2020 WI App 56

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2018AP1133

Complete Title of Case: 

DARRELL KLEIN, RICHARD MITCHELL, LINDA MITCHELL AND

SCOTT BRETTING,

 PLAINTIFFS-RESPONDENTS,

 V.

THE WISCONSIN DEPARTMENT OF REVENUE AND 

RICHARD CHANDLER, SECRETARY,

 DEFENDANTS-APPELLANTS.

Opinion Filed: August 11, 2020

Submitted on Briefs: November 5, 2019

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendants-appellants, the cause was submitted on the 

briefs of Joshua L. Kaul, attorney general, and Colin T. Roth, assistant 

attorney general. 

Respondent

ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the 

brief of Frank W. Kowalkowski of von Briesen & Roper, S.C., 
2

Green Bay, and Linda I. Coleman of Spears, Carlson & Coleman, SC, 

Washburn. 
2020 WI App 56

COURT OF APPEALS

DECISION

DATED AND FILED

August 11, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2018AP1133 Cir. Ct. No. 2016CV83

STATE OF WISCONSIN IN COURT OF APPEALS

DARRELL KLEIN, RICHARD MITCHELL, LINDA MITCHELL AND 

SCOTT BRETTING,

 PLAINTIFFS-RESPONDENTS,

 V.

THE WISCONSIN DEPARTMENT OF REVENUE AND RICHARD CHANDLER,

SECRETARY,

 DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Ashland County: 

JOHN M. YACKEL, Judge. Reversed and cause remanded with directions. 

Before Stark, P.J., Hruz and Seidl, JJ. 

¶1 HRUZ, J. In response to a federal court decision, the Town of 

Sanborn (the “Town”) decided in 2007 to remove from its property tax rolls all land 

belonging to the Bad River Band of Lake Superior Tribe of Chippewa Indians (the 
No. 2018AP1133

2

“Bad River Band”) and its members. The Wisconsin Department of Revenue (the 

“Department”) subsequently issued guidance encouraging municipalities to review, 

on a property-by-property basis, whether Native American property qualified under 

federal law for property tax exemption. Nonetheless, the Town continued its 

blanket exemption for all Bad River Band tribal and member property until it was 

ordered to return those properties to the tax rolls as part of another lawsuit. 

¶2 Darrell Klein and the other taxpayer plaintiffs (collectively, the 

“Taxpayers”) commenced this action against the Department after the Sanborn 

Town Board disallowed their claims regarding excessive and unlawful taxation. 

The Taxpayers alleged the Department had failed to act sufficiently to stop the 

Town’s unlawful taxation policy. As a result, they alleged the Department has 

allowed the non-uniform taxation of property. The Taxpayers asserted they were 

entitled to recover an alleged $1.5 million in excessive taxes from the Department 

on behalf of themselves and other taxpayers in Ashland County. They also sought 

damages for the alleged diminution of their property values, a town-wide 

reassessment, and a writ of mandamus compelling the Department to comply with 

its statutory obligations under WIS. STAT. ch. 73 (2017-18).1 The Taxpayers further 

sought attorney fees and declaratory relief.

¶3 The circuit court granted the Taxpayers’ summary judgment motion, 

and we agree with the Department that it erred by doing so. Instead, the Department 

was entitled to summary judgment because sovereign immunity bars the Taxpayers’ 

claims against it for damages and attorney fees, as a matter of law. When the action 

is one for the recovery of money from the State, as here, the State—including one 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1133

3

of its agencies like the Department—may not be sued without its consent (i.e., an 

express directive by the legislature). The application of sovereign immunity here 

required the circuit court to dismiss all of the Taxpayers’ non-mandamus claims, 

including their request for attorney fees. Moreover, given the circumstances in this 

case, any claim for the recovery of unlawful taxes lies against the municipality that 

collected them, not with the Department. 

¶4 As for the Taxpayers’ mandamus claim, we conclude they have failed 

to demonstrate that the Department had a “positive and plain duty” that it failed to 

perform. Rather, the duties the Taxpayers point to are investigative and 

prosecutorial functions that have long been treated as discretionary. Accordingly, 

we conclude that summary judgment was appropriate in the Department’s favor on 

all of the Taxpayers’ claims. We reverse and remand with directions for the circuit 

court to dismiss the claims against the Department.

BACKGROUND

¶5 Although this appeal presents purely questions of law, we set forth 

some background information for purposes of framing the legal issues presented. 

In 2006, a federal appellate court held that property allotted to a Chippewa tribe 

pursuant to an 1854 treaty with the United States could not be taxed by the State of 

Michigan pursuant to the terms of that treaty. See Keweenaw Bay Indian Cmty. v. 

Naftaly, 452 F.3d 514, 525-27 (6th Cir. 2006). The Bad River Band, which had 

also been allotted reservation land under that treaty and had paid property taxes on 

that land for years under protest, then requested that the Town remove from its tax 

rolls all fee simple land within the reservation owned by the Bad River Band or its 

members. 
No. 2018AP1133

4

¶6 The Town complied with the Bad River Band’s request. In 2007, the 

Town passed a resolution directing its assessor to designate as “non-taxable” any 

land owned by the Bad River Band or its members that had been allotted in fee 

simple pursuant to the 1854 treaty. Afterward, the Department issued several 

guidance documents in response to municipal inquiries about the federal court 

decision. The Department’s position was that property allotted under the 1854 

treaty was to be presumed exempt and that any municipality bore the burden of 

proving the exemption no longer applied. The Department stated that if, for 

example, the property had been transferred out of tribal ownership, it would “likely” 

lose its exemption and become taxable even if subsequently transferred back to the 

tribe or its members. 

¶7 In 2008, the Department became aware of the blanket exclusion 

granted by the Town, and it fielded complaints about the Town’s assessment 

practices. The Department was also in contact with the Town’s assessor during this 

time, during which the Town continued to assert that its legal interpretation of the 

Keweenaw Bay opinion was correct. Several years later, the Department ultimately 

adopted statewide guidance in response to the Keweenaw Bay opinion in the 

Wisconsin Property Assessment Manual (the “Assessment Manual”):

On February 8, 1887, Congress enacted the General 

Allotment Act which applies to all Wisconsin tribes. Under 

that Act, real property that an individual Native American 

owns on a reservation in fee simple is subject to property tax. 

However, due to certain language in the Treaty of 1854, real 

property located within the reservation boundary of Bad 

River, Lac Courte Oreilles, Lac du Flambeau, and Red Cliff 

Chippewa bands is exempt if:

 It was allotted before February 8, 1887 under that 

Treaty,

 It is owned in fee simple by the tribe or tribal 

members, and
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5

 There has been no conveyance of the land to 

nontribal members since it was first allotted under 

the 1854 Treaty. For example, if the land had been 

exempt under the provisions of the 1854 Treaty, but 

was then sold to a nontribal member, the land would 

lose its exemption and be subject to property tax. 

Even if the land was later repurchased by an 1854 

Tribe, the land would remain subject to property tax.

Assessors should review tax roll information at the 

Municipality and County along with ownership information 

at the Register of Deeds office. The information will assist 

in determining if a property has changed ownership, was 

subject to property tax, and remains subject to property tax 

even though re-purchased by an 1854 Tribe.

WISCONSIN PROPERTY ASSESSMENT MANUAL 22-25 to 22-26 (2013) 

(footnote omitted). 

¶8 Despite the Department’s guidance endorsing a property-by-property 

analysis, the Town persisted in its blanket exclusion for tax purposes of Bad River 

Band property. In 2015, the Town issued a letter expressing its refusal to rescind 

the 2007 resolution. The Town acknowledged that its resolution contradicted the 

Department’s guidance in the Assessment Manual, but it stated it “respectfully 

disagree[d]” with the Department’s directives. 

¶9 Also during 2015, the Taxpayers petitioned the Department to 

conduct a town-wide reassessment. Following an investigation and a public 

hearing, the Department declined to order a reassessment. It concluded a 

reassessment would not promote the public interest, and, noting that the Town’s 

assessor had recently retired, it observed that any potential errors in the tax treatment 

of certain parcels might be rectified by the new assessor. The Taxpayers did not 

appeal the Department’s determination. Rather, they continued corresponding with 

the Department regarding particular parcels they believed should be taxed. 
No. 2018AP1133

6

¶10 The Department, highlighting that property assessment and taxation 

is a municipal process, responded that it was in contact with the Town assessor on 

the issue. Indeed, in 2016, the Department engaged with the Town and its assessor 

through several letters, acknowledging that the new assessor had inherited the task 

of a parcel-by-parcel review from his predecessor but stressing the need for 

uniformity in taxation. When the new assessor responded that the task of gathering 

and reviewing real estate title data for each parcel affected by the 2007 resolution 

was “monumental” and would require nearly three years to complete, the 

Department provided further guidance in an effort to have the review completed by 

2018. 

¶11 Meanwhile, the Taxpayers paid their 2015 taxes under protest and 

then filed claims with the Town for excessive and unlawful taxation. The Town 

denied the claims, and the Taxpayers sought certiorari review. In December 2016, 

the circuit court concluded that the Town had acted contrary to the Assessment 

Manual and to the specific written guidance the Department had issued to the Town 

and its assessor.2 The Town was ordered to place all properties subject to the 2007 

resolution back on the tax roll, unless there was evidence presented that an 

individual property was exempt from taxation in accordance with the Department’s 

Assessment Manual guidance. The Town did not appeal that decision and order.

¶12 As the certiorari action against the Town proceeded, the Taxpayers 

filed the present action against the Department and Town entities and officials, 

purportedly on behalf of all Ashland County taxpayers. As relevant here, the 

 

2

 Those proceedings, which occurred in Ashland County Circuit Court case 

No. 2016CV30, were also conducted by the Honorable John M. Yackel. 
No. 2018AP1133

7

Taxpayers alleged that the Department was dilatory in its efforts to correct the 

Town’s alleged non-uniform taxation, allowing an unlawful taxation scheme to 

persist for years.3 They asserted that the Department had violated its general 

supervisory duties contained in WIS. STAT. § 73.03(1), as well as its specific duties 

relating to the supervision of local assessors under WIS. STAT. § 73.06(1) and (3). 

The Taxpayers sought declaratory and injunctive relief, a town-wide reassessment, 

a $1.5 million refund for the allegedly unlawful taxes paid by Ashland County 

residents, a writ of mandamus compelling the Department to comply with WIS.

STAT. ch. 73, and attorney fees. 

¶13 The Taxpayers moved for summary judgment against the Department 

on three claims: (1) that the Department participated in a violation of the Wisconsin 

Constitution’s uniformity clause; (2) that the Department breached alleged statutory 

duties under WIS. STAT. §§ 73.03 and 73.06 by failing to correct the Town’s nonuniform taxation; and (3) that the Department breached a duty to ensure that the 

Town’s assessors complied with WIS. STAT. § 70.32(1). The Taxpayers also 

asserted they were entitled to judgment on their claim for all attorney fees incurred 

in connection with both the present case and the certiorari action. 

¶14 The Department also filed a motion for summary judgment. The 

Department argued that any claims for which the Taxpayers sought damages or 

other monetary relief, including attorney fees, were barred by the doctrine of 

sovereign immunity. The Department also asserted that the Taxpayers’ request for 

 

3

 Given our conclusion that sovereign immunity bars the Taxpayers’ claims seeking 

monetary damages as relief, we need not conduct an exhaustive review of the nature of those claims. 

Suffice it to say that while the Taxpayers’ primary allegation was that the Department had violated 

the Wisconsin Constitution’s uniformity clause, see WIS. CONST. art. VIII, § 1, they also advanced 

claims under various other provisions of the United States Code and the state and federal 

constitutions, including due process and equal protection claims. The Taxpayers also initially 

advanced a takings claim, which they have since abandoned. 
No. 2018AP1133

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mandamus or other injunctive relief failed as a matter of law because the duties the 

Taxpayers had alleged had been rendered moot by the certiorari decision or were 

discretionary in nature. 

¶15 The circuit court granted the Taxpayers’ motion for partial summary 

judgment. After setting forth numerous facts,4the court concluded the Department 

had violated the Taxpayers’ constitutional right to uniform taxation and had 

abdicated its duties under various provisions of WIS. STAT. §§ 73.03, 73.06, and 

70.32. The court determined the Taxpayers were entitled to any damages they could 

prove at trial, as well as any attorney fees incurred in connection with the present 

case and the certiorari action. The court set the matter for trial on the issues of the 

Taxpayers’ damages and the amount of any attorney fees.5 

¶16 Although the circuit court also denied the Department’s summary 

judgment motion, it did not address the Department’s arguments regarding the 

applicability of sovereign immunity or the appropriateness of mandamus relief. The 

Department petitioned this court for interlocutory review, which we granted. On 

appeal, the Department argues the court’s decision should be reversed because 

sovereign immunity bars all claims seeking monetary relief and because mandamus 

 

4

 Although the circuit court designated its recitation of facts as “findings of fact,” we note 

that circuit courts do not make findings of fact when ruling on a summary judgment motion. See 

Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, ¶11, 313 Wis. 2d 272, 756 N.W.2d 

596. On summary judgment, a circuit court should either identify the relevant undisputed facts, or, 

if the relevant facts are disputed, deny the motion and set the matter for trial. Given that the material 

facts in this case are all undisputed, such a designation is of no moment. 

5

 The circuit court’s order dismissed Department secretary Richard Chandler as a party. 

The Taxpayers have not appealed that determination. 
No. 2018AP1133

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relief is not appropriate on any remaining claims as a matter of law.6 Consequently, 

the Department argues it was entitled to summary judgment dismissing all of the 

Taxpayers’ claims against it. 

DISCUSSION

¶17 Whether the circuit court properly granted summary judgment is a 

question of law this court reviews de novo. Racine Cty. v. Oracular Milwaukee, 

Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88. The summary judgment 

methodology is well established. See Tews v. NHI, LLC, 2010 WI 137, ¶4, 330 

Wis. 2d 389, 793 N.W.2d 860. Summary judgment shall be granted to a party “if 

the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to judgment as a matter of law.” 

WIS. STAT. § 802.08(2). The parties here are in agreement about the basic facts; the 

questions to be decided are purely matters of law. 

I. Sovereign Immunity and the Taxpayers’ Claims for Monetary Damages and 

Attorney Fees

¶18 Sovereign immunity derives from article IV, section 27 of the 

Wisconsin Constitution, which states, “The legislature shall direct by law in what 

manner and in what courts suits may be brought against the state.” From this 

language, our supreme court has developed a rule that the state “cannot be sued 

 

6

 Given our disposition of the Taxpayers’ various claims, we need not address additional 

arguments that the Department raises. These include whether certain statutes create a private right 

of action against the state, or whether the determination in the certiorari action rendered these 

proceedings moot. We generally do not address issues that are not dispositive. See Gross v. 

Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938).
No. 2018AP1133

10

without its consent.” City of Kenosha v. State, 35 Wis. 2d 317, 322, 151 N.W.2d 

36 (1967). If the legislature has not specifically consented to the suit, then sovereign 

immunity generally deprives a court of personal jurisdiction over the state. PRN 

Assocs. LLC v. DOA, 2009 WI 53, ¶51, 317 Wis. 2d 656, 766 N.W.2d 559.7

¶19 “A suit against a state agency constitutes a suit against the State for 

purposes of sovereign immunity.” Id.8 The Taxpayers have not directed us to any 

statute specifically authorizing their lawsuit against the Department. Rather, they 

argue that there is “no sovereign immunity for monetary claims based upon a state 

denying individuals their constitutionally guaranteed rights.” 

 

7

 WISCONSIN STAT. § 775.01 discusses actions against the state:

 Upon the refusal of the legislature to allow a claim against the 

state the claimant may commence an action against the state by 

service as provided in s. 801.11(3) and by filing with the clerk of 

court a bond, not exceeding $1,000, with 2 or more sureties, to be 

approved by the attorney general, to the effect that the claimant 

will indemnify the state against all costs that may accrue in such 

action and pay to the clerk of court all costs, in case the claimant 

fails to obtain judgment against the state.

“Section 775.01 is limited to claims which, if valid, would render the State a debtor to the claimant.” 

Brown v. State, 230 Wis. 2d 355, 364, 602 N.W.2d 79 (Ct. App. 1999); see also WIS. STAT.

§ 16.007 (establishing a claims board, which must review and make a recommendation on 

monetary claims in excess of $10 before the claim may be considered by the legislature). 

The Taxpayers do not assert they have complied with these statutes, and the parties do not 

discuss these statutes on appeal. We therefore decline to further address them. See Industrial Risk 

Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 

82 (observing that appellate courts will not abandon their neutrality to develop arguments on a 

party’s behalf). 

8

 The state may create agencies with proprietary powers or functions sufficiently 

independent of the state such that they can be sued, but the Department is not such an entity. Appel 

v. Halverson, 50 Wis. 2d 230, 235, 184 N.W.2d 99 (1971). Moreover, the defense of sovereign 

immunity can be waived, but the Taxpayers do not argue waiver is applicable here. See id.
No. 2018AP1133

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¶20 The exception to sovereign immunity that the Taxpayers advance 

appears to be a novel construct. There is an existing exception to sovereign 

immunity that permits courts to “entertain actions to enjoin state officers and state 

agencies from acting beyond their constitutional or jurisdictional powers,” but this 

exception requires that a complaint allege “action outside the lawful authority of the 

officer or agency.” Appel v. Halverson, 50 Wis. 2d 230, 235, 184 N.W.2d 99 

(1971). Here, the Taxpayers have not alleged that the Department has done 

something that exceeded the bounds of its authority; rather, they argue the 

Department failed to do what was required of it. In other words, they fault the 

Department for not exercising the full limits of its authority, rather than it exceeding 

its authority.

¶21 State agencies, although created by the legislature, are not necessarily 

instrumentalities of the legislature, and they generally cannot spend money not 

appropriated to them by the legislature. See Lister v. Board of Regents of Univ. of 

Wis. Sys., 72 Wis. 2d 282, 293, 240 N.W.2d 610 (1976). For this reason, we require 

that the legislature clearly express its intention to subject itself—qua the state—to

liability. See Erickson Oil Prods., Inc. v. State, 184 Wis. 2d 36, 52, 516 N.W.2d 

755 (Ct. App. 1994); Metzger v. Wisconsin Dep’t of Taxation, 35 Wis. 2d 119, 131, 

150 N.W.2d 431 (1967). “It is the role of the legislature, rather than that of the 

court, to consent to suit against the State.” PRN Assocs., 317 Wis. 2d 656, ¶66. 

¶22 Given the foregoing, Wisconsin courts have looked to the nature of 

the relief sought when determining whether sovereign immunity bars an action. For 

example, when a plaintiff brings suit against the state seeking a declaratory 

judgment to resolve the constitutionality or the proper interpretation and application 

of statutory provisions, it is necessary to “engage in a fiction that allows such actions 

to be brought against the ... agency charged with administering the statute” on the 
No. 2018AP1133

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theory that a suit is not against the state when the agency is alleged to have acted 

outside the bounds of its constitutional or jurisdictional authority. Lister, 72 Wis. 2d 

at 303. The public policy considerations attendant to sovereign immunity do not 

apply with equal force to such actions for declaratory relief, id. at 304, and if the 

only consequence flowing from the desired declaration of rights is to determine the 

plaintiff’s right to recover damages, the claim is not justiciable, id. at 308. 

¶23 The Department cites two cases that illustrate the distinction between 

suing the state for monetary damages and suing for declaratory or injunctive relief. 

The first, Town of Eagle v. Christensen, 191 Wis. 2d 301, 529 N.W.2d 245 (Ct. 

App. 1995), bears a striking resemblance to this case. There, the plaintiffs sought 

declaratory relief for an alleged uniformity violation that resulted when the 

Department failed to cure erroneous classifications of property made by local 

assessors.9 Id. at 311. Citing Lister, we concluded that sovereign immunity did not 

bar the plaintiffs’ suit against the Department “because damages are not being 

sought from the state. The complaint alleges that the state officers are acting in 

violation of the constitution and certain statutes, thus injunctive and declaratory 

relief are appropriate and are not precluded by sovereign immunity.” Id. at 320.

¶24 We reached a similar result in Manitowoc Co. v. City of Sturgeon 

Bay, 122 Wis. 2d 406, 362 N.W.2d 432 (Ct. App. 1984). Manitowoc Company paid 

certain property taxes under protest annually, and when the city denied its refund 

claims, it filed suit against the city and the Department. Id. at 410. Manitowoc Co. 

 

9

 The Taxpayers misread Town of Eagle v. Christensen, 191 Wis. 2d 301, 529 N.W.2d 

245 (Ct. App. 1995), in asserting that the decision merely “clarifies the use of the legal fiction that 

a state agency is not ‘the state’ in the context of seeking relief for a confirmed constitutional 

violation.” Town of Eagle does not permit a conclusion that all claims seeking monetary relief for 

claimed constitutional violations are permitted to proceed. Rather, that decision recognizes that 

the success or failure of a claim against the state, for sovereign immunity purposes, turns upon the 

nature of the relief sought. Id. at 320.
No. 2018AP1133

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sought to recover the alleged overpayments from the city, and it sought declaratory 

relief against the Department directing the agency to declare its property exempt 

from future assessments. Id. Recognizing that the applicability of sovereign 

immunity depends upon the nature of the relief sought, we concluded that because 

Manitowoc Co. sought a refund only from the municipality, sovereign immunity did 

not apply. Id. at 412. “[O]nly the city is liable for an erroneous classification.” Id.

¶25 The Taxpayers rely on Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 

67 (1983), but that case supports the Department’s position that the Taxpayers’ 

claims seeking damages and attorney fees are barred by sovereign immunity. In 

Zinn, the plaintiff alleged an unlawful taking of property by the state without just 

compensation, contrary to the Wisconsin Constitution. Id. at 421-22. The State 

asserted the plaintiff could have no monetary remedy because it had not consented 

to the suit, and the claim seeking just compensation was therefore barred by 

sovereign immunity. Id. at 432. 

¶26 After concluding that the plaintiff had no remedy under state statutes, 

our supreme court nonetheless determined that “the doctrine of sovereign immunity 

has only limited applicability to actions against the state which allege a 

constitutional taking of private property without just compensation.” Id. at 435. 

The court endorsed the view that the constitutional directive that persons receive 

just compensation for takings of their private property was “self-executing.” Id. at 

435-36. Because the authorization for such suits was located in the constitution 

itself, no express statutory provision for its enforcement was necessary. Id. at 436.

¶27 Although the Taxpayers emphasize the Department’s supposedly 

“egregious conduct” in allowing a uniformity violation to persist, they fail to 

identify any self-executing constitutional provision relevant to their claims. The 
No. 2018AP1133

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Wisconsin Constitution’s uniformity clause states, as relevant here: “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.” WIS.

CONST. art. VIII, § 1. No language in that section is analogous to the constitution’s 

command that “[t]he property of no person shall be taken for public use without just 

compensation therefor.” See WIS. CONST. art. I, § 13. “Just compensation” is a 

constitutional directive contained within in the takings clause; nowhere does the 

uniformity clause authorize general damages for an alleged violation of the 

uniformity principle.

¶28 The Department is therefore correct that, with respect to the alleged 

egregiousness of the Department’s conduct, such an inquiry into the merits of the 

Taxpayers’ claims is unnecessary and irrelevant. Also, we agree with the 

Department’s statement that “immunity does not rise and fall on whether someone 

can recover money some other way.” The legislature could have made the 

Department (and, by extension, the state) liable for any errors or missteps in the 

exercise of the Department’s functions that produce non-uniform taxation, but it has 

not done so. “If there are inequities resulting from the doctrine of sovereign 

immunity, it is the sole function of the legislature to act, not the courts.” Erickson 

Oil, 184 Wis. 2d at 54. 

¶29 In focusing on the alleged egregiousness of the Department’s conduct, 

the Taxpayers posit that suits for damages as a result of alleged unconstitutional 

conduct are permitted under state and federal law. First, they rely on a footnote in 

Old Tuckaway Assocs. Ltd. Partnership v. City of Greenfield, 180 Wis. 2d 254, 

509 N.W.2d 323 (Ct. App. 1993), which discussed generally the notion that, under 

federal law, a violation of certain constitutional dictates may give rise to an action 

for damages against the individual that caused the violation, even in the absence of 
No. 2018AP1133

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a statute authorizing such a suit.10 See id. at 269 n.4. That discussion, however, did 

not touch upon sovereign immunity principles; nor need it have, as Old Tuckaway

involved only a lawsuit against a municipality. “Unlike the State, municipal bodies 

are not protected by sovereign immunity.” Umansky v. ABC Ins. Co., 2008 WI 

App 101, ¶38, 313 Wis. 2d 445, 756 N.W.2d 601, aff’d and remanded, 2009 WI 82, 

319 Wis. 2d 622, 769 N.W.2d 1. 

¶30 The Taxpayers also rely on McKesson Corp. v. Division of Alcoholic 

Beverages & Tobacco, 496 U.S. 18 (1990), for the proposition that sovereign 

immunity does not apply to their action for damages resulting from improper 

taxation. There, the plaintiff successfully sued the State of Florida, alleging its 

liquor excise tax violated the federal commerce clause. Id. at 22. However, the 

Florida Supreme Court, while awarding injunctive relief, refused to provide a refund 

of the taxes the plaintiff had already paid. Id. The United States Supreme Court 

subsequently concluded that, as a matter of due process, Florida was obligated “to 

provide meaningful backward-looking relief to rectify any unconstitutional 

deprivation.” Id. at 31.

¶31 There are two problems with the Taxpayers’ reliance on McKesson. 

First, the Supreme Court explained that Florida courts had “accepted jurisdiction 

over this suit which sought monetary relief from various state entities.” Id. at 26. 

Because Florida conceded that it had waived any sovereign immunity defense, the 

Court did not discuss the application of the doctrine. See id. at 49 n.33. Second, 

and perhaps more importantly, an agency of the State of Florida had collected the 

 

10

 The Taxpayers’ federal claim, which was based upon an alleged violation of 42 U.S.C. 

§ 1983 (2018), did not abrogate the state’s sovereign immunity. That statute was not intended to 

“disregard the well-established immunity of a State from being sued without its consent.” Will v. 

Michigan Dep’t of State Police, 491 U.S. 58, 67 (1989). The Taxpayers appear to have conceded 

that sovereign immunity bars their federal 42 U.S.C. § 1983 claim. 
No. 2018AP1133

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tax. Here, it is undisputed that the Department did not and does not directly collect 

property taxes, and, therefore, it has no tax monies to refund.

¶32 Rather than support the Taxpayers’ claims, all of these cases highlight 

that if the Taxpayers have a monetary remedy for the alleged unlawful taxation, it 

lies against the Town and the Town alone. Wisconsin law provides such 

mechanisms for relief: WIS. STAT. § 74.35 describes how a taxpayer may recover 

for an unlawful tax levy and collection from “the taxation district which collected 

the tax”; and WIS. STAT. § 74.37 provides a mechanism for a claim for an excessive 

assessment “against the taxation district.” Indeed, the Taxpayers successfully 

advanced such claims against the Town in the certiorari action. Although the

Taxpayers are highly critical of the Town’s handling of those claims, the Town’s 

refusal to award them relief under those statutes does not ipso facto prevent 

application of sovereign immunity in a separate action against the state. 

¶33 The foregoing principles also defeat the Taxpayers’ request for 

attorney fees. Similar to money damages, “costs may not be taxed against the state 

or an administrative agency of the state unless expressly authorized by statute.” 

Martineau v. State Conservation Comm’n, 54 Wis. 2d 76, 79, 194 N.W.2d 664 

(1972). Here, the only statutory provision to which the Taxpayers point is a generic 

statute concerning mandamus relief, which states that the successful mandamus 

plaintiff “shall recover damages and costs.” See WIS. STAT. § 783.04. Because we 

conclude herein that the Taxpayers’ request for a writ of mandamus fails on its 

merits, whether § 783.04 applies to the Department in this case is irrelevant.

¶34 The Taxpayers assert they are also entitled to attorney fees under 

Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002 (1922), as well as the private 
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attorney general doctrine.11 Judicially created doctrines like the one adopted in 

Weinhagen and the private attorney general doctrine do not constitute the explicit 

statutory authorization from the legislature necessary for the recovery of attorney 

fees against the state. Regardless of how appropriately the Taxpayers believe those 

doctrines apply to the facts of this case, attorney fees are simply unavailable in the 

absence of an explicit legislative directive, and they have pointed to none.

¶35 Accordingly, we conclude that the Taxpayers’ claims seeking money 

damages against the Department, including a refund of the allegedly unlawful taxes 

paid and attorney fees, are barred by the doctrine of sovereign immunity. If the 

Taxpayers seek monetary relief, the proper entity to proceed against was, and 

remains, the Town and the Town alone.

II. Entitlement to Mandamus

¶36 A writ of mandamus is a discretionary writ that is issued to compel 

the performance of a particular act by a lower court or governmental officer or body. 

See Miller v. Smith, 100 Wis. 2d 609, 621, 302 N.W.2d 468 (1981); Mandamus, 

BLACK’S LAW DICTIONARY (11th ed. 2019). A writ of mandamus will issue only 

upon showing the following prerequisites: (1) a clear legal right; (2) a positive and 

plain duty; (3) substantial damages; and (4) the absence of any other adequate 

remedy at law. Law Enf’t Standards Bd. v. Village of Lyndon Station, 101 Wis. 2d 

472, 494, 305 N.W.2d 89 (1981). Additionally, the duty to act on the part of the 

 

11

 Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002 (1922), acknowledged the general 

rule that attorney fees are not recoverable, but it noted an exception when the wrongful acts of the 

defendant have forced the plaintiff into litigation with others, or made it necessary to incur expense 

to protect his or her interests in relation to others. Id. at 65. 

For a discussion of the private attorney general doctrine, including its common law origins, 

see Estate of Miller v. Storey, 2017 WI 99, ¶¶54-60 & n.25, 378 Wis. 2d 358, 903 N.W.2d 759. 
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government official must be “clear and unequivocal”; a circuit court erroneously 

exercises its discretion by issuing such a writ when the duty to be performed requires 

the exercise of discretion. Id.

¶37 The Department asserts that the Taxpayers have never identified—at 

least not with sufficient precision—any statutory duty that it supposedly ignored. 

The Taxpayers, on the other hand, present “examples” of what they argue are 

mandatory duties under WIS. STAT. §§ 73.03, 73.06 and 70.32.12 Because these 

statutes are wide-ranging (§ 73.03 alone has more than seventy provisions 

describing the Department’s powers and duties), we confine our review to those 

statutory provisions that the Taxpayers affirmatively raise on appeal. See State v. 

Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (holding that 

appellate courts will not address undeveloped arguments). 

¶38 The Taxpayers argue that certain of WIS. STAT. § 73.03’s provisions 

are not discretionary and required the Department to act. Specifically, they point to 

subsection (3), which states it is the Department’s duty:

To direct proceedings, actions and prosecutions to be 

instituted to enforce the laws relating to the penalties, 

liabilities and punishment of public officers, persons, and 

officers or agents of corporations for failure or neglect to 

comply with the provisions of the statutes governing the 

return, assessment and taxation of property; and to cause 

complaints to be made against assessors, members of boards 

of review, assessors of incomes, and members of county 

boards, or other assessing or taxing officers, to the proper 

circuit judge for their removal from office for official 

misconduct or neglect of duty.

 

12

 In making this argument, the Taxpayers assert we are bound by the circuit court’s 

findings of fact. Again, the appropriateness of summary judgment presents a question of law; a 

circuit court does not make factual findings on summary judgment, and if it does, we are not bound 

by them. The existence of any genuine dispute of material fact precludes summary judgment. 

Again, the underlying facts in this case are not disputed.
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The Taxpayers also direct us to subsections (4), (9), (10) and (11), which 

collectively empower the Department to require district attorneys to assist it in 

prosecuting violations of the tax laws and authorize the Department to collect 

evidence and investigate potential improper assessment practices or violations of 

the tax laws. Finally, the Taxpayers cite subsection (12), which provides that the 

Department must “carefully examine into all cases where evasion or violation of the 

laws for assessment and taxation of property is alleged, complained of or 

discovered, and to ascertain wherein existing laws are defective or are improperly 

or negligently administered.” 

¶39 The Taxpayers also direct us to WIS. STAT. § 73.06. Under § 73.06(1) 

and (2), the Department has “complete supervision and direction of the work of the 

local assessors,” and it may access “all public records, books, papers and offices 

throughout each district” in support of its investigatory functions relative to the 

assessment and taxation of general property. The Taxpayers primarily focus on 

§ 73.06(3), though, which states that the Department “shall examine and test the 

work of assessors during the progress of their assessments and ascertain whether 

any of them is assessing property at other than full value or is omitting property 

subject to taxation from the roll.” If the Department concludes any property has 

been omitted or not assessed according to the law, it “shall bring the same to the 

attention of the local assessor of the proper district and if such local assessor shall 

neglect or refuse to correct the assessment they shall report the fact to the board of 

review.” Sec. 73.06(3). 

¶40 We agree with the Department that these broad grants of investigative 

and prosecutorial authority are not the types of activities that can be compelled by 

mandamus, as each of these duties requires the Department to use discretion, even 

if the existence of a violation is clear. In State ex rel. Kurkierewicz v. Cannon, 42 
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Wis. 2d 368, 166 N.W.2d 255 (1969), the petitioner sought to compel a district 

attorney to investigate the shooting death of her son. Id. at 373. The court, however, 

held that such broad investigatory powers as are enjoyed by district attorneys are 

not amenable to mandamus.13 Id. at 379. Even when a statute requires the 

government actor to take some specific action upon a condition occurring—there, 

the district attorney’s obligation to call an inquest if there was any reason to believe 

the death was a result of a criminal act—the act is no less discretionary. Id. at 381-

84.

¶41 Our supreme court reached a similar answer when asked to decide 

whether the civil enforcement of town ordinances is a nondiscretionary, ministerial 

duty that can be compelled by mandamus. See Vretenar v. Hebron, 144 Wis. 2d 

655, 658, 424 N.W.2d 714 (1988). As a general matter, the duty to prosecute “is 

vested with discretion as to the manner in which it is exercised.” Id. at 663. The 

government is not possessed of unlimited resources; state actors are not required to 

prosecute all cases in which it appears the law has been violated.14 See id. at 664. 

As is clear from Kurkierewicz and Vretenar, in the area of criminal and civil 

investigative and enforcement activities, government actors invariably employ 

discretion so as to make those activities not amenable to mandamus relief absent a 

statute compelling a specific action under a specific set of facts. 

 

13

 Certain language in State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 

255 (1969), has been withdrawn to the extent it suggests that a district attorney may exercise his or 

her discretion free of judicial interference. See State v. Kenyon, 85 Wis. 2d 36, 45 & n.4, 270 

N.W.2d 160 (1978). 

14

 The fact that the source of authority includes the word “shall” does not necessarily 

establish that the duty is susceptible to mandamus relief. For example, despite the charge that 

district attorneys “shall” prosecute all criminal actions before a county court, our supreme court 

has not interpreted this language to limit the prosecutor’s discretion on whether to prosecute a 

particular case. Vretenar v. Hebron, 144 Wis. 2d 655, 665-66, 424 N.W.2d 714 (1988).
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¶42 We view the Department’s “duties” to which the Taxpayers point here 

as analogous to the investigative and enforcement activities at issue in these prior 

cases, not as directives that are so clear as to strip any discretion from the 

Department. Although the Taxpayers suggest WIS. STAT. § 73.06(3) left the 

Department with no choice but to refer the matter to the Town board of review, such 

a referral was still contingent upon the Department concluding that the assessor’s 

inaction constituted neglect or a refusal to correct the assessment, a conclusion that 

is itself a discretionary determination. The statute implies that the Department is 

free to use measures short of a formal referral to secure compliance.

¶43 The Taxpayers also cite WIS. STAT. § 70.32(1) in support of their 

request for mandamus relief. That statute imposes no duties upon the Department. 

Rather, it states that “[r]eal 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.” 

Although the Taxpayers allege that the Department abdicated its oversight and 

supervisory functions in relation to the Town’s assessor, § 70.32(1) provides no 

basis for mandamus relief against the Department. Indeed, while the Taxpayers 

declared in their brief that “[o]ne of the obligations of [the Department] is to 

guarantee that assessors comply with WIS. STAT. § 70.32(1) and adhere to the 

[Assessment Manual],” they provided no citation in support of that proposition. 

¶44 Finally, the Taxpayers assert that even if all of the Department’s 

duties are discretionary, they are nonetheless entitled to mandamus relief because 

the Department failed to exercise its discretion. See State ex rel. Althouse v. City 

of Madison, 79 Wis. 2d 97, 106, 255 N.W.2d 449 (1977) (“[M]andamus is 

appropriate to compel the exercise of discretion.”). Even assuming that the 
No. 2018AP1133

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Taxpayers are correct as a legal matter—and mandamus can be used to compel the 

exercise of discretion where there is a mandate that the government actor use 

discretion and there is no evidence that the actor has even considered the matter—

the Taxpayers would not be entitled to mandamus relief under the circumstances of 

this case.

¶45 Specifically, the Taxpayers fail to identify or explain any material 

failing in the Department’s response to the Town’s allegedly rogue tax policy, other 

than its ultimate decision not to order a reassessment—a decision that the Taxpayers 

did not appeal. This situation is not one where the Department did nothing, as the 

Taxpayers allege; rather, the record is replete with efforts the Department took to 

obtain compliance with the guidance it had issued, both via letter and via adoption 

of specific provisions of the Assessment Manual.15 Although the Department did 

not go as far as the Taxpayers would have liked (in the sense that it did not deploy 

the full panoply of enforcement and prosecution tools available to it), the record 

does not show the Department failed, as a general matter, to exercise its discretion 

in dealing with the situation presented in the Town. 

CONCLUSION

¶46 We conclude the circuit court erred by granting the Taxpayers’ motion 

for partial summary judgment. Their claims for monetary damages and attorney 

fees are barred by the doctrine of sovereign immunity, and the Department is 

entitled to summary judgment dismissing the Taxpayers’ claims on that ground. 

Moreover, the Department is entitled to summary judgment on the Taxpayers’ claim 

 

15

 Indeed, the Department went so far as to warn the assessor he was not following the 

requirements for assessors, was engaging in misconduct, and was risking his assessor certification 

by continuing to ignore the Department’s guidance. 
No. 2018AP1133

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seeking mandamus relief, as they have failed to demonstrate that the Department 

has a “positive and plain duty” that can be compelled by a writ of mandamus. 

Accordingly, we reverse and remand with directions for the circuit court to dismiss 

the claims against the Department. 

By the Court.—Order reversed and cause remanded with directions.