable and in violation
of   the   Fourth  Amendment  absent   a  warrant   or  exigent
circumstances).


                                        8
                                                                No.   2015AP1523.ssa


courts     have   addressed        the     Milewskis'      objections     to     the

assessment of their home and their challenge to the statutes at

issue.     The Milewskis went the "whole nine yards" and lost on

the merits in two courts.

     ¶130 Moreover, the lead opinion misleadingly suggests that

as a result of the challenged statutes, the Milewskis lose "the

ability to contest their increased tax burden."                    Lead op., ¶¶24

n.9, 68.     But property owners who refuse to allow an assessor an

actual     view   of     the     real    property   may      nevertheless      avail

themselves of procedures to challenge the legitimacy, nature,

and scope of the assessment.

     ¶131 Indeed,        the     Milewskis    availed     themselves     of    their

statutory    right      to   a   hearing     challenging     the    assessment   as

excessive.        The    Milewskis       brought    claims     against    Gardiner

Appraisal Service, LLC, the Town's assessor.                       They had a due

process hearing in circuit court in which they sought damages

from the Town's assessor on a claim of excessive assessment and

retaliation or coercion.13          See Wis. Stat. § 70.503.14

     13
       The   Wisconsin   statutes   include   protection  against
intentional (retaliatory) assessments.       Should an assessor
attempt to punish a property owner by imposing a punitive
assessment, the assessor risks not only a fine but liability for
the amount of the excess tax imposed on the property owner.
     14
       Wisconsin Stat. § 70.503 provides for civil liability of
an assessor as follows:

     Civil liability of assessor or member of board of
     review.    If any assessor, or person appointed or
     designated under s. 70.055 or 70.75, or any member of
     the board of review of any assessment district is
     guilty of any violation or omission of duty as
     specified in ss. 70.501 and 70.502, such persons shall
                                                     (continued)
                                9
                                                             No.   2015AP1523.ssa


      ¶132 The     court    of   appeals   affirmed   the    circuit      court's

dismissal     of    these    retaliatory     assessment      claims       against

Gardiner Appraisal Service, holding that there was no evidence

that Gardiner Appraisal Service intentionally violated the law

by performing the assessment in a retaliatory manner.15                       The

Milewskis did not seek review of this dismissal in this court.

      ¶133 Property owners also have the right to a due process

hearing if they claim that the request to view the interior of

the    real   property       was    unreasonable.           See    Wis.     Stat.

§§ 70.05(4m), 70.47(7)(aa).          The Milewskis do not assert that




      be liable in damages to any person who may sustain
      loss or injury thereby, to the amount of such loss or
      injury; and any person sustaining such loss or injury
      shall be entitled to all the remedies given by law in
      actions   for  damages   for  tortious   or  wrongful
      acts. . . .

     Wisconsin Stat.     § 70.501          provides   for     an    assessor's
forfeiture to the state:

      Fraudulent valuations by assessor.    Any assessor, or
      person appointed or designated under s. 70.055 or
      70.75, who intentionally fixes the value of any
      property assessed by that person at less or more than
      the true value thereof prescribed by law for the
      valuation of the same, or intentionally omits from
      assessment any property liable to taxation in the
      assessment   district,   or   otherwise   intentionally
      violates or fails to perform any duty imposed upon
      that person by law relating to the assessment of
      property for taxation, shall forfeit to the state not
      less than $50 nor more than $250.
      15
       See   Milewski   v.  Town   of   Dover,  No.   2015AP1523,
unpublished slip op., ¶¶22-25 (Wis. Ct. App. May 4, 2016).


                                      10
                                                                         No.   2015AP1523.ssa


the    assessor's        written    request          to   view    their    real    property

violated the statutory requirements.16

       ¶134 To be clear, the Milewskis were afforded due process

of    law.         The   Milewskis       challenged          in   the    courts    the    tax

assessment         system   that    led       to    the     assessment    of    their     real

property.          The Milewskis also had statutory rights to the Board

of Review's determination of whether the assessment of their

property was excessive and retaliatory and whether the request

for     an    actual     view      of    their        property      violated      statutory

requirements.

       ¶135 Two       realities:          No       search    of   the    Milewskis'      home

occurred.          The Milewskis had a hearing under the statutes, and

they        challenged      the     assessment            as      excessive       in    court

proceedings.

                                               II

       ¶136 The task of prescribing a uniform method for valuing

property for taxation purposes lies with the legislature.                               Since

the 19th century, the legislature has directed assessors how to
value       real    property.           The    present         statute    is   Wis.      Stat.

§ 70.32(1).



       16
       Any request to view the property must be reasonable, made
in writing, and delivered by certified mail.         Wis. Stat.
§ 70.47(7)(aa).   The Milewskis do not assert that they were
unable to permit a view at the suggested time. Indeed, had this
been their reason for refusing the assessor a view of the
interior of the home, the Milewskis would have been given a
chance to reconsider their refusal, even after seeing the
proposed assessment.   See Wisconsin Property Assessment Manual
at 21-16.


                                               11
                                                             No.   2015AP1523.ssa


       ¶137 The      lead    opinion        rests     on     a     fundamental

misinterpretation of Wis. Stat. § 70.32(1).

       ¶138 The lead opinion concludes that an assessment can be

based either on an actual view or on the best information that

the assessor can practicably obtain, and that the legislature

has not expressed a preference for one method over the other.

The inevitable result of this reading is that the property owner

can dictate the valuation methodology by refusing to allow an

assessor an actual view of the real property.

       ¶139 The lead opinion at ¶51 reaches this interpretation by

relying solely on the text of the phrase "from actual view or

from    the   best   information   that     the   assessor   can   practicably

obtain" in the first sentence of Wis. Stat. § 70.32(1):

       70.32 Real Estate, How Valued (1) Real property shall
       be valued by the assessor in the manner specified in
       the Wisconsin property assessment manual provided
       under [Wis. Stat. §] 73.03(2a) from actual view or
       from the best information that the assessor can
       practicably obtain . . . . (Emphasis added.)
       ¶140 This narrow, either/or reading of the statute based on

the text of only one phrase in a lengthy statutory provision

contravenes the basic rule of statutory interpretation that a

statute be interpreted in context.17              Rather than reading this

phrase in isolation, it should be read in the context of the

entire section, in the context of the tax assessment statutes,

       17
       See Wis. Carry v. City of Madison, 2017 WI 19, ¶20, 373
Wis. 2d 543,   892  N.W.2d 233  ("We   examine   the  statute's
contextualized words, put them into operation, and observe the
results to ensure we do not arrive at an unreasonable or absurd
conclusion.").


                                       12
                                                          No.   2015AP1523.ssa


in the context of prior judicial interpretation of the statute,

and to avoid unreasonable or absurd consequences.18              This court

has   instructed   that   the   appropriate   valuation    methodology     is

determined by looking "at the governing statutes, reviewed in

conjunction with basic principles of real property assessment as

described by case law, treatises, and the [Wisconsin] Property

Assessment Manual."19

      ¶141 Section 70.32(1) of the Wisconsin Statutes provides in

full as follows:

      Wis. Stat. § 70.32 (1) Real property shall be valued
      by the assessor in the manner specified in the
      Wisconsin property assessment manual provided under s.
      73.03(2a)   from  actual   view   or   from  the   best
      information that the assessor can practicably obtain,
      at the full value which could ordinarily be obtained
      therefor at private sale.    In determining the value,
      the assessor shall consider recent arm's-length sales
      of the property to be assessed if according to
      professionally acceptable appraisal practices those
      sales   conform  to   recent   arm's-length  sales   of
      reasonably comparable property; recent arm's-length
      sales of reasonably comparable property; and all
      factors that, according to professionally acceptable
      appraisal practices, affect the value of the property
      to be assessed. (Emphasis added.)
      ¶142 A reading of the full text of Wis. Stat. § 70.32(1)
demonstrates that the legislature has given assessors several

instructions about valuation of real property that inform the


      18
       See, e.g., Berkos v. Shipwreck Bay Condo. Ass'n, 2008 WI
App 122, ¶8, 313 Wis. 2d 609, 758 N.W.2d 215 ("Also relevant to
a statute's plain meaning is prior case law interpreting the
statute.")
      19
       Walgreen Co. v. City of Madison, 2008 WI 80, ¶19, 311
Wis. 2d 158, 752 N.W.2d 687.


                                    13
                                                                  No.    2015AP1523.ssa


interpretation of the statute's phrase "actual view or from the

best information that the assessor can practicably obtain":

       • The legislature has instructed assessors to value real

            property      according        to      the        Wisconsin      Property

            Assessment Manual.

       • The legislature has instructed assessors to value real

            property      according       to     "professionally           acceptable

            appraisal practices."

       • The      legislature      has    instructed          assessors    to    use   a

            hierarchy of valuations to value real property.

       • As       judicially       interpreted,          the     legislature         has

            expressed a preference for valuation on the basis of

            an   actual   view     of    the    real    property,       although     the

            legislature      has   recognized          that    valuation     requires

            attention to other enumerated statutory factors and

            the judgment and expertise of the assessor.

    ¶143 The      first   statutory       direction      to     assessors       in   Wis.

Stat. § 70.32(1) is that real property be valued in the manner
specified   in    the   Wisconsin       Property      Assessment     Manual.         The

Manual is published annually by the Department of Revenue.                            The

legislature      envisions   the    Manual       as    setting     forth     accepted

assessment methods and reflecting advances in the science of

assessment, court decisions, and other information considered

valuable    to    local   assessors.            Wisconsin       Stat.     § 73.03(2a)

provides in relevant part as follows:

    The manual shall discuss and illustrate accepted
    assessment methods, techniques and practices with a
    view to more nearly uniform and more consistent
    assessments of property at the local level.      The
                             14
                                                            No.    2015AP1523.ssa

     manual shall be amended by the department from time to
     time to reflect advances in the science of assessment,
     court   decisions   concerning    assessment   practices,
     costs,   and    statistical    and    other  information
     considered   valuable   to  local    assessors   by   the
     department.
     ¶144 Assessors    must   adhere       to   the    Manual,    but   when   an

assessment is based on a directive in the Manual that does not

properly   interpret      Wisconsin     law,     the    assessment      may    be

erroneous as a matter of law.20

     ¶145 The Wisconsin Property Assessment Manual mandates that

"actual view requires a detailed viewing of the interior and

exterior of all buildings and improvements and the recording of

complete   cost,   age,    use,   and      accounting    treatments."          See

Wisconsin Property Assessment Manual at 10-55.21                  This interior

view requirement makes sense.         The assessor hired by the Town of

Dover in the instant case asserts that the interior of a home

constitutes about 70% of its value.22


     20
       Metro. Holding Co. v. Bd. of Review, 173 Wis. 2d 626,
632, 495 N.W.2d 314 (1993).
     21
       That an actual view requires an assessor to view the
interior of real property is an observation echoed throughout
the Wisconsin Property Assessment Manual. For example, at 6-12,
the Manual explains that "data collected on each property should
be complete, accurate, and consistent," requiring, inter alia,
that the assessor "[v]iew the interior of the building,
recording physical data."     The Manual explains further that
"[p]hysical characteristics such as age, condition, design,
layout, quality of construction materials, and workmanship all
have an effect on the value of improvements."          Wisconsin
Property Assessment Manual at 9-20.       These characteristics
necessarily depend on an interior view.
     22
       Gardiner Appraisal Service is a party in the instant case
and filed a brief.


                                      15
                                                                       No.     2015AP1523.ssa


      ¶146 The lead opinion maintains that there is no need for

an interior inspection of the Milewski home.                          Lead op. ¶¶51-52.

Wrong!     There is!

      ¶147 An assessor for the Town of Dover was last in the

interior of the Milewskis' residence in 2004.                          According to its

affidavit, Gardiner Appraisal Services could not verify whether

any remodeling had been performed since then.                            Thus, when the

assessor attempted to set a valuation for the Milewskis' house

without      an     interior      inspection,       he       "could     not     accurately

determine         the    effective      physical,        functional       and      economic

obsolescence of the structure, curable or non-curable. . . .                                 A

single     remodel       project,    like    a    kitchen       or    bath,     could    have

significantly increased the value of the home."23

      ¶148 A       second    reason      a   view      of      the    interior      of    the

Milewskis' home was especially crucial is that the Town was

conducting a full revaluation of all real property in the Town's

jurisdiction.           A full revaluation refers to an assessment of all

the   real    property       in   the   Town.          See   Wis.      Stat.    §§ 70.045,
70.05(5).         A full revaluation is required periodically "to meet

the requirements of fair and uniform assessment."                                 Wisconsin

Property Assessment Manual at 4-1.

      ¶149 Accordingly,           the     assessor        in     the     instant         case,

Gardiner     Appraisal       Services,       performed        the    appraisal      of    the

Milewskis' house while doing a full revaluation of all the real

property     in     the    Town   of    Dover     to     establish      new,      equitable

      23
       Defendant-Respondent, Gardiner Appraisal Service, LLC's,
Response Br. at 8.


                                             16
                                                                               No.    2015AP1523.ssa


assessments      for    all        real   properties.               The     written         contract

between    the    Town       of     Dover    and     Gardiner          Appraisal            Services

required,   inter       alia,        that    "[the]       assessor[]            will        view    the

exterior and interior of all structures unless denied access

after mailing a request to owner by certified mail."

       ¶150 Requiring assessors to undertake an actual view of the

real   property        in    a     revaluation       is        a    valid       and       reasonable

application       of        Wis.     Stat.        § 70.32(1),             the        Manual,        and

professional appraisal practices.

       ¶151 The    second          direction       in     Wis.       Stat.       § 70.32(1)          to

assessors regarding valuation is that the assessors comply with

"professionally        acceptable         appraisal        practices."                    Emphasizing

the    importance           of     the      phrase,        the        statute             references

"professionally acceptable appraisal practices" three times.                                         In

its last use of the phrase, Wis. Stat. § 70.32(1) explicitly

states that "[i]n determining the value . . . the assessor shall

consider . . . all           factors        that,       according         to     professionally

acceptable appraisal practices, affect the value of the property
to be assessed."

       ¶152 The Department of Revenue is directed to illustrate

accepted    assessment             methods     in        the       Manual.            Wis.     Stat.

§ 70.03(2a).

       ¶153 Viewing         the     interior        of    a        building          is    surely    a

"professionally         acceptable           appraisal             practice."               Gardiner

Appraisal     Service's           brief     and     affidavit          cite          (and     include




                                              17
                                                               No.    2015AP1523.ssa


excerpts from) the Appraisal Institute's24 text Appraisal of Real

Estate    at    219-20    (14th   ed.    2013),     which   Gardiner     Appraisal

Services describes as "a widely accepted treatise on assessment

methods."25

     ¶154 The text states that "the importance of a site visit

should    not   be     underestimated."        An   appraiser's      primary   task

during    a     site     visit    is    to    write   a     "thorough     building

description" that "helps the appraiser identify the extent and


     24
       The Appraisal Institute describes itself as "the world's
leading organization of professional real estate appraisers,"
and "has led the way in fostering and promoting the highest
standards of [appraisal] practice through its designation
programs,   peer   review   process,  education,  research  and
publishing              endeavors."                         See
http://www.appraisalinstitute.org/about/.
     25
       This text has been cited in numerous Wisconsin cases in
which an appraisal or appraisal technique has been at issue.
See, e.g., Walgreen Co. v. City of Madison, 2008 WI 80, ¶3, 311
Wis. 2d 158, 164–65, 752 N.W.2d 687, 690 ("This holding is
consistent with the nationally recognized principle that '[a]
lease never increases the market value of real property rights
to the fee simple estate.'    Appraisal Institute, The Appraisal
of Real Estate 473 (12th ed. 2001)."); ABKA Ltd. P'ship v. Bd.
of Rev. of Vill. of Fontana-on-Geneva Lake, 231 Wis. 2d 328,
354, 603 N.W.2d 217 (1999) (Wilcox, J., dissenting) (citing The
Appraisal Institute, The Appraisal of Real Estate 478 (11th ed.
1996)); Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 781, 580 N.W.2d
644 (1998) (citing The Appraisal Institute, The Appraisal of
Outdoor Advertising Signs (1994)).      See also Adams Outdoor
Advert., Ltd. v. City of Madison, 2006 WI 104, ¶114 n.29, 294
Wis. 2d 441, 717 N.W.2d 803 (Abrahamson, C.J., dissenting)
(citing Ron L. Nation & Donald P. Oehlrich, The Valuation of
Billboard Structures, The Appraisal Journal, Oct. 1999, at 242
(publication of the Appraisal Institute).

     Reference was also made to another Appraisal Institute
publication titled Summary Appraisal Report: Residential (2013)
for similar statements.


                                         18
                                                                            No.    2015AP1523.ssa


quality    of     building       improvements,             calculate    their          cost,    and

identify    physical       deterioration             and    functional        obsolescence."

The Appraisal of Real Estate at 220-21.

     ¶155 Further emphasizing the importance of an exterior and

interior view of real property as a professionally acceptable

appraisal practice, the text goes on to explain that if a site

visit     was    not    made,       the    appraisal        report     must        clearly      and

conspicuously describe the "extraordinary assumption that the

site and building characteristics are as described even though

the appraiser has not confirmed that information through a site

visit."     The Appraisal of Real Estate at 220.

     ¶156 This          expressed,        explicit         distrust     of        an   appraisal

conducted        without       an    exterior        and     interior        view       strongly

supports        the    proposition         that      an     on-site     inspection         is       a

professionally          accepted       appraisal           practice;        valuations         made

without on-site inspections should be the exception and not the

rule for professional appraisers.26

     ¶157 An          actual    view      of   the    interior        and    exterior          of   a
building        is,    without       question,        a     professionally             acceptable

appraisal technique.

     ¶158 The          third        legislative           direction     in         Wis.    Stat.

§ 70.31(1) to assessors regarding valuation of real property is

that they comply with the hierarchy of valuation methodologies.

     26
       Fannie Mae, to which the Gardiner Appraisal Services
affidavit refers, also requires the inspection of the interior
and exterior of a building for an appraisal.   See Fannie Mae,
"Appraisal and Property Report Policies and Forms Frequently
Asked Questions (FAQs)" at 4.


                                               19
                                                                     No.    2015AP1523.ssa


Assessors are obligated to follow what is known as the Markarian

three-tier hierarchy to value real property.27                      See State ex rel.

Markarian     v.     City    of   Cudahy,       45    Wis. 2d 683,    173    N.W.2d 627

(1970).      The hierarchy set forth in § 70.32(1) and case law is

as follows.

      ¶159 First tier:            An assessor must base the assessment of

the   subject      property       on    a   recent      arm's-length       sale   of   the

property, if available.28               This is perhaps the only assessment

methodology that does not rely on data gleaned from an actual

view of the real property.

      ¶160 Of        course,      a    recent      arm's-length      sale    ordinarily

represents a consideration by the buyer of the interior and

exterior of the real property.                    Rational prospective homebuyers

would      inspect    the    real      property       and    not   simply    rely   on   a

seller's     representations           of   the      home,   the   record    of   permits

pulled      for    the      home,      or   the      assessed      value    of    similar

properties.




      27
       "'An assessor has an obligation to follow the three tier
assessment analysis.'"   Regency West Apartments LLC v. City of
Racine, 2016 WI 99, ¶26, 372 Wis. 2d 282, 888 N.W.2d 611
(quoting Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI
104, ¶47, 294 Wis. 2d 441, 717 N.W.2d 803). See also Wisconsin
Property Assessment Manual at ch. 9.
      28
       See Adams Outdoor Advert., Ltd. v. City of Madison, 2006
WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803 ("Evidence of an
arms-length sale of the subject property is the best evidence of
true cash value.") (citing State ex rel. Keane v. Bd. of Review,
99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct. App. 1980)).


                                             20
                                                               No.   2015AP1523.ssa


     ¶161 Second Tier:        If the subject property was not recently

sold,     an   assessor    must    base   the     assessment   of    the   subject

property on sales of reasonably comparable property.

     ¶162 The sales comparison approach is "based on the premise

that similar properties will sell for similar prices on the open

market."       Wisconsin Property Assessment Manual at 9-24.                   The

Manual requires using the sale price of properties that are

"similar to the subject property in age, condition, use, type of

construction, location, design, physical features and economic

characteristics."         Wisconsin Property Assessment Manual at 9-24.

An important consideration in determining whether properties are

comparable is the improvements.29

     ¶163 Third      Tier:    If    no    sales    of   reasonably    comparable

properties are available, an assessor may assess the subject

property using other assessment methodologies, such as cost and

income.30      In assessing under this tier, an assessor may consider

     29
       Rosen v. City of Milwaukee, 72 Wis. 2d 653, 686, 242
N.W.2d 681 (1976) ("Important considerations in determining
whether particular property is sufficiently similar to the
property being assessed to warrant reliance on its sale price as
evidence of market value include its location, including the
distance from the assessed property, its business or residential
advantages or disadvantages, its improvements, size and use.").
     30
       See, e.g., Adams Outdoor Advert., Ltd. v. City of
Madison, 2006 WI 104, ¶34, 294 Wis. 2d 441, 717 N.W.2d 803
("Only if there has been no arms-length sale and there are no
reasonably comparable sales may an assessor use any of the
third-tier assessment methodologies.") (citing State ex rel.
Keane v. Bd. of Review, 99 Wis. 2d 584, 590, 299 N.W.2d 638 (Ct.
App. 1980)); Great Lakes Quick Lube, LP v. City of Milwaukee,
2011 WI App 7, ¶¶17-18, 331 Wis. 2d 137, 794 N.W.2d 510 (citing
Allright Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶11,
317 Wis. 2d 228, 767 N.W.2d 567).


                                          21
                                                                       No.   2015AP1523.ssa


"all the factors collectively which have a bearing on value of

the   property        in     order    to    determine    its    fair-market       value."

Markarian,       45    Wis. 2d at       686.         Gardiner       Appraisal    Services

asserts that without accurate information from an interior view

of the real property, it "is not possible to do an accurate

cost, market, or income approach to valuation."

      ¶164 A final direction to assessors comes from case law

interpreting          Wis.    Stat.    § 70.32(1)     and     its    precursors.       The

court      has   recognized          that   the     legislature       has    expressed     a

preference for assessments based on an actual view of the real

property      and      that    the    legislature       has    also    concluded      that

valuation        requires      attention       to    other     enumerated       statutory

factors and requires the judgment and expertise of the assessor.

      ¶165 In the 1860s, the precursor to Wis. Stat. § 70.32(1)

referred to an "actual view" and enumerated various factors to

be    considered        in    valuation,       including       "all    buildings"        and

"improvements of every description thereon."31                         The disjunctive

      31
       See Wis. Stat. ch. 18, § 31 (1871) (cited in March v.
Board of Supervisors, 42 Wis. 502 (1877)). This statute states
that real property shall be valued by the assessor from actual
view and does not mention an alternative "best information" but
enumerates factors to be considered. It provides as follows:

      § 31.   Real property shall be valued by the assessor
      from actual view at the full value which could
      ordinarily be obtained therefor at private sale, and
      which the assessor shall believe the owner, if he
      desires to sell, would accept in full payment.     In
      determining the value the assessors shall consider as
      to each piece, its advantage or disadvantage of
      location, quality of soil, quantity and quality of
      standing timber, water privileges, mines, minerals,
      quarries, or other valuable deposits known to be
      available therein, and all buildings, fixed machinery
                                                     (continued)
                                22
                                                                    No.    2015AP1523.ssa


phrase    "or     from   the   best    information        that    the     assessor    can

practicably obtain" was later added to the statute.32

     ¶166 In        considering        the      statute     that         included     the

disjunctive        phrase,     the    court     accepted    the      idea     that    the

legislature expressed a preference for an actual view.                                The

court     did    not,    however,     invalidate    the     assessment        when    the

assessor        failed   to    undertake      an   actual        view.      The      court

acknowledged that "[i]t may be that a valuation from actual view

is always possible, but it is not always practicable."                            Boorman


     and improvements of every description thereon, and
     their value. Real property held under lease from any
     religious,   scientific,    literary  or    benevolent
     association, but otherwise exempt, shall be assessed
     to the lessee.    The assessor having fixed the value
     shall enter the same opposite the proper tract in the
     assessment roll. Property omitted from assessment the
     previous year by mistake, shall be entered twice,
     designating one entry as omitted for the year 18——.
     (Emphasis added.)
     32
       See Wis. Stat. ch. 48, § 1052 (1889), which provides as
follows:

     Real property shall be valued by the assessor either
     from actual view or from the best information that the
     assessor can practicably obtain, at the full value
     which could ordinarily be obtained therefor at private
     sale.   In determining the value the assessor shall
     consider,   as  to  each   piece,  its   advantage  or
     disadvantage of location, quality of soil, quantity of
     standing timber, water privileges, mines, minerals,
     quarries, or other valuable deposits known to be
     available therein, and their value.      Real property
     held under lease from any religious, scientific,
     literary or benevolent association, but otherwise
     exempt, shall be assessed to the lessee.           The
     assessor, having fixed the value, shall enter the same
     opposite the proper tract or lot in the assessment
     roll. (Emphasis added.)


                                           23
                                                               No.   2015AP1523.ssa


v. Juneau County, 76 Wis. 550, 553, 45 N.W. 675 (1890).                        The

Boorman court surmised that the assessor was acquainted with the

property from prior years.33

      ¶167 In sum, Wis. Stat. § 70.32(1) addresses and provides

direction to assessors regarding the methodology of valuation.

With its explicit reference to "actual view"; its references to

the   Wisconsin       Property        Assessment    Manual,    "professionally

acceptable appraisal practices," and the hierarchy of assessment

methodologies;       and   its     longstanding    judicial    interpretation,

Wis. Stat. § 70.32(1) suggests a preference for actual view in

an assessment——meaning interior and exterior view——and at the

same time empowers assessors to use their judgment and expertise

within the parameters set forth in the statute.

      ¶168 The lead opinion's narrow, either/or reading of Wis.

Stat. § 70.32(1) breaches a contextual reading and breaks with

precedent.      The lead opinion's allowing the property owner in

effect     to   dictate      the      valuation    methodology       impairs   the

functioning of the tax assessment system.
      ¶169 Because the legislature has established a preference

for   an    actual    view       in   valuation    of   real     property,     the

legislature has also attempted to influence a property owner to

      33
       More recently, the court of appeals concluded that an
actual view was not required to conduct a comparable sales
analysis because the village assessor had been familiar with the
subject properties for 14 years. State ex rel. Kesselman v. Bd.
of Review, 133 Wis. 2d 122, 133, 394 N.W.2d 745 (Ct. App. 1986).
In Kesselman, "[t]he circuit court found that the assessor
failed to use the 'best information' available . . . because he
used only a drive-by inspection . . . ." Kesselman, 133 Wis. 2d
at 126-27.


                                         24
                                                                          No.   2015AP1523.ssa


permit an assessor an actual view of the real property.                              Indeed,

the legislature's decision to induce real property owners to

permit an assessor's actual view supports the proposition that

the legislature prefers that assessors have an actual view of

the real property.

                                                III

       ¶170 To        advance     the     significant,      legitimate          governmental

objective of uniformity and equity, the legislature has provided

a reasonable, constitutional inducement to property owners to

consent to an assessor's actual view of the real property:                                  The

legislature imposes a reasonable, constitutional limit on the

ability     of    a     property        owner     to    contest     the     amount    of    an

assessment       if    the    property      owner       prevents    the     assessor       from

having an actual view of the real property.

       ¶171 I     turn       to   the     state       constitutional       requirement      of

uniformity.       The Uniformity Clause of the Wisconsin Constitution

dates back to the 1848 Constitution.                        It provides in relevant

part    that     "[t]he      rule    of    taxation      shall     be    uniform     but    the
legislature may empower cities, villages or towns to collect and

return      taxes      on     real      estate        located    therein        by   optional

methods. . . . "            Wis. Const. art. VIII, § 1.                 See lead op., ¶3.

       ¶172 The Uniformity Clause requires that taxes be fairly

allocated        among       taxpayers.           Comparable       properties        in    the

district are to be assessed uniformly.34                          "The purpose of the
       34
       Clear Channel Outdoor, Inc. v. City of Milwaukee, 374
Wis. 2d 348, ¶37, 374 Wis. 2d 348, 893 N.W.2d 24 (quoting U.S.
Oil Co., Inc. v. City of Milwaukee, 2011 WI App 4, ¶25, 331
Wis. 2d 407, 794 N.W.2d 904 (2010)).


                                                25
                                                                              No.    2015AP1523.ssa


Uniformity      Clause     is    to    ensure         the    tax    burden          is     allocated

proportionally to the value of each person's property."                                           Lead

op., ¶47.

    ¶173 The        Uniformity         Clause         requires         the    same        measuring

stick to be applied to comparable properties.                                 "Satisfying the

Uniformity Clause requires . . . a uniform method of determining

the value of [] property . . . . "                      Lead op., ¶48.

    ¶174 The       valuation          of    real      property         depends       to     a    large

extent on the condition and quality of both the exterior and

interior of the real property.                         Thus, the requirement of an

actual     view    strongly          relates          to    the     state       constitutional

requirement of uniformity.

    ¶175 Inaccuracy             in    the     assessment          of    a     parcel        of    real

property may result in inaccurate, and potentially unjust, tax

assessments        of     other        real           properties         in         that        taxing

jurisdiction.       See lead op., ¶¶47-48; Noah's Ark Family Park v.

Bd. of Review, 210 Wis. 2d 301, 310-12, 565 N.W.2d 230 (Ct. App.

1997) (Ct. App. op. adopted as op. of the Wisconsin Supreme
Court, 216 Wis. 2d 387, 390, 394, 573 N.W.2d 852 (1998)).

    ¶176 The lead opinion asserts that the Town "contradict[s]

itself"    by     arguing       that       the    Uniformity           Clause       requires        an

"actual    view"    and     then       nevertheless           proceeds         to     assess      the

Milewski    real    property          using      other       assessment         methodologies.

Lead op., ¶51.          The lead opinion concludes that "[i]f proceeding

under this alternative was not consistent with the Uniformity

Clause,     then    the     Town       indicts             itself      for     violating          the
constitution . . . ."            Lead op., ¶51.

                                                 26
                                                                          No.    2015AP1523.ssa


      ¶177 The lead opinion stumbles.                    The Town's argument is not

contradictory:          Once the Town proceeded to assess real property

using     an    "actual       view,"       it    applied        the      same    methodology

throughout the Town complying with the Uniformity Clause and the

revaluation process.             The Milewskis prevented the use of the

same methodology for their property.                      When the Milewskis refused

to allow the assessor an actual view of the real property, they

prevented the Town from complying with the mandate under the

Uniformity Clause to apply a uniform method of valuation.                                  They

prevented      the    Town    from     treating        similarly        situated       property

owners similarly.            The Town had no choice but to use a different

method for valuing the Milewskis' real property.

      ¶178 The        Town     must     nevertheless            assess     the    Milewskis'

property.       The Milewskis cannot escape assessment and taxation

by refusing to allow the assessor to view the interior of the

real property.          To assess the Milewskis' real property, the Town

was   forced     to     use    the    "best      information          that      the   assessor

[could]     practicably         obtain"         in    accordance         with    Wis.      Stat.
§ 70.32(1).

      ¶179 To achieve even-handedness among real property owners

when a property owner refuses to allow an assessor an actual

view of the real property, the legislature imposes reasonable,

constitutional restrictions on the ability of property owners to

contest    the       amount    of     an   assessment.             The     Town       of   Dover

describes      achieving       this     goal     of     even-handedness           among    real

property       owners    in     terms      of        avoiding     the     "free-rider"        as
follows:

                                                27
                                                                     No.   2015AP1523.ssa

       If most homeowners allow the assessor into their homes
       to get an accurate assessment, but some homeowners are
       allowed to force the assessor to make his or her
       assessment without that crucial information and are
       still allowed to try to decrease their assessment by
       challenging it in other respects, the probable
       consequence is that wealthy homeowners will be able to
       avoid paying their fair share of taxes by hiding their
       interior improvements.35
       ¶180 Unless the assessor has access to the interior of the

real        property,    the      taxing     entity     is     at     a    significant

disadvantage in justifying its assessment when challenged by the

property owner.

       ¶181 When a property owner challenges an assessment, there

is a rebuttable presumption that the assessment is correct.36                         If

the property owner shows that the assessor has not adhered to

the statutes or the property owner presents significant contrary

evidence that establishes it is more probable than not that the

assessed value is not correct, the presumption ceases to apply.37

       ¶182 In     the    instant       situation,    the    property      owners   (and

their expert) know the interior of the real property but the

Town    (and    its     expert)    do    not.    If    the    Town    does    not   have

evidence regarding the interior of the real property, the Town

       35
       Brief of Defendant-Respondent Town of Dover and Board of
Review for the Town of Dover at 17.
       36
       Walgreen Co. v. City of Madison, 2008 WI 80, ¶17, 311
Wis. 2d 158, 752 N.W.2d 687; Adams Outdoor Advertising, Ltd. v.
City of Madison, 2006 WI 104, ¶26, 294 Wis. 2d 441, 717
N.W.2d 803.
       37
       Wis. Stat. § 70.47(13); Bonstores Realty One, LLC v. City
of Wauwatosa, 2013 WI App 131, ¶9, 351 Wis. 2d 439, 839
N.W.2d 893 (citing Wis. Stat. § 903.01 for the proposition that
an evidentiary presumption shifts the burden to the challenger).


                                            28
                                                                   No.    2015AP1523.ssa


cannot    rebut   the    property     owners'         evidence.      To    avoid     this

situation, the legislature has restricted the property owner's

ability to contest the amount of the assessment if the property

owner refuses the assessor an actual view.

    ¶183 According to the lead opinion, a property owner can,

without any adverse consequences, refuse an assessor an actual

view of the real property and apparently can still contest the

amount of the assessment.                 The result is two-fold:               (1) The

property    owner      and    the   Town    (which      represents       all   property

owners) are not on an equal, fair, level "playing field" in

debating the amount of the assessment; and (2) the decision

maker will not have the full information that the assessor could

provide    (if    he    or    she   had    an    actual    view)    upon       which    to

determine the amount of the assessment.                   As the court of appeals

concluded, "[t]he interior view of the home is one of the most

important pieces of evidence that the tax assessor must consider

when making an assessment.            No other means are as effective to

provide an accurate valuation."                 Milewski v. Town of Dover, No.
2015AP1523, unpublished slip op.,                    ¶19 (Wis. Ct. App. May 4,

2016).

    ¶184 An assessment decision resting on only one side's (the

property    owner's)         presentation       of    evidence    relating      to     the

interior of the property is very apt to be erroneous.                           The law

recognizes the importance of a decision's being based on full




                                           29
                                                                        No.   2015AP1523.ssa


and   complete       information.38          Restricting          the     ability    of     a

property     owner    who   refuses     the       assessor     an       actual    view     to

contest the amount of the assessment is thus necessary to assure

that both the property owner and the taxing entity have equal

access to material information and that the decision maker has

this information to enable it to establish a just and equitable

assessment.

      ¶185 The lead opinion asserts that the Milewskis may suffer

adverse       consequences,           "substantial            impediments,"               and

"evidentiary consequences" as a result of refusing the assessor

an actual view, but the lead opinion does not reveal them; they

are kept a secret, not to be divulged by the lead opinion.                                See

lead op., ¶26 n.11.         See also my discussion in Part VI of this

dissent,     asserting      that      the        meaning     of     the       mandate     is

clandestine.

      ¶186    Of     course,    the   legislature           could       have     chosen     a

different path to restrict the non-consenting property owner's

rights to contest the amount of an assessment.                          For example, the
legislature    could     have    permitted         the     non-consenting         property

owner to appear before the board to contest the amount of the

assessment but could have barred him or her from submitting any

evidence relating to the interior of the real property.



      38
       See, e.g., Elias v. State, 93 Wis. 2d 278, 285, 286
N.W.2d 559 (1980) ("The responsibility of the sentencing court
is to acquire full knowledge of the character and behavior
pattern of the convicted defendant before imposing [the]
sentence.").


                                            30
                                                                         No.   2015AP1523.ssa


      ¶187 Without        such      evidence,       in    all    likelihood,       the    non-

consenting    property       owner's        challenge       to    the     amount     of    the

assessment would be dismissed.                   The result would be the same as

the   legislature's        simply         barring    from       the   outset      the     non-

consenting    property      owner         from    contesting       the    amount     of    the

assessment.       The legislature's decision to bar a non-consenting

property owner from contesting the amount of the assessment is

different in form, but not in substance, from barring a non-

consenting      property        owner      from     introducing         evidence.          The

legislature has made a sound, constitutional policy choice that

this court should not overturn.

      ¶188 In      sum,    an       interior      (and     exterior)       view    of     real

property (an actual view) is germane to, and has an extremely

powerful nexus with, valuation and assessment.                           The legislature

has   a   strong    interest         in    inducing       real    property        owners   to

consent to an assessor's actual view of the real property and to

treat property owners who do consent differently in contesting

the amount of an assessment from property owners who do not
consent.      The challenged statutes compellingly relate to the

governmental interest of uniform taxation and fairness to all

property owners.

      ¶189 With the robust government interest in uniformity and

fairness     in    mind,        I    examine        the     Fourth       and    Fourteenth

Amendments.

      ¶190 To recap, according to the lead opinion, the statutes

force an unconstitutional choice on property owners: On the one
hand, consent to an assessor's viewing the interior of a home

                                             31
                                                             No.    2015AP1523.ssa


(relinquishing a protected Fourth Amendment right) and retain

the right to a hearing in which to contest the amount of the

assessment (a procedural due process right), and on the other

hand, refuse to consent to an assessor's viewing the interior of

a    home   (maintaining   a   protected    Fourth    Amendment      right)     and

relinquish the right to a hearing in which to contest the amount

of    the   assessment     (relinquishing    a   procedural        due     process

right).      I disagree with this portrayal of a constitutional

dilemma.

       ¶191 As noted above, there was no search, and the Milewskis

have had due process hearings in which they have asserted their

challenge to the assessment and the statutes.

       ¶192 Moreover, the touchstone of the Fourth Amendment is

reasonableness.     Brigham     City   v.   Stuart,    547    U.S.       398,   403

(2006).      Not all searches violate the Fourth Amendment, only

unreasonable ones.         The determination of whether a particular

search is reasonable must be made by "balancing its intrusion on

the    individual's      Fourth    Amendment     interests         against      its
promotion of legitimate governmental interests."                    Delaware v.

Prouse, 440 U.S. 648, 654 (1979).39

       ¶193 Recently, the United States Supreme Court explained

the reasonableness standard in Fourth Amendment jurisprudence

       39
       Ohio    v.   Robinette,  519    U.S.   33,   39   (1996)
("Reasonableness, in turn, is measured in objective terms by
examining the totality of the circumstances."); State v.
Gaulrapp, 207 Wis. 2d 600, 607, 558 N.W.2d 696 (Ct. App. 1996)
("[T]he Fourth Amendment's touchstone is reasonableness, which
is measured in objective terms by examining the totality of the
circumstances.").


                                       32
                                                                 No.    2015AP1523.ssa


and   the   balancing    of     the     intrusion       and    the      governmental

interests as follows:

      Borrowing from our Fifth Amendment jurisprudence, the
      United States suggests that motorists could be deemed
      to have consented to only those conditions [a blood
      draw] that are "reasonable" in that they have a
      "nexus" to the privilege of driving and entail
      penalties that are proportional to severity of the
      violation. Brief for United States as Amicus Curiae
      21–27. But in the Fourth Amendment setting, this
      standard does not differ in substance from the one
      that we apply, since reasonableness is always the
      touchstone of Fourth Amendment analysis, see Brigham
      City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943,
      164 L. Ed. 2d 650 (2006). And applying this standard,
      we conclude that motorists cannot be deemed to have
      consented to submit to a blood test on pain of
      committing a criminal offense.
Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016).

      ¶194 The   challenged      statutes      do    not     require     a   property

owner to relinquish a Fourth Amendment right by permitting an

assessor's entry into the home.

      ¶195 Rather,    the     statutes       offer    the     property       owner   an

incentive, an inducement, to consent to an assessor's entry into

the home.    An entry in the home is an intrusion.                     But the level

of intrusion for tax assessment purposes is less of an intrusion
on personal privacy and dignity than other searches.

      ¶196 A tax assessor would not be rummaging through a real

property    owner's   personal    effects,       file       cabinets,     computers,

closets,    medical   cabinets,       drawers,      locked    cabinets       or   other

private materials not germane to valuing the physical attributes

of the real property.         Moreover, the amount of time taken by an
assessor to view the home is ordinarily much shorter than the

time taken in a search conducted in the course of a criminal
                                        33
                                                            No.   2015AP1523.ssa


investigation.40      In an assessment search, the property owner is

not singled out as the object of official suspicion.                 Nothing is

seized.        The property owner is given advance notice and the

entry is at a convenient time for the property owner.                       The

property owner may remove or conceal any personal effects before

the assessor arrives.

       ¶197 The legislature's inducement to obtain the property

owner's consent to the assessor's entry is to require the non-

consenting property owner to forgo a hearing at which the owner

may contest the amount of the assessment.                 The inducement is

more    than    reasonable   in   light    of   the   governmental    interests

involved.

       ¶198 In examining the procedural due process issue the lead

opinion raises, I note that the touchstone of procedural due

process is that due process is "flexible and requires only such

procedural protections as the particular situation demands."41

"Since the time of [its] early explanations of due process," the


       40
       "[T]he purpose for the [governmental] interference bears
upon the intrusiveness of government action.         A criminal
investigation is generally more intrusive than an administrative
or regulatory investigation . . . ."    Widgren v. Maple Grove
Twp., 429 F.3d 575, 584 (6th Cir. 2005) (citing 5 Wayne R.
LaFave et al., Search and Seizure:     A Treatise on the Fourth
Amendment § 10.1(b) (4th ed. 2004)).
       41
        State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 512,
261 N.W.2d 434, 444 (1978) ("[D]ue process is satisfied if the
statutory procedures provide an opportunity to be heard in court
at a meaningful time and in a meaningful manner. . . .       Due
process   is   flexible  and   requires   only  such  procedural
protections as the particular situation demands.") (citing
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).


                                      34
                                                           No.    2015AP1523.ssa


United States Supreme Court has "understood the core of the

concept     to   be   protection   against    arbitrary    action."42       The

challenged statutes are not arbitrary; they are reasonable and

germane to significant governmental interests.

      ¶199 As discussed above, the parties will not be on an

equal footing at a hearing to determine the assessment if the

Town will not have information about the interior of the real

property to defend its assessment.           The decision maker will not

have the benefit of full information upon which to establish an

assessment.        The non-consenting property owner may thus be able

to distort its assessment to the detriment of the other property

owners and to impinge on the Town's ability to comply with the

Uniformity Clause.

      ¶200 The legislative restriction upon the Milewskis' right

to contest the amount of the assessment is more than reasonable

under      the   circumstances.      The   statutes   do    not    impose    an

arbitrary restriction on the property owner and do not violate

due     process.       Considering   the     countervailing       governmental
interest in uniform taxation, the challenged statutes do not

constitute government action arbitrarily limiting the Milewskis'

due process rights.

      ¶201 In sum, bearing in mind the interests of the real

property owner and the public, I conclude that the options the


      42
       Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998);
accord Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The
touchstone of due process is protection of the individual
against arbitrary action of government.").


                                      35
                                                                  No.   2015AP1523.ssa


legislature    offered     to     the   Milewskis      do   not    impair,    to   an

appreciable extent, the rights involved and do promote, to an

appreciable extent, weighty governmental interests.

                                        IV

    ¶202 I conclude that the options the legislature offers the

property    owner   are    constitutionally         sound    government-imposed

"tough"     choices.       I    analogize     the   challenged          statutes   to

Wisconsin's Implied Consent Law, Wis. Stat. § 343.305.

    ¶203 Tough         choices,     even     choices    that      discourage       the

exercise of a Fourth Amendment right, are common in the law and

are viewed as voluntary and constitutionally valid:

    The criminal process, like the rest of the legal
    system, is replete with situations requiring the
    making of difficult judgments as to which course to
    follow.   Although a defendant may have a right, even
    of constitutional dimensions, to follow whichever
    course he chooses, the Constitution does not by that
    token always forbid requiring him to choose.43
The lead opinion apparently refuses to accept that such a choice

is valid.    See, e.g., lead op., ¶68 n.29.

    ¶204 In Wisconsin's Implied Consent Law, the State imposes
a choice on drivers.           The choice has the effect of discouraging

    43
       McGautha v. California, 402 U.S. 183, 213 (1971), reh'g
granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S.
941 (1972) (internal quotation marks and citations omitted)
("The contention is that where guilt and punishment are to be
determined by a jury at a single trial the desire to address the
jury on punishment unduly encourages waiver of the defendant's
privilege to remain silent on the issue of guilt, or, to put the
matter another way, that the single-verdict procedure unlawfully
compels the defendant to become a witness against himself on the
issue of guilt by the threat of sentencing him to death without
having heard from him.").


                                        36
                                                              No.   2015AP1523.ssa


the exercise of a Fourth Amendment right to be free from a

government   search   of    a   person's    body.    The   Wisconsin         Implied

Consent Law is constitutional.44

      ¶205 Under   the     Wisconsin    Implied     Consent    Law,      a   driver

faces the "difficult choice" between consenting to a blood draw

or refusing to consent to a blood draw and facing revocation of

the   driver's   license    and   the   prosecution's       use     of   "refusal

evidence" at trial.45       See State v. Padley, 2014 WI App 65, ¶27,

354 Wis. 2d 545, 849 N.W.2d 867.46            A blood draw is a search




      44
       See Missouri v. McNeely, 133 S. Ct. 1552, 1566 (2013)
("States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense.");
Birchfield, 136 S. Ct. at 2185 ("Our prior opinions have
referred approvingly to the general concept of implied-consent
laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply . . . and nothing we say here
should be read to cast doubt on them.").
      45
        The use of refusal evidence at trial has been held not to
violate due process.     North Dakota v. Neville, 459 U.S. 553
(1983); State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct.
App. 1980); State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905
(1986).
      46
       Although the Implied Consent Law seeks waiver of a Fourth
Amendment right in exchange for retaining the "privilege of an
operator's license," and, according to the lead opinion, the tax
assessment system seeks waiver of a Fourth Amendment right in
exchange for retaining a due process right to challenge the
assessment, the analogy is apt.

                                                                    (continued)
                                       37
                                                                            No.    2015AP1523.ssa


under    the    Fourth      Amendment.           It    is       "an   invasion          of   bodily

integrity"      and     "implicates        an    individual's            most     personal      and

deep-rooted expectations of privacy."                           Missouri v. McNeely, 133

S. Ct. 1552, 1558 (2013) (internal quotation marks and quoted

source omitted).

       ¶206 The Wisconsin property tax assessment system is, in

many    ways,    strikingly        similar       to    Wisconsin's          Implied          Consent

Law.      An    entry      into    a   home,     like       a    blood    draw,     implicates

significant privacy concerns; both are intrusions restricted by

the Fourth Amendment.               Both the tax assessment system and the

Implied    Consent         Law    impose    civil       consequences,             not    criminal

consequences,         if   the    individual          exercises       his    or     her      Fourth

     The United States Supreme Court has not distinguished
between a privilege and a right for these purposes. See, e.g.,
Sherbert v. Verner, 374 U.S. 398, 404 (1963) ("Nor may the South
Carolina court's construction of the statute be saved from
constitutional infirmity on the ground that unemployment
compensation benefits are not appellant's 'right' but merely a
'privilege.' It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or
privilege."); Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 571 (1972) ("[T]he Court has fully and finally rejected the
wooden distinction between 'rights' and 'privileges' that once
seemed to govern the applicability of procedural due process
rights."); Graham v. Richardson, 403 U.S. 365, 374 (1971) ("But
this Court now has rejected the concept that constitutional
rights turn upon whether a governmental benefit is characterized
as a 'right' or as a 'privilege.'"); Kerry v. Din, 135 S. Ct.
2128, 2143 (2015) (Breyer, J., dissenting) ("Justice SCALIA's
response——that nonconstitutional law creates an 'expectation'
that merits procedural protection under the Due Process Clause
only if there is an unequivocal statutory right,——is sorely
mistaken. His argument rests on the rights/privilege distinction
that this Court rejected almost five decades ago, in the seminal
case of Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011,
25 L. Ed. 2d 287 (1970).").


                                                38
                                                                No.    2015AP1523.ssa


Amendment       constitutional     right    to    refuse   to   consent      to   the

search.47

       ¶207 And although the Fourth Amendment right to refuse a

blood draw or a home entry can be exercised, the exercise comes

with civil statutory consequences.                The civil consequences are

supported   by     strong   governmental         interests.     Implied      consent

laws    serve    the   paramount    governmental       interest       of   enforcing

drunk-driving laws and, thus, protecting public safety.48                         The

tax assessment system serves the paramount government interest

of raising funds and ensuring uniform and fair taxation.

       ¶208 Considering      the     apt     analogy       between     Wisconsin's

Implied Consent Law and the Wisconsin tax assessment system,                       I

agree with the court of appeals' reasoning in the instant case

upholding the constitutionality of the statutory choice imposed

on the Milewskis:

       Here, Plaintiffs have the "right" to refuse to allow
       Gardiner access to their home, but the consequence

       47
       See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185
(2016) ("It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to impose criminal
penalties on the refusal to submit to such a test.     There must
be a limit to the consequences to which motorists may be deemed
to have consented by virtue of a decision to drive on public
roads."); Camara v. Mun. Ct., 387 U.S. 523, 540 (1967) ("We
therefore conclude that appellant has a constitutional right to
insist that the inspectors obtain a warrant to search and that
appellant may not constitutionally be convicted [of a crime] for
refusing to consent to the inspection.") (emphasis added).
       48
       See Birchfield, 136 S. Ct. at 2173 ("The States and the
Federal Government have a paramount interest . . . in preserving
[public highway] safety . . . .") (internal quotation marks and
quoted source omitted).


                                       39
                                                                  No.    2015AP1523.ssa

       that flows from the refusal is cessation of the right
       to challenge the tax assessment and pay without
       recourse. There is no due process violation; the
       choice belongs entirely to Plaintiffs.49
                                            V

       ¶209 Another way of depicting the unexceptional aspects of

the challenged tax assessment statutes is to analogize them to

the unremarkable principle of tax law that a taxpayer must make

full    disclosure      to    a    taxing        authority   or   face    civil    tax

consequences for failing to divulge information to the taxing

authority.        The        consequence         for   refusing    an     assessor's

reasonable request for an interior view is not retaliatory or

punitive.    Rather it is a legal, logical extension of the usual

rule that a taxpayer who has material information about his or

her tax matters must divulge it to the taxing authority.

       ¶210 The   United          States    Supreme      Court    explained       this

principle in Wyman v. James, 400 U.S. 309, 404 (1971).                              In

Wyman, the Court explained that disallowing a deduction (which

increased the tax, a taking of property according to the lead

opinion) was a valid consequence for the taxpayer's refusal to
submit proof substantiating the claimed deduction:

       [In a federal income tax dispute between a taxpayer
       and an IRS agent] an Internal Revenue Service agent,
       in making a routine civil audit of a taxpayer's income
       tax return, asks that the taxpayer produce for the
       agent's review some proof of a deduction the taxpayer
       has asserted to his benefit in the computation of his
       tax. If the taxpayer refuses, there is, absent fraud,
       only a disallowance of the claimed deduction and a
       consequent additional tax. The taxpayer is fully

       49
       Milewski v. Town of Dover, No.2015AP1523,                         unpublished
slip op., ¶21 (Wis. Ct. App. May 4, 2016).


                                            40
                                                                 No.    2015AP1523.ssa

     within his "rights" in refusing to produce the proof,
     but in maintaining and asserting those rights a tax
     detriment results and it is a detriment of the
     taxpayer's      own     making. . . . [N]othing    of
     constitutional magnitude is involved.
Wyman, 400 U.S. at 389.

     ¶211 Similarly,           this    court     has     confirmed       that      "the

privilege of appearing before the board of review and having

assessment       errors    corrected     is    coupled    with    a    duty   of   the

taxpayer to make full disclosure of information."                        Hermann v.

Town of Delavan, 215 Wis. 2d 370, 393, 572 N.W.2d 855 (1998)

(citing Wis. Stat. § 70.47(7)(a)).50

     ¶212 Wisconsin Stat. § 70.47(7)(a) explicitly disallows a

person "to question [in any action or proceeding] the amount or

valuation        of   property      unless . . . [the       person]      made      full

disclosure before said board, under oath of all that person's

property        liable    to   assessment . . . and       the    value     thereof."

Similarly, Wis. Stat. § 70.47(7)(af) states that no person may

object to a valuation if that valuation was made by the assessor

using     the    income    method     unless   the     person    supplies     to   the




     50
       In Hermann v. Town of Delavan, 215 Wis. 2d 370, 376, 572
N.W.2d 855, a group of taxpayers brought a claim under Wis.
Stat. § 893.80 alleging that the Town's method of assessment was
unfair and non-uniform.    Because the taxpayers' complaint did
not allege their prior compliance with the property tax appeal
procedures set forth in Wis. Stat. § 70.47, this court affirmed
the circuit court's dismissal of the taxpayers' complaint for
failing to state a claim for upon which relief could be granted;
the taxpayers had failed to exhaust the exclusive statutory
remedies addressing their overassessment claims, so their claims
were dismissed. Hermann, 215 Wis. 2d at 377.


                                         41
                                                            No.   2015AP1523.ssa


assessor all of the information about income and expenses that

the assessor requests.51

     ¶213 At the turn of the last century, Wisconsin Supreme

Court     Justice   Joshua   Eric   Dodge    eloquently        explained    the

rationale    behind   the    principle     that    the    taxpayer    who   has

information must disgorge the information (to which the taxing

authority    does   not   have   access)    in    order   to   challenge    the

assessment, to ensure that the property owner and the taxing

entity have a "level playing field" before the decision maker so

that the decision maker can allocate the burden of taxation

fairly:

     [The taxing authority] and the public are entitled
     that [the taxing authority] shall not be successfully
     attacked in court without full and frank disclosure
     from the taxpayer of the superior knowledge which he
     necessarily has upon the subject. It is perhaps
     utopian to expect of human selfishness voluntary
     original information . . . , but when one presents
     himself to give evidence against the amount which the
     assessor has fixed in the light, or obscurity, which
     necessarily surrounds him, it is but right that the
     taxpayer furnish all the enlightenment in his power
     without evasion or concealment. . . .

     51
       The legislature has barred taxpayers from challenging tax
assessments for personal property if the taxpayer failed to make
full disclosure.   See, e.g., Vill. of Westby v. Bekkedal, 172
Wis. 114, 121-22, 178 N.W. 451, 454 (1920) (taxpayer who did not
comply with statutory requirement to attend hearing and disclose
all income subject to assessment was estopped from challenging
the assessment); State ex rel. Foster v. Williams, 123 Wis. 73,
75, 100 N.W. 1052, 1052 (1904) (1903 Wis. Laws ch. 284, § 2,
barred the taxpayer from questioning the board's valuation
unless the taxpayer made full disclosure before the board, under
oath, of all his or her personal property liable to assessment
in the district and the value thereof; holding that evasive
answers do not constitute a full disclosure).


                                    42
                                                                  No.    2015AP1523.ssa


State      ex   rel.   Foster     v.   Williams,    123      Wis. 73,    76-77,     100

N.W. 1052, 1053 (1904).

      ¶214 By refusing to permit the assessor an interior view of

the   real      property,   the    property     owner    fails    to    make   a   full

disclosure to the taxing entity.                  Because the property owner

fails to make full disclosure, the owner is restricted from

contesting       the   amount     of   the     assessment.        By    holding    the

challenged       statutes       unconstitutional        as    applied,     the     lead

opinion essentially eviscerates the longstanding full disclosure

rule, to the detriment of uniformity and fairness.52


      52
       Less persuasive, but worth mentioning as some support for
the constitutionality of the challenged statutes, is that the
challenged statutes may be considered analogous to several
prerequisites a property owner must meet to contest the
assessment:

      • Wis. Stat. § 70.47(7)(a):    A person who owns land
        and improvements to that land may not object only to
        the valuation of that land or only to the valuation
        of improvements to that land.

      • Wis. Stat. § 74.37(4)(b): No claim or action for an
        excessive assessment may be brought or maintained
        unless the tax for which the claim is filed is
        timely paid.

      • Wis. Stat. § 74.3(4)(c): No claim                    or action for an
        excessive assessment may be brought                  or maintained if
        the assessment of the property for                   the same year is
        contested under enumerated sections                  of chapter 70.

      • The real property owner must exhaust administrative
        remedies.    See Northbrook Wis., LLC v. City of
        Niagara, 2014 WI App 22, ¶25, 352 Wis. 2d 657, 843
        N.W.2d 851 ("That Northbrook failed to avail itself
        of the opportunity to object before the Board of
        Review does not mean its right to due process was
        violated.").


                                          43
                                                            No.    2015AP1523.ssa


    ¶215 In the instant case, the legislature has given notice

to property owners that it deems an assessor's actual view of

real property material evidence and that the property owners'

failure   to   produce     this   material    evidence      will    result    in

restricting the property owners' right to contest the amount of

the assessment.      By failing to permit an interior view of the

real property, property owners            cannot at the same time take

advantage of the law's protection of the information and use the

information    to   seek   an   advantage    against   an   opposing     person

(including a government entity) that does not otherwise have

access to the information.

    ¶216 The full disclosure rule exists outside of tax law.

For example, if a plaintiff claiming damages for personal injury

refuses to disclose his or her otherwise confidential medical




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records, the plaintiff's claim will be dismissed.53      See Wis.

Stat. § 804.10, 905.04(4)(c).54

     ¶217 The challenged statutes are, in a sense, a corollary

of the well-accepted legal principle that persons who fail to

disclose material evidence that is in their possession and that

is not readily available to an opposing party may not avail

themselves of a judicial forum.

                                  VI

     ¶218 I conclude by probing the meaning of the mandate of

the lead opinion.

     ¶219 The lead opinion remands the matter to the circuit

court "for further proceedings consistent with this opinion."

Nowhere does the lead opinion discuss the further proceedings;


     53
       Lister v. Sure-Dry Basement Sys., 2008 WI App 124, 313
Wis. 2d 151, 758 N.W.2d 126 (dismissal of homeowner's action
against contractor was warranted for homeowner's failure to
supply   physician's   report);   Steinberg  v.   Jensen,   194
Wis. 2d 439, 480, 534 N.W.2d 361 (1995) (Geske, J. concurring)
("Clearly, once a patient-litigant puts his or her physical,
mental, or emotional condition into issue in a lawsuit, any
confidential physician-patient communications relating to that
issue, including those relevant to discovery under ch. 804,
Stats., are not privileged."); Khalsa v. Chose, 261 P.3d 367
(Alaska 2011) (affirming dismissal of personal injury claim for
plaintiff's failure to turn over medical records despite prior
warning and court order).
     54
       Wisconsin Stat. § 905.04(4)(c) provides:    "There is no
privilege under this section as to communications relevant to or
within the scope of discovery examination of an issue of the
physical, mental or emotional condition of a patient in any
proceedings in which the patient relies upon the condition as an
element of the patient's claim or defense, or . . . in any
proceeding in which any party relies upon the condition as an
element of the party's claim or defense."


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it is not clear what the lead opinion has in mind.                          See lead

op., ¶26 ("We express no opinion on whether the Milewskis will

be able to carry their burden of proof upon the contest of the

Property's value, but that has nothing to do with whether they

have the right to hazard the attempt.").

     ¶220 Does the circuit court determine the assessment?                          Does

the circuit court remand the matter to the Town Board of Review

to   determine         the   assessment?          May    the    Milewskis    hire     an

appraiser at their own expense to view the interior of their

home and submit that appraiser's opinion to the board of review

or circuit court?

     ¶221 The Milewskis' brief provides no help in advising what

happens should they prevail in this court.                         The brief seeks

merely     a    declaration       that     Wis.    Stat.       §§ 70.47(7)(aa)       and

74.37(4)(a)          together   violate    their    constitutional        rights     and

this court's reversal of the decision of the court of appeals.

     ¶222 The          assessor's       brief   concludes       that,    should      the

Milewskis prevail in this court, their remedy should be a remand
of the matter to the Town Board of Review to determine the

assessment.           The    assessor    proposes       this   remedy    because     the

Milewskis' challenge to the amount of the assessment was not

heard by the Board and the statutory procedures require the

matter be heard first by the Board.                     Citing Hermann v. Town of

Delavan,       215    Wis. 2d 370,      381-83,    572    N.W.2d 855     (1998),     the

assessor argues that Chapters 70 and 74 are intended to be the

exclusive means by which the property owner may contest the
amount of the assessment.

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      ¶223 Along the same lines, the Town urges that, should it

lose, "the remedy should be an opportunity to challenge the

assessment before the" board of review.                      But the Town adds that

the   Milewskis       should    not   have        the   opportunity          to    "use      any

information      that    they     have       withheld,        i.e.,     regarding            the

interior of the home."

      ¶224 Whether       the    circuit       court     or    the   Board         of    Review

determines     the     assessment,       I    agree     with     the     Town      and       the

assessors that neither the Milewskis nor any of their witnesses

should be able to use any information that they have regarding

the   interior    of    the    real   property.          Their      challenge           to   the

assessment should be limited to the assessor's calculation of

the value of the real property.                     Without this limit on the

Milewskis' challenge to the assessment of their property, the

Town's duty to assess real property uniformly and fairly may

become a nullity.

      ¶225 For    the    reasons      set     forth,      I    write     separately          in

dissent.
      ¶226 I     am    authorized     to      state     that     Justice          ANN    WALSH

BRADLEY joins this dissent.




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