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(2016 – Unpublished)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.
2

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.
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, 

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. 

FILED

JUL 7, 2017

Diane M. Fremgen

Clerk of Supreme Court

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 

2

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)
No. 2015AP1523 

3

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.
No. 2015AP1523 

4

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).
No. 2015AP1523 

5

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 
No. 2015AP1523 

6

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.
No. 2015AP1523 

7

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' 
No. 2015AP1523 

8

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 
No. 2015AP1523 

9

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)).
No. 2015AP1523 

10

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.
No. 2015AP1523 

11

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 
No. 2015AP1523 

12

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 
No. 2015AP1523 

13

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 
No. 2015AP1523 

14

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)
No. 2015AP1523 

15

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. 
No. 2015AP1523 

16

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).
No. 2015AP1523 

17

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.
No. 2015AP1523 

18

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.
No. 2015AP1523 

19

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).
No. 2015AP1523 

20

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)).
No. 2015AP1523 

21

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 revenueraising 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
No. 2015AP1523 

22

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 
No. 2015AP1523 

23

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 
No. 2015AP1523 

24

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.
No. 2015AP1523 

25

¶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 
No. 2015AP1523 

26

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 
No. 2015AP1523 

27

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 revenuerelated 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 
No. 2015AP1523 

28

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 
No. 2015AP1523 

29

"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 
No. 2015AP1523 

30

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.
No. 2015AP1523 

31

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 
No. 2015AP1523 

32

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).
No. 2015AP1523 

33

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 
No. 2015AP1523 

34

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).
No. 2015AP1523 

35

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).
No. 2015AP1523 

36

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.").
No. 2015AP1523 

37

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 
No. 2015AP1523 

38

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 
No. 2015AP1523 

39

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 
No. 2015AP1523 

40

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).
No. 2015AP1523 

41

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 grandsounding 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.
No. 2015AP1523 

42

¶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 statutorilyprescribed 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 
No. 2015AP1523 

43

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.
No. 2015AP1523 

44

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. 
No. 2015AP1523 

45

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 . . . .").
No. 2015AP1523 

46

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 
No. 2015AP1523 

47

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 
No. 2015AP1523 

48

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)
No. 2015AP1523 

49

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."
No. 2015AP1523 

50

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)
No. 2015AP1523 

51

¶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 . . . .").
No. 2015AP1523 

52

¶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 
No. 2015AP1523 

53

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.
No. 2015AP1523.pdr

1

¶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. 
No. 2015AP1523.pdr

2

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 
No. 2015AP1523.pdr

3

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 
No. 2015AP1523.pdr

4

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 
No. 2015AP1523.pdr

5

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.
No. 2015AP1523.pdr

6

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 
No. 2015AP1523.pdr

7

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 
No. 2015AP1523.pdr

8

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. 
No. 2015AP1523.pdr

9

¶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.").
No. 2015AP1523.pdr

10

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 
No. 2015AP1523.pdr

11

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. 
No. 2015AP1523.akz

1

¶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 
No. 2015AP1523.akz

2

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 unconstitutionalconditions 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).
No. 2015AP1523.akz

3

¶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. 
No. 2015AP1523.akz

4

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.
No. 2015AP1523.ssa

1

¶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 asapplied 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).
No. 2015AP1523.ssa

2

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." 
No. 2015AP1523.ssa

3

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.
No. 2015AP1523.ssa

4

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. . . .
No. 2015AP1523.ssa

5

¶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).
No. 2015AP1523.ssa

6

¶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.
No. 2015AP1523.ssa

7

¶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)
No. 2015AP1523.ssa

8

¶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).
No. 2015AP1523.ssa

9

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)
No. 2015AP1523.ssa

10

¶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).
No. 2015AP1523.ssa

11

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. 
No. 2015AP1523.ssa

12

¶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.").
No. 2015AP1523.ssa

13

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.
No. 2015AP1523.ssa

14

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 
No. 2015AP1523.ssa

15

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.
No. 2015AP1523.ssa

16

¶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.
No. 2015AP1523.ssa

17

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 
No. 2015AP1523.ssa

18

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.
No. 2015AP1523.ssa

19

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.
No. 2015AP1523.ssa

20

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)).
No. 2015AP1523.ssa

21

¶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).
No. 2015AP1523.ssa

22

"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)
No. 2015AP1523.ssa

23

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.)
No. 2015AP1523.ssa

24

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.
No. 2015AP1523.ssa

25

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)).
No. 2015AP1523.ssa

26

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. 
No. 2015AP1523.ssa

27

¶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: 
No. 2015AP1523.ssa

28

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).
No. 2015AP1523.ssa

29

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 
No. 2015AP1523.ssa

30

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.").
No. 2015AP1523.ssa

31

¶187 Without such evidence, in all likelihood, the nonconsenting 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 nonconsenting 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 nonconsenting 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 
No. 2015AP1523.ssa

32

(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.").
No. 2015AP1523.ssa

33

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 
No. 2015AP1523.ssa

34

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 nonconsenting 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)).
No. 2015AP1523.ssa

35

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.").
No. 2015AP1523.ssa

36

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."). 
No. 2015AP1523.ssa

37

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)
No. 2015AP1523.ssa

38

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).").
No. 2015AP1523.ssa

39

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).
No. 2015AP1523.ssa

40

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).
No. 2015AP1523.ssa

41

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.
No. 2015AP1523.ssa

42

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).
No. 2015AP1523.ssa

43

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.").
No. 2015AP1523.ssa

44

¶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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