2022 WI 13

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP940

COMPLETE TITLE: Brown County,

 Plaintiff-Respondent,

 v.

Brown County Taxpayers Association and Frank 

Bennett,

 Defendants-Third-Party 

 Plaintiffs-Appellants,

 v.

Peter Barca, Secretary, Wisconsin Department of 

Revenue,

 Third-Party Defendant-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: March 4, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 16, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Brown 

JUDGE: John Zakowski 

JUSTICES:

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., 

joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, 

in which ZIEGLER, C.J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendants-third-party-plaintiffs-appellants, there 

were briefs filed by Richard M. Esenberg, Anthony F. LoCoco, Lucas 

T. Vebber and Wisconsin Institute of Law & Liberty, Milwaukee. 

There was an oral argument by Anthony F. LoCoco.

For the plaintiff-respondent, there was a brief filed by 

Andrew T. Phillips, Steven L. Nelson, Douglas M. Raines, 
2

Christopher E. Avallone and von BRIESEN & ROPER, S.C., Milwaukee. 

There was oral argument by Andrew T. Phillips.

There was an amicus brief filed on behalf of the Wisconsin 

Counties Association by Joseph L. Olson and Michael Best & 

Friedrich LLP, Milwaukee.
2022 WI 13

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP940

(L.C. No. 2018CV640)

STATE OF WISCONSIN : IN SUPREME COURT

Brown County,

 Plaintiff-Respondent,

 v.

Brown County Taxpayers Association and Frank 

Bennett,

 Defendants-Third-Party 

 Plaintiffs-Appellants,

 v.

Peter Barca, Secretary, Wisconsin Department of 

Revenue,

 Third-Party Defendant-Respondent.

FILED

MAR 4, 2022

Sheila T. Reiff

Clerk of Supreme Court

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, 

in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. 

REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which 

ZIEGLER, C.J., joined.

APPEAL from an order of the Circuit Court for Brown County, 

John P. Zakowski, Judge. Affirmed. 
No. 2020AP940 

2

¶1 ANN WALSH BRADLEY, J. This case is before the court on 

certification by the court of appeals pursuant to Wis. Stat. 

§ (Rule) 809.61 (2017-18) after the circuit court granted summary 

judgment to Brown County.1 The circuit court determined that the 

County's sales and use tax ordinance was lawful. 

¶2 The court of appeals certified the following issue 

regarding how counties may utilize the proceeds of enacted sales 

and use taxes:

Does the sales and use tax Brown County enacted in 2017 

and implemented as part of its 2018 budget process 

"directly reduce the property tax levy," as required by 

Wis. Stat. § 77.70 (2015-16),[2] if the proceeds are 

designated to fund new capital projects that 

collectively would otherwise exceed the levy limits 

established by Wis. Stat. § 66.0602, but the County 

could otherwise fund the projects by borrowing?

¶3 The appellant, Brown County Taxpayers Association 

(BCTA), contends that Brown County's sales and use tax is invalid 

because it does not dollar-for-dollar directly reduce the County's 

property tax levy in violation of Wis. Stat. § 77.70. Rather, 

BCTA contends that the sales and use tax is impermissibly used to 

fund new capital projects.

¶4 In contrast, the County asserts that its sales and use 

tax complies with Wis. Stat. § 77.70. It argues, in accordance 

 

1 This case arose in the circuit court for Brown County, John 

P. Zakowski, Judge.

2 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated. This is the 

version of the statutes in effect at the time the sales and use 

tax at issue was passed. Wisconsin Stat. § 77.70 was amended in 

2017, but these amendments do not impact our analysis. 
No. 2020AP940 

3

with a longstanding Attorney General's opinion, that pursuant to 

§ 77.70 a sales and use tax may be used by a county to fund any 

project that could otherwise be paid for with property taxes.

¶5 We conclude that Brown County's sales and use tax 

ordinance is consistent with Wis. Stat. § 77.70. Section 77.70 

does not require a dollar-for-dollar offset to the property tax 

levy. Instead, it authorizes counties to impose a sales and use 

tax for the specific purpose of directly reducing the property tax 

levy, while leaving the means to accomplish that purpose up to the 

county. Because the County's ordinance does in fact directly 

reduce the property tax levy by funding projects that would 

otherwise have been paid for through additional debt obligations, 

we determine that the ordinance is permissible. 

¶6 Accordingly, we affirm the order of the circuit court.

I

¶7 On May 17, 2017, the Brown County Board of Supervisors 

enacted an ordinance relating to a temporary sales and use tax 

within the County. The ordinance provided for a 0.5 percent sales 

and use tax that would be in effect for a period of 72 months.

¶8 Within the ordinance itself is a specification regarding 

how the money collected from the sales and use tax is to be used. 

Namely, the ordinance provides that revenue from the tax "[s]hall 

not be utilized to fund any operating expenses other than lease 

payments associated with" specified capital projects. It further 

indicates that the sales and use tax revenue "[s]hall be utilized 

only to reduce the property tax levy by funding the below listed 

specific capital projects, as well as funding said specific capital 
No. 2020AP940 

4

projects' associated costs as deemed appropriate by Brown County 

administration."

¶9 The expenses for specific capital projects intended to 

be funded from the sales and use tax revenue include: (1) $15 

million for the Expo Hall project; (2) $60 million for 

infrastructure, roads, and facilities projects; (3) $20 million 

for jail and mental health projects; (4) $20 million for a library 

project; (5) $10 million for maintenance at the Resch Expo Center; 

(6) $10 million for medical examiner and public safety projects; 

(7) $1 million for a museum project; (8) $6 million for parks and 

fairgrounds; and (9) $5 million for a STEM research center project. 

¶10 Totaling $147 million, these expenses were determined by 

members of the County Board to fund "necessary projects" for the 

"long-term viability of the County." Without the sales and use 

tax, the County stated that these capital improvements would have 

been funded through new borrowing and the accompanying issuance of 

debt obligations.

¶11 Additionally, the ordinance contained a mill rate3

freeze. This provision states: "While this temporary sales and 

use tax Ordinance is in effect, the Brown County Mill Rate shall 

not exceed the 2018 Brown County Mill Rate." It further provides 

that if the mill rate does exceed the 2018 rate during the life of 

the ordinance, that the sales and use tax "shall sunset on December 

 

3 The mill 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." Milewski v. Town of Dover, 

2017 WI 79, ¶47 n.18, 377 Wis. 2d 38, 899 N.W.2d 303 (quoted source 

omitted).
No. 2020AP940 

5

31 of the year the Brown County Mill Rate exceeds the 2018 Brown 

County Mill Rate." A sunset provision is also included in the 

ordinance in the event the County issues any general obligation 

debt, excluding refunding bonds.

¶12 Brown County relied on the sales and use tax revenue in 

crafting its 2018 budget. For that year, the County's finance 

director estimated the sales and use tax proceeds to be 

$22,458,333. This amount was incorporated in the 2018 budget, 

which was adopted by the County Board and signed by the County 

Executive.

¶13 Shortly after the budget was enacted, BCTA filed suit 

against the County, arguing that the sales and use tax ordinance 

violates Wis. Stat. § 77.70. Specifically, BCTA argued that the 

ordinance does not "directly reduc[e] the property tax levy" as 

§ 77.70 mandates. It sought a declaratory judgment that the 

ordinance is invalid and an accompanying injunction against the 

ordinance's enforcement. BCTA's lawsuit was ultimately dismissed 

without prejudice due to BCTA's failure to comply with statutory 

notice of claim procedures.4

 

4 The notice of claim statute contains requirements for 

providing notice to a governmental subdivision prior to filing 

suit against that subdivision. See Wis. Stat. § 893.80. Such 

requirements allow governmental entities to investigate and 

evaluate potential claims and afford them the opportunity to 

compromise and settle a claim, thereby avoiding costly and timeconsuming litigation. Yacht Club at Sister Bay Condo. Ass'n, Inc.

v. Village of Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922 

N.W.2d 95.
No. 2020AP940 

6

¶14 After dismissal of its lawsuit, BCTA served a notice of 

claim on the County. The County disallowed the claim and 

subsequently filed this lawsuit in the circuit court, seeking a 

declaratory judgment as to the validity of the sales and use tax 

ordinance. BCTA filed a counterclaim, asserting that the ordinance 

is void as a matter of law.

¶15 Both parties moved for summary judgment. BCTA renewed 

its argument that the ordinance does not "directly reduc[e] the 

property tax levy" as Wis. Stat. § 77.70 requires and that such 

direct reduction can only be accomplished by a dollar-for-dollar 

offset. In contrast, the County asserted that the ordinance is 

valid, suggesting that § 77.70 is an enabling statute that allows 

a county to impose a sales and use tax but is silent on how sales 

and use tax proceeds are to be used.

¶16 The circuit court granted Brown County's motion for 

summary judgment and denied that of BCTA. It concluded that a 

dollar-for-dollar reduction of the property tax levy with sales 

and use tax revenue "is not the solely lawful operation required 

by the plain language of the statute." Further, it determined 

that "[i]f Wisconsin Statute section 77.70 were to require a 

dollar-for-dollar reduction of a county's property tax levy, then 

the Wisconsin Legislature would have said so in the body of the 

statute, and it would have spelled out the process for Wisconsin 

counties to follow."

¶17 BCTA moved for reconsideration, which the circuit court 

denied. Subsequently, BCTA appealed, and the court of appeals 

certified the appeal to this court.
No. 2020AP940 

7

II

¶18 We are called upon to review the circuit court's 

determination on the parties' cross-motions for summary judgment. 

This court reviews a summary judgment decision independently of 

the decisions rendered by the circuit court and court of appeals, 

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

Boardman & Clark LLP, 2019 WI 31, ¶22, 386 Wis. 2d 50, 924 

N.W.2d 799. Summary judgment is appropriate where there is no 

genuine issue as to any material fact and the moving party is 

entitled to judgment as a matter of law. Id.

¶19 In our review, we interpret several statutes. Statutory 

interpretation presents a question of law we likewise review 

independently of the determinations of the circuit court and court 

of appeals. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶16, 397 

Wis. 2d 431, 960 N.W.2d 384.

III

¶20 We begin by setting forth necessary background regarding 

the statutes at issue and county property tax levies. 

Subsequently, we present and analyze the parties' arguments 

concerning the validity of the Brown County ordinance at issue.

A

¶21 All counties in Wisconsin, including Brown County, are 

required by statute to adopt an annual budget. See Wis. Stat. 

§§ 59.60, 65.90. As part of the budgeting process, Brown County 

is required to "list all existing indebtedness and all anticipated 

revenue from all sources during the ensuing year and shall likewise 
No. 2020AP940 

8

list all proposed appropriations for each department, activity and 

reserve account during the said ensuing year." § 65.90(2).

¶22 From this data, a county calculates its property tax 

levy. To do so, it adds the operating levy (the revenue necessary 

to fund county operations) with the debt levy (the amount necessary 

to pay debt service on county borrowing). The types of 

expenditures that make up the operating levy include, among other 

things, necessary expenses for the operation of the county library 

system, the county jail, and facility management.

¶23 How the property tax levy is set is governed by Wis. 

Stat. § 66.0602, which was enacted in 2005. See 2005 Wis. Act 25, 

§ 1251c. Section 66.0602, among other provisions, includes a limit 

on the amount a governmental subdivision may increase its property 

tax levy in a given year. 

¶24 Pursuant to Wis. Stat. § 66.0602(2), and subject to 

certain exceptions, a county cannot increase its property tax levy 

in any year "by a percentage that exceeds the [county's] valuation 

factor."5 The "valuation factor" is defined as "a percentage equal 

 

5 In full, Wis. Stat. § 66.0602(2) provides:

Levy limit. Except as provided in subs. (3), (4), and 

(5), no political subdivision may increase its levy in 

any year by a percentage that exceeds the political 

subdivision's valuation factor. The base amount in any 

year, to which the limit under this section applies, 

shall be the actual levy for the immediately preceding 

year. In determining its levy in any year, a city, 

village, or town shall subtract any tax increment that 

is calculated under s. 59.57(3)(a), 60.85(1)(L), or 

66.1105(2)(i). The base amount in any year, to which 

the limit under this section applies, may not include 

any amount to which sub. (3)(e)8. applies.
No. 2020AP940 

9

to the greater of either the percentage change in the political 

subdivision's January 1 equalized value due to new construction 

less improvements removed between the previous year and the 

current" or zero percent. § 66.0602(1)(d). In other words, the 

amount a county may raise its property tax levy in a given year is 

tied to the percentage change in net new construction in the 

county. See Steven Deller & Judith I. Stallmann, Tax and 

Expenditure Limitations and Economic Growth, 90 Marq. L. Rev. 497, 

519 (2007).

¶25 As stated, there are several statutory exceptions to the 

levy limit. Relevant here is the exception set forth in Wis. Stat. 

§ 66.0602(3)(d) regarding debt service. Pursuant to 

§ 66.0602(3)(d)2.:

The limit otherwise applicable under this section does 

not apply to amounts levied by a political subdivision 

for the payment of any general obligation debt service, 

including debt service on debt issued or reissued to

fund or refund outstanding obligations of the political 

subdivision, interest on outstanding obligations of the 

political subdivision, or the payment of related 

issuance costs or redemption premiums, authorized on or 

after July 1, 2005, and secured by the full faith and 

credit of the political subdivision.

Stated differently, the levy limit applies to the operating levy, 

but not the debt levy. An additional exception to the levy limit 

applies if a political subdivision's governing body adopts a 

resolution to raise the levy beyond the statutory limit that is 

then approved by the electorate in a referendum. § 66.0602(4).

¶26 Levy limits are enforced by the Department of Revenue. 

Wis. Stat. § 66.0602(6). To aid the Department in enforcing the 
No. 2020AP940 

10

limits, it uses a Levy Limit Worksheet to ensure that a county has 

complied with the dictates of § 66.0602. Echoing the statutory 

exceptions, the Levy Limit Worksheet excludes all sums paid for 

debt service from the levy limit calculation. In an affidavit 

filed in the circuit court, the County's finance director described 

the consequence of this: "In other words, if a county borrows 

money for a capital project, the principal and interest payments 

that the county pays on the loan are excluded from the definition 

of revenues subject to the levy limit."

B

¶27 We move next to address the parties' competing 

interpretations of Wis. Stat. § 77.70, which provides in relevant 

part: "The county sales and use taxes may be imposed only for the 

purpose of directly reducing the property tax levy . . . ."

¶28 When interpreting statutes, we begin with the language 

of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning 

of the statute is plain, we need not inquire further. Id.

¶29 "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. We also interpret statutory language "in the 

context in which it is used; not in isolation but as part of a 

whole; in relation to the language of surrounding or closelyrelated statutes; and reasonably, to avoid absurd or unreasonable 

results." Id., ¶46.
No. 2020AP940 

11

¶30 BCTA contends that there is only one way to occasion a 

"direct" reduction in the property tax levy——a dollar-for-dollar 

offset of the levy corresponding to the revenue collected through 

the sales and use tax. Preventing a hypothetical increase in the 

property tax levy, BCTA argues, is not the same as "directly 

reducing" it as the statute requires.

¶31 On the other hand, Brown County contends that the 

language of Wis. Stat. § 77.70 allows for sales and use taxes to 

fund any project that could otherwise be funded with property 

taxes.6 In the County's view, the sales and use tax at issue was 

enacted to avoid raising the property tax levy to pay for the 

capital projects identified in the ordinance. Accordingly, the 

County argues that it was enacted "for the purpose of" funding 

projects that otherwise would have been funded through property 

tax revenue. It asserts that, without the sales and use tax, the 

subject capital projects would have been funded by borrowing money, 

thereby increasing the County's debt burden, which in turn would 

be passed on to taxpayers via the property tax levy.

¶32 For further support, the County points the court to an 

attorney general's opinion on the proper interpretation of Wis. 

Stat. § 77.70. Our precedent indicates that a well-reasoned 

 

6 Peter Barca, the secretary of the Department of Revenue, is 

also party to this case, but he does not take a position on the 

issue of whether Brown County's sales and use tax complies with 

state law. Instead, Secretary Barca's brief focuses only on the 

remedy in the event the tax is unlawful. Because we conclude that 

the sales and use tax is lawful, we need not address this remedy 

issue. 
No. 2020AP940 

12

attorney general's opinion is of at least some persuasive value 

when a court later addresses the meaning of the same statute. Town 

of Vernon v. Waukesha County, 102 Wis. 2d 686, 692, 307 N.W.2d 227 

(1981).

¶33 In 1998, the attorney general opined on the same issue 

we face in this case. See Opinion of Wis. Att'y Gen. to Dennis E. 

Kenealy, Ozaukee County Corp. Counsel, OAG 1-98 (May 5, 1998). 

The attorney general was asked, "in effect, how funds received 

from a county sales and use tax imposed under section 77.70, 

Stats., may be budgeted by the county board." Id. at 1. He 

concluded that "such funds may be budgeted to reduce the amount of 

the overall countywide property tax levy or to defray the cost of 

any item which can be funded by a countywide property tax." Id.

¶34 The attorney general's analysis began with a brief 

history of Wis. Stat. § 77.70: "Prior to 1985, counties had the 

authority to impose sales and use taxes, but the Wisconsin 

Department of Revenue was required to distribute all of the net 

proceeds of such taxes to towns, cities and villages within the 

county imposing the tax." Id. Presumably because they could not 

keep the revenue collected, few, if any, counties imposed a sales 

and use tax. Id. In 1985, § 77.70 was amended "to allow county 

governments to retain the net proceeds of the sales and use tax," 

as long as those proceeds are used for the purpose of directly 

reducing the property tax levy. Id. at 2 (citing 1985 Wis. Act 

41).

¶35 Next, the attorney general discussed how after this 

amendment, counties utilized one of two ways to demonstrate direct 
No. 2020AP940 

13

property tax reductions. Id. at 2. Some counties illustrated a 

property tax reduction "by showing the receipt of sales and use 

tax revenues on individual property tax bills." Id. Other 

counties "budgeted the net proceeds of the sales and use tax as a 

revenue source used to offset the cost of individual items 

contained in the county budget." Id.

¶36 In comparing these approaches, the attorney general 

noted the fundamental fungibility of money, explaining: 

The same amount of countywide property tax reduction 

occurs whether the county board chooses to budget 

revenues from net proceeds of the sales and use tax as 

a reduction in the overall countywide property tax levy 

or as an offset against a portion of the costs of 

specific items which can be funded by the countywide 

property tax.

Id. Accordingly, in the attorney general's view, "Counties may 

therefore also budget the net proceeds of the sales and use tax as 

an offset against the cost of any individual budgetary item which 

can be funded by the countywide property tax." Id. at 3.

¶37 We find the County's reading of the statute, echoed by 

the attorney general's opinion, to be the correct one. Nothing in 

Wis. Stat. § 77.70 requires the dollar-for-dollar offset that BCTA 

seeks.

¶38 On its face, Wis. Stat. § 77.70 requires that a sales 

and use tax be enacted for the "purpose of directly reducing the 

property tax levy." "Purpose" is defined as "the reason why 
No. 2020AP940 

14

something is done or used" or "the aim or intention of something."7 

Taking this common definition into account, § 77.70 broadly sets 

out what the goal or aim of a county sales and use tax must be, 

i.e. direct reduction of the property tax levy.

¶39 The statute does not, however, contain any mechanism by 

which a county must accomplish such a reduction. Its enabling 

language allows a county to impose a sales and use tax for the 

purpose of directly reducing the property tax levy, but it does 

not mandate that the county use or spend revenue generated by the 

tax on a dollar-for-dollar offset. 

¶40 As the attorney general concluded in 1998, money is 

fungible. Due to this essential fungibility, there is not one 

sole way to attain the "purpose" of reducing the property tax levy. 

Indeed, an identical reduction in the property tax levy can be 

accomplished from a dollar-for-dollar offset as can be attained by 

budgeting specific items, which otherwise would have been paid for 

from property tax revenue, to be funded with a sales and use tax. 

Either way, the purpose of directly reducing the property tax levy 

is accomplished. Thus, Wis. Stat. § 77.70 allows revenue generated 

from county sales and use tax to be used to fund any project that 

could otherwise have been paid for from property tax revenue.

 

7 Purpose, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/purpose (last visited 

Feb. 14, 2022); see also State v. Sample, 215 Wis. 2d 487, 499, 

573 N.W.2d 187 (1998) ("For purposes of statutory interpretation 

or construction, the common and approved usage of words may be 

established by consulting dictionary definitions.").
No. 2020AP940 

15

¶41 Contrary to BCTA's argument, such a conclusion does not 

read the word "directly" out of the statute. "Direct" means "to 

cause to turn, move, or point undeviatingly or to follow a straight 

course."8 It is just as straightforward for a specifically-funded 

project to cause a reduction in the property tax levy as it is for 

an offset to do the same. Stated differently, using the proceeds 

from a sales and use tax to fund a specific project that would 

otherwise have been funded with property tax revenue accomplishes 

a "direct reduction" of the property tax levy the same way a 

dollar-for-dollar offset would.

¶42 A comparison with surrounding statutes is additionally 

instructive in reaching our conclusion. See Kalal, 271 

Wis. 2d 633, ¶46. Specifically, the legislature enacted two 

nearby statutes for the purpose of funding sports stadiums and in 

those statutes it explicitly directed the stadium districts on how 

to utilize proceeds of sales and use taxes. Wisconsin Stat. 

§ 77.705, passed in 1995 to fund construction of Miller Park (now 

American Family Field),9 authorizes a "local professional baseball 

park district" to "impose a sales and a use tax . . . at a rate of 

no more than 0.1 percent of the sales price or purchase price." 

Similarly, Wis. Stat. § 77.706, enacted in 1999 for improvements 

to Lambeau Field, authorizes a "local professional football 

 

8 Direct, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/direct (last visited 

Feb. 14, 2022).

9 For further background on Wis. Stat. § 77.705, see 

Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 796-800, 

546 N.W.2d 424 (1996).
No. 2020AP940 

16

stadium district" to "impose a sales and a use tax . . . at a rate 

of 0.5 percent of the sales price or purchase price."

¶43 Unlike Wis. Stat. § 77.70, both of these statutes 

explicitly provide that the proceeds from the sales and use taxes 

are to be spent to pay down the stadium districts' debt in a 

dollar-for-dollar manner. Both Wis. Stat. §§ 77.705 and 77.706 

contain identical language indicating that any money received 

"shall be used exclusively to retire the district's debt." 

§§ 77.705, 77.706. 

¶44 In contrast, Wis. Stat. § 77.70, while setting forth 

that the "purpose" of the sales and use tax must be to "directly 

reduc[e] the property tax levy," is silent on how this is to be 

accomplished. If the legislature wanted to mandate a dollar-fordollar offset of property taxes, it could have done so in a manner 

similar to the language of Wis. Stat. §§ 77.705 and 77.706. See 

also Wis. Stat. §§ 229.685(1) and 229.825 (further restricting how 

stadium tax revenues must be spent); Southport Commons, LLC v. 

DOT, 2021 WI 52, ¶32, 397 Wis. 2d 362, 960 N.W.2d 17 ("The 

legislature is presumed to carefully and precisely choose 

statutory language to express a desired meaning." (internal 

quotation omitted)).

¶45 Our interpretation is also supported by the analysis 

employed by the attorney general in the 1998 opinion on Wis. Stat. 

§ 77.70. See OAG 1-98. The attorney general correctly based his 

opinion on the essential fungibility of money and the principle 

that the same reduction in the property tax levy occurs regardless 
No. 2020AP940 

17

of whether the proceeds are budgeted as an offset on the bills of 

taxpayers or used to fund a specific item.

¶46 Although the parties in this case argue over the proper 

weight to give an attorney general's opinion in our analysis, we 

need not and do not resolve that question because the attorney 

general's analysis was substantively correct. In other words, we 

do not rely on any presumption or deference to the opinion of the 

attorney general,10 but conclude that the analysis itself is 

persuasive and faithful to our principles of statutory 

interpretation.

¶47 We therefore determine that Wis. Stat. § 77.70 does not 

require a dollar-for-dollar reduction in the property tax levy. 

Instead, it authorizes counties to impose a sales and use tax for 

the specific purpose of directly reducing the property tax levy, 

while leaving the means to accomplish that purpose up to the 

county. 

¶48 BCTA asserts next that Wis. Stat. § 66.0602, which was 

passed subsequent to the issuance of the 1998 attorney general's 

opinion, changes this result. It focuses on the levy limit 

contained in that statute, which provides in relevant part: 

"Except as provided in subs. (3), (4), and (5), no political 

subdivision may increase its levy in any year by a percentage that 

exceeds the political subdivision's valuation factor." 

 

10 See Staples for Staples v. Glienke, 142 Wis. 2d 19, 28, 416 

N.W.2d 920 (Ct. App. 1987) (treating an attorney general's opinion 

"as presumptively correct, when the legislature later amends the 

statute but makes no changes in response to the attorney general's 

opinion").
No. 2020AP940 

18

§ 66.0602(2). Due to this levy limit, BCTA argues that the County 

could not have raised its property taxes by the amount needed to 

cover the capital expenditures intended to be funded by the sales 

and use tax.

¶49 Putting a finer point on it, BCTA argues that Wis. Stat. 

§ 66.0602(2) indicates that the County's property tax levy may be 

increased only by a percentage that does not exceed the County's 

valuation factor. By funding new projects to the tune of 

$147,000,000 over six years, BCTA asserts that the County vastly 

exceeds the statute's restriction on property tax levy increases. 

Stated otherwise, the projects could not have been paid for from 

property tax revenue because property taxes could not have been 

legally raised to such a level. For example, the County sought to 

use almost $18,000,000 collected from sales and use tax to fund 

new capital projects in 2018. However, the County's 2017 property 

tax levy was $86,661,972, and its 2018 levy limit was $87,584,261, 

a difference of just under one million dollars.11

¶50 We disagree with BCTA's argument on this point. BCTA 

focuses on Wis. Stat. § 66.0602(2) at the expense of the exception 

to subsec. (2) noted in § 66.0602(3)(d). Pursuant to subdivision 

(3)(d)2., "The limit otherwise applicable under this section does 

not apply to amounts levied by a political subdivision for the 

payment of any general obligation debt service." In other words, 

 

11 The record contains a reference to a higher number, 

$91,115,007, as the allowable 2018 debt levy limit. We use here 

the lower number provided in the 2017 Levy Limit Worksheet provided 

to the Department of Revenue, but the number chosen does not affect 

the analysis.
No. 2020AP940 

19

any debt levy is not taken into account in determining the levy 

limit under subsec. (2).

¶51 Here, the record reflects that the County would have, in 

the absence of the sales and use tax, issued general obligation 

debt to pay for the projects identified in the ordinance at issue. 

Payments on such debt service are exempt from the levy limits, 

meaning that contrary to BCTA's argument the property tax levy 

could have been raised to pay for the subject capital projects.

¶52 Having determined that Wis. Stat. § 77.70 describes what 

must be done with county sales and use tax proceeds but not how to 

accomplish that, we address next whether the Brown County sales 

and use tax ordinance at issue does in fact "directly reduc[e] the 

property tax levy." In examining the record, it is apparent that 

the answer is yes. 

¶53 The County's finance director detailed the effect of the 

sales and use tax on property taxes vis-à-vis borrowing that would 

have taken place absent the implementation of the sales and use 

tax. Specifically, the finance director averred that the subject 

projects would have otherwise been funded through the issuance of 

additional debt obligations. Such debt obligations would cause 

County property taxpayers to pay extra costs associated with the 

borrowing, including over $13 million in interest over the lifetime 

of the ordinance and $47 million in total interest, assuming a 20-

year term on the loan and thus a 20-year life of the debt service.

¶54 Absent the sales and use tax, property taxes would have 

to increase to cover the increased debt burden (and as indicated 

above, debt service is excluded from the levy limit). The 
No. 2020AP940 

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operation of this principle can be illustrated with a micro-level 

example. In this case, Brown County's finance director stated 

that if the sales and use tax remains in place, property taxes on 

the median home value in the County would decrease by $140.20 

between 2018 and 2023. If there were no sales and use tax, and 

the County instead borrowed money for the subject projects, the 

issuance of general debt obligations would cause taxes on that 

same median property to increase by $356.48 in the same time 

period. Thus, the sales and use tax saves the median Brown County 

property owner $496.68——a direct reduction.

¶55 In sum, we conclude that Brown County's sales and use 

tax ordinance is consistent with Wis. Stat. § 77.70. Section 77.70 

does not require a dollar-for-dollar offset to the property tax 

levy. Instead, it authorizes counties to impose a sales and use 

tax for the specific purpose of directly reducing the property tax 

levy, while leaving the means to accomplish that purpose up to the 

county. Because the County's ordinance does in fact directly 

reduce the property tax levy by funding projects that would 

otherwise have been paid for through additional debt obligations, 

we determine that the ordinance is permissible. 

¶56 Accordingly, we affirm the order of the circuit court.

By the Court.—The order of the circuit court is affirmed.
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¶57 REBECCA GRASSL BRADLEY, J. (dissenting). 

"When I use a word," Humpty Dumpty said, in rather a 

scornful tone, "it means just what I choose it to mean—

——neither more nor less."

"The question is," said Alice, "whether you can make 

words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be 

master——that's all."

Lewis Carroll, Through the Looking-Glass and What Alice 

Found There 124 (London, Macmillan & Co. 1899).

¶58 The Wisconsin Legislature enacted a statute providing 

"county sales and use taxes may be imposed only for the purpose of 

directly reducing the property tax levy[.]" Wis. Stat. § 77.70 

(2015–16) (emphasis added).1 Brown County enacted an ordinance 

imposing a sales and use tax for the purpose of avoiding an 

increase in the property tax levy. The majority declares the 

County's ordinance lawful by equating the avoidance of an increase 

with a reduction. The average American who faces the realities of 

daily budgeting knows the majority's math does not compute: 

Although he may prefer to drive a Maserati, he can only afford a 

Honda, and "avoiding" the loan payment for a Maserati does not 

mean he "reduces" his budget outlay by purchasing a Mercedes 

instead of a Honda. 

¶59 Defying basic logic, the majority chooses a different 

meaning for "reducing" than the plain one the legislature gave it. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.
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In order to reduce a property tax levy, it must actually go down. 

In this case, it didn't. 

¶60 The Brown County Board of Supervisors (the Board) 

decided to spend $147,000,000 on new projects. The property taxes 

paid by property owners in Brown County were insufficient to fund 

these projects, so the Board enacted an ordinance imposing a sales 

and use tax in order to make up the difference. The sales and use 

tax did not reduce the property tax levy (it actually went up). 

Nevertheless, the Board maintains the property tax levy otherwise 

would have had to increase in order to pay for all of the new 

projects. The Board decided to avoid an increase in the property 

tax levy by instead imposing a sales and use tax to directly pay 

for the projects. The majority permits this, contorting a statute 

designed for property tax relief into a blank check for 

unaffordable spending. The majority may do so as the masters of 

law-declaring in Wisconsin, but the statute does not mean what the 

majority says.

¶61 The majority roots its analysis in a fallacious 

presumption rather than the statutory text, a foundational error 

contaminating its entire opinion. The majority relies entirely on 

an affidavit of the Brown County Finance Director (the Director) 

insisting the projects "would otherwise have been" funded through 

issuing debt, which in turn would have required increasing the 

property tax levy to pay for it.2 Of course, the County cannot 

guarantee it could have accomplished the political feat of 

borrowing $147,000,000 and then increasing the property tax levy 

 

2 Majority op., ¶5.
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accordingly, which would have required the approval of either a 

super majority (three-fourths) of the Board, or the County voters 

via referendum. The majority sidesteps these political hurdles 

altogether in order to contrive a "reduction" in the property tax 

levy that never occurred. In accepting the County's baseless 

presumptions, the majority rewrites Wis. Stat. § 77.70 into a blank 

check for spending rather than the tax relief for property owners 

the legislature enacted. 

¶62 Chief Justice John Marshall once cautioned "[i]t would 

be dangerous in the extreme, to infer from extrinsic circumstances, 

that a case for which the words of an instrument expressly provide, 

shall be exempted from its operation." Sturges v. Crowninshield, 

17 U.S. (4 Wheat.) 122, 202 (1819). In this case, the majority 

exempts "directly reducing" from any operative effect, thereby 

gutting the express and unambiguous statutory requirement that a 

county sales and use tax be imposed "only for the purpose of 

directly reducing the property tax levy[.]" Our judicial duty is 

to give effect to the legislature's duly enacted statutes by 

declaring what they plainly mean. See Koschkee v. Taylor, 2019 WI 

76, ¶54, 387 Wis. 2d 552, 929 N.W.2d 600 (Rebecca Grassl Bradley, 

J., concurring)(citing Tetra Tech EC, Inc. v. Wis. Dep't of Rev., 

2018 WI 75, ¶3, 382 Wis. 2d 496, 914 N.W.2d 21 (lead 

opinion))(explaining "the judiciary's constitutionally-vested 

authority to say what the law is"). Because the majority chooses 

a different meaning for Wis. Stat. § 77.70 than the legislature 

gave it, I respectfully dissent. 
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I. BACKGROUND

¶63 In 2017, Brown County enacted a sales and use tax 

ordinance (the Ordinance) pursuant to Wis. Stat. § 77.70. 

Section 77.70 authorizes counties to impose a 0.5 percent sales 

and use tax by adopting an ordinance, provided the tax "may be 

imposed only for the purpose of directly reducing the property tax 

levy[.]" The Ordinance:

enacts a temporary 72 month, 0.5 percent Brown County 

sales and use tax, revenues from which: 1) Shall not be 

utilized to fund any operating expenses other than lease 

payments associated with the below mentioned specific 

capital projects; and 2) Shall be utilized only to reduce 

the property tax levy by funding the below listed 

specific capital projects, as well as funding said 

specific capital projects' associated costs as deemed 

appropriate by Brown County administration, in [the 

provided] amounts[.]

Introduced as part of the County's "Debt Reduction, Infrastructure 

& Property Tax Relief Plan," the Ordinance funded nine new capital 

projects, with total costs of $147 million over six years.3 

¶64 The Brown County Taxpayers Association and Frank Bennett 

(BCTA) challenged the Ordinance, claiming it violated Wis. Stat. 

§ 77.70, and the County sought a declaration that the Ordinance 

was lawful. The circuit court granted summary judgment to the 

County and denied BCTA's motion for reconsideration. After BCTA 

 

3 The capital projects and their associated costs included: 

(1) "Expo Hall Project" ($15 million); (2) "Infrastructure, Roads 

and Facilities Projects" ($60 million); (3) "Jail and Mental Health 

Projects" ($20 million); "Library Project" ($20 million); 

"Maintenance at Resch Expo Center Project" ($10 million); "Medical 

Examiner and Public Safety Projects" ($10 million); "Museum 

Project" ($1 million); "Parks and Fairgrounds Project" ($6 

million); and "Stem Research Center Project" ($5 million).
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appealed, the court of appeals certified the following issue, which 

we accepted:

Does the sales and use tax Brown County enacted in 2017 

and implemented as part of its 2018 budget process 

"directly reduce the property tax levy," as required by 

Wis. Stat. § 77.70 (2015–16), if the proceeds are 

designated to fund new capital projects that 

collectively would otherwise exceed the levy limits 

established by Wis. Stat. § 66.0602, but the County 

could otherwise fund the projects by borrowing? 

II. STANDARD OF REVIEW

¶65 "On appeal, '[w]e independently review a grant of 

summary judgment.'" Skindzelewski v. Smith, 2020 WI 57, ¶7, 392 

Wis. 2d 117, 944 N.W.2d 575 (quoting West Bend Mut. Ins. Co. v. 

Ixthus Med. Supply, Inc., 2019 WI 19, ¶9, 385 Wis. 2d 580, 923 

N.W.2d 550). "The interpretation and the application of [Wis. 

Stat. § 77.70] present questions of law that we review 

independently." Jefferson v. Dane County, 2020 WI 90, ¶13, 394 

Wis. 2d 602, 951 N.W.2d 556 (citing Dawson v. Town of Jackson, 

2011 WI 77, ¶17, 336 Wis. 2d 318, 801 N.W.2d 316). 

III. DISCUSSION

A. Plain Meaning of Wis. Stat. § 77.70

¶66 This case turns on the meaning of Wis. Stat. § 77.70. 

Accordingly, the analysis 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. Cir. Ct. for Dane Cnty., 2004 WI 

58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "We give statutory 

language 'its common, ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their 

technical or special definitional meaning.'" Milwaukee Dist. 
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Council 48 v. Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 

924 N.W.2d 153 (quoting Kalal, 271 Wis. 2d 633, ¶45). We interpret 

statutory language "in the context in which it is used; not in 

isolation but as part of a whole; in relation to the language of 

surrounding or closely-related statutes; and reasonably, to avoid 

absurd or unreasonable results." Id. (quoting Kalal, 271 

Wis. 2d 633, ¶46). "In construing or interpreting a statute the 

court is not at liberty to disregard the plain, clear words of the 

statute." Kalal, 271 Wis. 2d 633, ¶46 (quoting State v. Pratt, 36 

Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). 

¶67 The plain meaning of Wis. Stat. § 77.70 permits counties 

to impose a sales and use tax "only for the purpose of directly 

reducing the property tax levy[.]" The County acknowledges this 

statutory requirement but argues it "does not require counties to 

'use' or 'spend' sales and use tax proceeds only for that purpose." 

The majority agrees, concluding the statute does not specify the 

means by which counties must accomplish the direct reduction.4 

¶68 The majority errs by allowing "for the purpose of" to 

swallow "directly reducing" altogether.5 The statutory "purpose" 

language, however, does not alter (much less eviscerate) the 

meaning of the "directly reducing" clause. Instead, it merely 

indicates to what end the tax may be imposed: "directly reducing 

the property tax levy." 

¶69 Even if the statute gives counties some latitude to 

determine the mechanism by which to "directly reduc[e] the property 

 

4 Majority op., ¶5.

5 Id., ¶¶38–39. 
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tax levy," the County did not reduce the property tax levy at all, 

much less "directly." The adverb "directly" means "[i]n a direct 

line or manner" or "[w]ithout anyone or anything intervening."6 

It is derived from the adjective "direct," which means "[e]ffected 

or existing without intermediation or intervening agency; 

immediate."7 The County's multi-step procedure was anything but 

direct.8 Any purported reduction in the property tax levy stemming 

from avoiding unapproved debt (and any corresponding increase in 

the levy) by means of a sales and use tax does not "directly 

reduc[e] the property tax levy"; in fact, the County increased 

both the property tax levy and the sales and use tax, raising far 

more revenue than it could have generated through property taxes 

alone under normal budgeting constraints. Nevertheless, the 

majority maintains the Ordinance directly reduces the property tax 

levy "by funding projects that would otherwise have been paid for 

through additional debt obligations[.]"9 The majority insists it 

does not read "directly" out of the statute because "[i]t is just 

as straightforward for a specifically-funded project to cause a 

reduction in the property tax levy as it is for an offset to do 

 

6 Directly, The American Heritage Dictionary of the English 

Language 527 (3d ed. 1992).

7 Direct, The Oxford English Dictionary 702 (2d ed. 1989); 

see also Direct, The American Heritage Dictionary of the English 

Language 527 (3d ed. 1992) ("Having no intervening persons, 

conditions, or agencies[.]").

8 See Indirect, The American Heritage Dictionary of the 

English Language 919 (3d ed. 1992) ("Diverging from a direct 

course; roundabout. . . . [S]econdary[.]").

9 Majority op., ¶5.
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the same."10 No matter how straightforward the method, neither of 

those scenarios reflects what actually happened. The County is 

not directly (or even indirectly) defraying any property tax 

increase necessitated by its spending choices; instead, it is 

funding new projects in the first instance with sales and use tax 

revenues, which the property tax levy could not have otherwise 

sustained.

¶70 By sanctioning the County's misuse of the statute, the 

majority's interpretation renders the term, "directly," 

meaningless. See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language 

is read where possible to give reasonable effect to every word, in 

order to avoid surplusage."); Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 174 (2012) ("These 

words cannot be meaningless, else they would not have been used." 

(quoting United States v. Butler, 297 U.S. 1, 65 (1936)). In order 

for the property tax levy to be "directly" reduced, the reduction 

must occur by the shortest path and "[w]ithout anyone or anything 

intervening[.]"11 In order to lawfully use the sales and use tax 

revenue to fund new spending, the County must first authorize and 

issue general obligation bonds through statutory procedures under 

Wis. Stat. ch. 67, then increase the debt levy, necessitating an 

increase in the property tax levy in the corresponding amount to 

pay for the debt service. See Wis. Stat. §§ 66.0602(3), 67.045, 

 

10 Id., ¶41.

11 See Directly, The American Heritage Dictionary of the 

English Language 527 (3d ed. 1992).
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67.05. The sales and use tax revenue could then be applied to 

directly reduce the property tax levy.

¶71 The County's purported "reduction" is not in fact any 

reduction at all. The County's ability to authorize and issue 

general obligation bonds is dependent upon the satisfaction of 

several statutory prerequisites, in addition to following its own 

debt issuance policies.12 Because the Ordinance funds new projects 

that have not been approved for bonding——and therefore have not 

produced any actual increase in the debt levy or property tax levy—

—there is nothing to reduce.13 Calculating savings based on a 

theoretical increase in debt and property taxes that would have 

resulted if an alternative funding mechanism had been approved 

produces nothing but a chimera of a "reduc[tion]" and certainly 

not a direct one.

¶72 The affidavit of the Director upon which the majority 

relies, claiming the projects would have otherwise been funded by 

debt, assumes the County would have satisfied the statutory 

prerequisites to authorize and issue debt; however, until the debt 

is actually issued and the property tax levy increased, any 

purported "reduction" is purely conjectural. "Affidavits in 

support of a motion for summary judgment must contain evidentiary 

facts, of which the affiant has personal knowledge." Hopper v. 

 

12 For example, the County's debt service policy limits 

bonding to projects that cost at least $250,000 or have a project 

life of at least five years, and spells out additional requirements 

depending on the type and length of the project. 

13 See Reduce, The Oxford English Dictionary 433 (2d ed. 1989) 

("To lower, diminish, lessen.").
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City of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139 (1977) (citing 

Kroske v. Anaconda Am. Brass Co., 70 Wis. 2d 632, 641, 235 

N.W.2d 283 (1975)); see also Wis. Stat. § 802.08(3)(2019–20). 

"Portions of affidavits which are made by persons who do not have 

personal knowledge or which contain allegations of ultimate facts, 

conclusions of law or anything other than evidentiary facts do not 

meet the statutory requirements and will be disregarded." Hopper, 

79 Wis. 2d at 130 (citing Kroske, 70 Wis. 2d at 641; Walter 

Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 652, 158 N.W.2d 387 

(1968)). The Director's speculation regarding what might have 

happened but for the imposition of the sales and use tax is "not 

proper in support of a motion for summary judgment and is 

ineffectual to establish evidentiary facts." Id. at 131. 

¶73 The Director's assumption that the County would have 

pursued bonding for these projects falls far short of fact; because 

he is not the sole decisionmaker nor can he foresee the future, he 

could not possibly know whether the statutory requirements would 

have been met. The County Board must issue debt according to the 

terms of Wis. Stat. ch. 67 as well as its own debt issuance 

policies. For example, Wis. Stat. § 67.045 prohibits the governing 

body of a county from issuing bonds unless the county holds a 

referendum by which its citizens approve the debt issuance or the 

governing body adopts a resolution to issue the debt by a vote of 

three-fourths of the members. See Wis. Stat. §§ 67.05(3),14

67.045(1)(a), (f). The Director could not possibly possess any 

 

14 Wisconsin Stat. § 67.05 governs the procedures for issuing 

bonds, including requirements for adopting initial resolutions or 

holding a referendum. See, e.g., Wis. Stat. § 67.05(1)-(3).
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personal knowledge that the debt would have issued, given the 

political hurdles to be surmounted.15

¶74 The majority contends the surrounding statutes support 

its interpretation.16 They don't. While context is important, the 

statutes cited do not alter the plain meaning of Wis. Stat. 

§ 77.70; if anything, they mirror its mandatory language. See

Kalal, 271 Wis. 2d 633, ¶46. Wisconsin Stat. §§ 77.705 and 77.706 

were enacted to provide an additional funding source for former 

Miller Park and Lambeau Field, respectively. Section 77.705 

authorizes a "local professional baseball park district" to impose 

a sales and use tax, requiring that any moneys transferred from or 

to the relevant appropriation accounts "shall be used exclusively 

to retire the district's debt." Wis. Stat. § 77.705. 

Section 77.706 authorizes a "local professional football stadium 

district" to impose a sales tax and use tax, similarly requiring 

that any moneys transferred from or to the relevant appropriation 

 

15 For example, ¶5 of the affidavit states the Director was 

"made aware that the [Board] discussed options for borrowing and 

funding in relation to county infrastructure and capital needs in 

early 2017"; ¶¶11–16 address steps in the County's budget process; 

and ¶¶23–38 speak to the County's financial status after the 

adoption of the sales and use tax. None of these paragraphs 

support the Director's assertion that the debt would actually have 

been approved. Further, ¶¶29–30 and 33, addressing the impact on 

taxpayers if the County "was forced to borrow"——including the extra 

costs of borrowing and the increase in taxes——cut against the 

assertion that the County would have successfully pursued 

borrowing. In light of these considerable expenses, the County 

may have chosen to fund only some or ultimately none of the 

projects to mitigate these costs. 

16 Majority op., ¶¶42–43.
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accounts "shall be used exclusively to retire the district's debt." 

Wis. Stat. § 77.706. 

¶75 The majority manufactures a distinction between the 

language of these stadium statutes and Wis. Stat. § 77.70, 

concluding the legislature is "silent" on how the direct reduction 

of the property tax levy should be accomplished, and that it could 

have mandated——as it did in Wis. Stat. §§ 77.705 and 77.706——how 

to do so.17 This is a distinction without a difference. While 

they use different terms because they apply to different funding 

sources, §§ 77.705 and 77.706 are structurally equivalent to 

§ 77.70. Just as §§ 77.705 and 77.706 require a sales and use tax 

be "used exclusively to retire the district's debt," § 77.70 

requires that a sales and use tax under that section be imposed 

"only for the purpose of directly reducing the property tax 

levy[.]" Whatever "contrast" the majority sees in these 

statutes,18 each mandates a particular end for which the tax is to 

be used: to retire the districts' debt and to directly reduce a 

county's property tax levy. The Ordinance neither operates 

directly nor actually reduces the property tax levy——regardless of 

the breadth the majority attaches to "purpose."19 

B. The 1998 Attorney General's Opinion and the Impact of Wis. 

Stat. § 66.0602

¶76 To the extent the 1998 attorney general's opinion 

suggests a county sales and use tax may fund projects not already 

 

17 Id., ¶44.

18 Id.

19 Id., ¶38.
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funded by the property tax levy, the opinion——and the majority's 

reliance on it——is wrong. The opinion responded to a simple 

allocation question regarding how funds received from a county 

sales and use tax may be budgeted by a county board. See Opinion 

of Wis. Att'y Gen. to Dennis E. Kenealy, Ozaukee County Corp. 

Counsel, OAG 1-98 (May 5, 1998). The attorney general answered, 

"such funds may be budgeted to reduce the amount of the overall 

countywide property tax levy or to defray the cost of any item 

which can be funded by a countywide property tax." Id. at 1.

¶77 The attorney general's opinion compared two budgeting 

methods used by counties in determining property tax levy 

reductions: The first involved subtracting the net proceeds of 

the sales and use tax directly from the total property tax——both 

shown as single line revenue items in the budget——to determine the 

net property tax that must be levied.20 Id. at 2. The second 

 

20 The attorney general referenced the practice of some 

counties to reflect sales and use tax revenues on individual 

property tax bills only as a passing remark, not as one of the two 

identified methods counties used to demonstrate direct property 

tax reductions, as the majority claims. See majority op., ¶¶35, 

45; Opinion of Wis. Att'y Gen. to Dennis E. Kenealy, Ozaukee County 

Corp. Counsel, OAG 1-98 (May 5, 1998). It is not clear Wis. Stat. 

§ 77.70 even authorizes this method; the attorney general 

clarified that counties cannot "implement a direct system of tax 

credits to individual property owners through distribution of 

property tax bills[.]" OAG 1-98 at 2. Instead, Section 77.70 

requires that the "property tax levy" be reduced. 
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involved offsetting the cost of individual property-tax-funded 

budget items by the net proceeds of the sales and use tax. Id. 

With regard to offsetting the cost of new as opposed to existing 

projects, the attorney general opined:

It would be unreasonable to construe the statutory 

restriction so that counties which had already started 

certain projects could use sales and use tax revenues to 

complete them while other counties contemplating the 

initiation of similar projects could not use sales and 

use tax revenues to fund them at all. . . . Counties 

may therefore also budget the net proceeds of the sales 

and use tax as an offset against the cost of any 

individual budgetary item which can be funded by the 

countywide property tax.

Id. at 2–3. The majority claims the attorney general's opinion

relied on the "essential fungibility of money and the principle 

that the same reduction in the property tax levy occurs regardless 

of whether the proceeds are budgeted as an offset on the bills of 

taxpayers or used to fund a specific item."21 The majority errs 

by assuming away the statutory and democratic prerequisites for 

issuing debt. It is unknowable whether the County's voters or a 

 

Legislative history confirms this conclusion. 1985 Senate 

Bill 376, later enacted as 1985 Wisconsin Act 41, included an early 

amendment limiting the sales tax revenue "only for the purpose of 

property tax relief." Drafting File, 1985 Wis. Act 41, Legislative 

Reference Bureau, Madison, Wis. The bill was later amended to 

include the pertinent language as it currently exists, 

substituting "property tax relief" with "directly reducing the 

property tax levy." Id. Senator Feingold explained his amendment 

requiring the tax provide "property tax relief" "should ensure 

that the revenue [the sales tax] raises goes directly toward 

lowering property tax bills." See Measure links property tax 

relief to county sales tax, Waunakee Tribune, Oct. 17, 1985 at 7.

The change in language to directly reduce the levy indicates 

§ 77.70 does not encompass the tax-bill-offset method.

21 Majority op., ¶45.
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super majority of the County Board would have approved bonding for 

the County's proposed new projects. Because no debt was issued to 

fund the projects, no corresponding property tax increase actually 

occurred. Consequently, there was nothing to reduce. 

¶78 Even if the attorney general's analysis was correct at 

the time, it no longer accurately reflects the state of property 

tax "fungibility."22 The attorney general released his opinion in 

1998, before the legislature enacted the levy limits in 2005. See

2005 Wis. Act 25, § 1251c. This statute fundamentally altered the 

fungibility principle on which the opinion relied because it 

limited the extent to which counties can increase the property tax 

levy at will. See Wis. Stat. § 66.0602(2). 

¶79 The majority does not dispute that the County could not 

raise the property tax levy under Wis. Stat. § 66.0602(2) to pay 

for all of its new projects except under § 66.0602(3)(d)2. That 

statutory exception allows the County to increase the property tax 

levy in an amount its new projects would require only by issuing 

general obligation debt.23 Quite conveniently, the County asserts 

and the majority agrees it would have issued general obligation 

 

22 The attorney general's opinion does not come close to 

contemplating the "careful budgeting process" that the County 

asserts will be upended by concluding the Ordinance is unlawful. 

The County emphasized that the circuit court found its budget 

decisions "were made by 'intelligent and talented people' who 

conducted 'ample research and put considerable thought and effort 

into determining how the sales and use tax revenue would reduce 

the property tax levy' and fund new projects." This might be true, 

but it is hardly the type of situation the attorney general's 

opinion considered in distinguishing an indirect reduction from a 

direct reduction.

23 See majority op., ¶¶50–51.
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debt to pay for the projects. No one, however, submits any proof 

of the political will to do so. 

¶80 The County's bare assertion flies in the face of Wis. 

Stat. § 66.0602(2), which prohibits the County from increasing the

property tax levy to pay for the projects. Under that statute, 

the County could not have increased its 2018 property tax levy by 

more than approximately $1 million dollars, but it sought to spend

approximately $18 million in sales and use tax revenues that year 

to pay for its projects. Undeterred, the majority dismisses this 

concern by citing the exception under § 66.0602(3)(d)2. for debt 

service payments.24 That exception only exacerbates the majority's 

analytical problems. Instead of providing the County the loophole 

it seeks, § 66.0602(3)(d)2. introduces an intervening step in the 

analysis of what "can be funded by a countywide property tax." 

See OAG 1-98 at 4. 

¶81 Applying the attorney general's analysis under the 

current statutory scheme, the project funding generated by the 

Ordinance constitutes at best only "indirect . . . property tax 

relief" because § 66.0602(2) prevents the County from directly 

increasing the property tax levy to pay for the projects. See OAG 

1-98 at 3 ("The term 'directly' has meaning in those instances 

where budgetary items cannot be funded through a countywide 

 

24 The attorney general's opinion in no way endorsed or even 

contemplated the use of debt to evade property tax restrictions; 

rather, that opinion addressed whether new spending funded by sales 

and use tax revenue could have been "funded by a countywide 

property tax," not whether a county could have obtained funds 

through debt financing or some other funding option. See OAG 1-

98 at 3.
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property tax."). The County's plan requires an "intermediate step" 

to reduce the property tax levy: issuing debt. See id. (defining 

"directly" as "without any intermediate step"). Because issuing 

debt requires the approval of County voters or a super majority of 

the County Board, that intermediate step cannot be taken as a 

foregone conclusion. While money may be fungible, political will 

is not.

¶82 The County cannot sidestep Wis. Stat. § 66.0602(2) by

simply asserting it would have issued the debt. At a minimum, 

§ 66.0602(2) and (3) demonstrate the indirectness of the County's 

purported reduction in the property tax levy. Issuing debt for 

the entire suite of projects may not have been politically or 

practically feasible under the levy limit statute. The majority 

and the County conclude that because the County legally could have

raised the levy under § 66.0602(3)(d)2., it would have actually 

done so. Setting aside the statutory hurdles, the County itself 

warned of "adverse consequences" from taking on "enormous debt," 

including "significant risk" of a decreased credit rating, 

additional interest payments, and "passing the interest costs on 

to county property-taxpayers for many years[.]" It cannot have it 

both ways. Increasing the property tax levy beyond the levy limit 

requires multiple steps, including issuing debt only after 

obtaining the political approvals mandated under Wis. Stat. 

§§ 67.045 and 67.05, among other constraints. Merely assuming the 

County could have satisfied these prerequisites circumvents the 

express language of Wis. Stat. § 77.70. 
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¶83 As a final note regarding the attorney general's 

opinion, the County's argument that the legislature has acquiesced 

to the attorney general's interpretation of Wis. Stat. § 77.70 

because it has not amended the statute in response to the opinion 

should be rejected.25 Although the majority declines to address 

the issue because it erroneously endorses the opinion, this court 

has explained that legislative acquiescence is a flimsy basis on 

which to support a prior construction of a statute because 

"[n]umerous variables, unrelated to conscious endorsement of a 

statutory interpretation, may explain or cause legislative 

inaction." Wenke v. Gehl Co., 2004 WI 103, ¶33, 274 Wis. 2d 220, 

682 N.W.2d 405; see also Johnson v. Transp. Agency, 480 U.S. 616, 

672 (1987) (Scalia, J., dissenting) ("[I]t [is] impossible to 

assert with any degree of assurance that congressional failure to 

act represents (1) approval of the status quo, as opposed to (2) 

inability to agree upon how to alter the status quo, (3) 

unawareness of the status quo, (4) indifference to the status quo,

or even (5) political cowardice."). "Our judicial duty is to say 

 

25 The legislature did amend Wis. Stat. § 77.70 in 2017 to 

create an exception to the requirement that the sales and use tax 

be imposed "only for the purpose of directly reducing the property 

tax levy" for a county that has an electronics and information 

technology manufacturing zone under Wis. Stat. § 66.0621(3m). See

2017 Wis. Act 58, § 34e. Section 66.0621(3m) provides that a 

county "may issue bonds under this section whose principal and 

interest are paid only through sales and use tax revenues imposed 

by the county under s. 77.70." See 2017 Wis. Act 58, § 18k. The 

legislature's specific carve-out for § 66.0621(3m) within § 77.70 

reinforces the conclusion that the relationship between debt 

service payments under § 66.0602(3)(d)2. and sales and use taxes 

under § 77.70 is indirect; the majority's interpretation renders 

this amendment superfluous.
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what the law is, not to surmise meaning from legislative 

quiescence. Legislative inaction cannot support an interpretation 

of the statute that is contrary to the plain meaning of the 

language used in the statute." Winebow, Inc. v. Capitol-Husting

Co., 2018 WI 60, ¶53, 381 Wis. 2d 732, 914 N.W.2d 631 (Rebecca 

Grassl Bradley, J., dissenting).

¶84 The attorney general's opinion does not account for the 

current statutory constraints on a county's ability to increase 

the property tax levy. Its reasoning rests on the attorney 

general's personal assessment of the reasonableness of the 

statute, prompting him to choose a construction that avoids the 

actual and unambiguous meaning of the language, which the attorney 

general deemed "unreasonable." For that reason alone the majority 

should have rejected the opinion. The absurd or unreasonable 

results canon of statutory construction applies only "when an 

interpretation would render the relevant statute contextually 

inconsistent or would be contrary to the clearly stated purpose of 

the statute." State v. Grunke, 2008 WI 82, ¶31, 311 Wis. 2d 439, 

752 N.W.2d 769; see also Scalia & Garner, supra at 237 ("[E]rrorcorrection for absurdity can be a slippery slope. It can lead to 

judicial revision of public and private texts to make them (in the 

judges' view) more reasonable."). It is a misuse of the canon to 

invoke it as a tool for discarding the plain meaning of an 

unambiguous statute in favor of an interpretation the attorney 

general (or a court) prefers. "The oddity or anomaly of certain 

consequences may be a perfectly valid reason for choosing one 

textually permissible interpretation over another, but it is no 
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basis for disregarding or changing the text." See Scalia & Garner, 

supra at 237. The clearly stated purpose of Wis. Stat. § 77.70 is 

"directly reducing the property tax levy[.]" The County admits it 

instead enacted the Ordinance "for the purpose of funding capital 

projects[.]" Regardless of whether the majority feels the 

legislature's chosen restriction on sales and use tax revenue is 

"unreasonable," the County was compelled to abide by it but it 

failed to do so.

C. County Budgeting 

¶85 Brown County's budgeting procedures show the Ordinance 

is unlawful. The County defines "capital project" as "an 

investment in a capital improvement that has a project cost of at 

least $250,000, is generally non-recurring, and has a service life 

of five years or more." These projects "are proposed and adopted 

as part of the annual County budget process." Further, "[f]inal 

approval of bonding projects [is] subject to: 1) inclusion in the 

Project Authorization Resolution and 2) financing being secured if 

funded by bonds or notes. Both steps in this process are subject 

to final approval by the County Board."

¶86 The County's 2018 budget listed the nine capital 

projects funded by the Ordinance——subdivided into seventeen 

"Projects"——under the "Proposed" category, defined as "Projects 

that are being submitted to the County Board for its consideration 

and action." In contrast, projects categorized as "Bonded" are 

those "that have been through the Project Resolution Approval 

process and for which financing has been secured and approved." 

Consequently, the capital projects at issue had not been approved 
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for financing——they represented new spending projects not already 

funded by the property tax levy.26

¶87 In his affidavit, the Director stated:

I am familiar with Brown County's May 17, 2017 Ordinance 

enacting a Sales and Use Tax for the purpose of funding 

capital projects which it is my understanding and belief 

would otherwise have been funded through the issuance of 

additional debt obligations.

It is my belief that revenues to Brown County from the 

Sales and Use Tax will benefit Brown County taxpayers by 

lowering the property tax rate, reducing interest 

expenses on financing projects, and having non-County 

residents assist with financing through purchases 

subject to the sales and use tax.

The Director admitted the tax was enacted "for the purpose of 

funding capital projects which . . . would otherwise have been 

funded through the issuance of additional debt obligations"——not 

for the purpose of directly reducing the property tax levy as Wis. 

 

26 The County argues BCTA "would rather have counties plan 

capital projects, borrow millions of dollars to pay for those 

projects, take on the costly interest expense associated with the 

debt, increase property tax levies to pay for the debt, absorb all 

of the professional costs and fees associated with debt issuance, 

and then impose a sales and use tax to decrease the debt burden." 

If the County cannot pay for its projects by increasing its 

property tax levy under Wis. Stat. § 66.0602(2), then this is what 

Wis. Stat. § 77.70 requires to directly reduce the property tax 

levy using sales and use tax revenue. Alternatively, the County 

could keep its spending within the limits of its property tax 

revenue and use the sales and use tax revenue to reduce the 

property tax levy as the statute says. While skirting the 

statutory requirements may enable the County to circumvent the 

political hurdles associated with saddling its citizens with 

costly debt, the County's complaints about the practicalities of 

statutory compliance are properly addressed to the policymakers in 

the legislature rather than this court. See United States v. 

Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting) ("For the 

removal of unwise laws from the statute books appeal lies, not to 

the courts, but to the ballot and to the processes of democratic 

government."). 
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Stat. § 77.70 requires. Tellingly, in the 2018 Brown County 

Executive Budget Message, the County Executive extolled the 

benefits of the new sales and use tax without any mention of 

reducing the property tax levy: 

Through the use of a temporary 72-month sales tax, we 

will cut the county's debt in half, eliminate bonding 

for six years, avoid mountains of interest by paying 

cash for projects, and make over $147 million in needed 

investments to county infrastructure and facilities 

which have been put off for far too long.

¶88 Unless the property tax levy had already accounted for 

these projects——for example, if the debt had been issued and the 

property tax levy increased——the purpose of the Ordinance is not 

to reduce the levy at all. Rather, the purpose is to avoid 

increasing the levy through additional debt obligations. While 

this purpose might be fiscally sound and politically attractive, 

it does not satisfy Wis. Stat. § 77.70. Avoiding an increase is 

not equivalent to a direct reduction. While the Director could 

know the County would have sought to fund the projects through 

issuing debt, it is simply not the case that he——or anyone——could 

know the debt would actually have been approved and issued. 

¶89 The Director also claimed the Ordinance "will result in 

direct property tax savings every year from 2019 through 2023." 

Any "savings" are illusory. The Director explained:

If the Sales Tax remains in place, taxes on a property 

assessed at $163,200 (the median value of a home in Brown 

County) would decrease by $140.20 between 2018 and 2023. 

However, if there was no Sales Tax, the issuance of 

general obligation debt would result in taxes on that 

same median property increasing by $356.48 between 2018 

and 2023.
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The difference is a savings of $496.68 for the typical 

Brown County homeowner of a median property as a direct 

result of the sales and use tax.

While this calculation is useful for the County to compare the 

fiscal impact of alternative funding mechanisms, it does not show 

an actual reduction in the property tax levy. The County 

calculates the property tax savings based on a comparison between 

two alternatives——imposing the sales and use tax and increasing 

the debt levy. Because bonding represented an alternative method 

rather than the status quo, its avoidance does not produce a 

reduction in the tax levy under Wis. Stat. § 77.70. The proper 

baseline for determining whether the sales and use tax "directly 

reduc[es] the property tax levy" is the existing property tax levy. 

¶90 The County is using its sales and use tax to "pay[] cash" 

for new capital projects.27 Wisconsin Stat. § 77.70, however, 

allows the sales and use tax to be used only to reduce the property 

tax levy. By paying for the projects up front with sales and use 

tax revenues instead of bonding, the County decided the costs of 

those projects should be borne by sales and use taxpayers instead 

of property taxpayers. This was not the County's decision to make. 

Wisconsin Stat. § 77.70 limits the purpose of the sales and use 

tax to "directly reducing the property tax levy"; the legislature 

accordingly reserved for itself the policy choice of allocating 

tax burdens among different payors. For example, the County 

 

27 At a County Executive Committee meeting, the County 

Executive stated the Ordinance "would contain the specific numbers 

for each of the buckets, but not the specific projects because in 

the end, the projects are approved through the budget process. 

What is changing is that the County would be paying cash for 

projects that we know are coming forward instead of increasing 

debt and increasing the property tax levy to pay for the projects." 
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Executive "oppose[d] county property taxpayer funding of the new 

arena." The County Executive's desire to prematurely offload new 

project funding from property taxpayers to sales and use taxpayers 

is inconsistent with the statutory limitation on the imposition of 

sales and use taxes: to directly reduce the property tax levy. 

Under the statutory scheme, property taxpayers must assume the 

initial burden of debt to fund new projects, provided the County 

Board musters the political capital to pursue issuing debt. Only 

then may the increased property tax levy be reduced by the sales 

and use tax. By skipping this step, the County surely avoids the 

burden of obtaining its citizens' consent to bearing the expense 

of the Board's preferred projects, but it violates the law in doing 

so, not to mention hiding from property taxpayers the future fiscal 

impact of the Board's spending.28

¶91 The sales and use tax and the property tax impact 

different groups in different ways, and it is the prerogative of 

the legislature to determine how those burdens should fall. For 

example, "[t]he sales tax has generally been thought to be 

inherently regressive because the proportion of an individual's or 

family's income devoted to consumption declines as income 

increases. Persons at lower income levels, therefore, tend to pay 

a larger share of their income in sales tax." See Sydney Emmerich, 

Sales and Use Tax, Legislative Fiscal Bureau, Informational Paper 

 

28 For example, one new sales and use tax-funded project in 

the proposed 2019 Executive Budget——the "Community Treatment 

Center Crisis Assessment Center"——was estimated to result in a 

"significant" increase in salary and fringe benefits, 

necessitating a levy of $1,442,024. 
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#5, 3 (Jan. 2021); see also Measure links property tax relief to 

county sales tax, Waunakee Tribune, Oct. 17, 1985 at 7 (quoting 

Senator Feingold as stating, "The sales tax involves some 

fundamental inequities which make it basically an unattractive 

tax"). 

¶92 Historically, Wisconsin has relied heavily on property 

taxes. See Noga Ardon, Property Tax Level in Wisconsin, 

Legislative Fiscal Bureau, Informational Paper #15, 3 (Jan. 2021)

("Wisconsin local governments' heavy reliance on the property tax 

has contributed to the state's above-average property tax 

levels."). At the time the legislature enacted 1985 Wisconsin Act 

41, it was particularly concerned with high property tax levels. 

See, e.g., Measure links property tax relief to county sales tax, 

at 7 (quoting Senator Feingold as stating, "The property tax is 

still the biggest tax problem facing this state"). "[R]esidential 

and commercial property have borne increasing shares of the tax 

burden, while decreasing shares have been borne by manufacturing 

and other property." See Property Tax Level in Wisconsin, at 4. 

¶93 Against the backdrop of these documented concerns, Wis. 

Stat. § 77.70 reflects the legislature's deliberate policy choice 

to restrict counties to imposing sales and use taxes "only for the 

purpose of directly reducing the property tax levy[.]" The 

County's unlawful imposition of the sales and use tax to avoid 

issuing debt for financing its increased spending shifts tax 

burdens in a manner not contemplated by § 77.70. The statute 

promotes fiscal restraint; it does not provide a blank check for 

the County to pursue otherwise unfunded projects. In sanctioning 
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the County's budgeting method, the majority upends the policy 

choices the legislature enacted in § 77.70. 

D. CONCLUSION

¶94 Wisconsin Stat. § 77.70 expressly provides that "county 

sales and use taxes may be imposed only for the purpose of directly 

reducing the property tax levy[.]" The Ordinance instead avoids 

a levy increase associated with issuing debt. While the County 

attempts to obfuscate the issue by pointing to its "careful 

budgeting process" and the "adverse consequences" of concluding 

the Ordinance is unlawful, the legal conclusion is simple: The 

County could not increase its property tax levy under Wis. Stat. 

§ 66.0602(2) to pay for its proposed new projects, so it would 

have to rely on the exception to pay debt service under 

§ 66.0602(3)(d)2. Because the County never sought the requisite 

approval for debt issuance under Wis. Stat. ch. 67, the debt levy 

has not been increased. The sales and use tax instead paid 

directly for the new projects rather than being used to directly 

reduce the property tax levy, which actually increased after the 

County enacted the Ordinance. Instead of reducing the property 

tax levy, the County misused § 77.70 to avoid an increase in 

property taxes to pay for the County's preferred projects. Because 

the County's sales and use tax avoided an increase in the property 

tax levy rather than reducing it, the Ordinance violates § 77.70 

and should be void. The majority instead upholds it, in derogation 

of § 77.70; therefore, I respectfully dissent.

¶95 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER joins this dissent.
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