2022 WI 51

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP485

COMPLETE TITLE: Wisconsin Property Tax Consultants, Inc. and 

Wisconsin Manufacturers and Commerce, Inc.,

 Plaintiffs-Appellants-Petitioners,

 v.

Wisconsin Department of Revenue,

 Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 398 Wis. 2d 654, 963 N.W.2d 103

PDC No: 2021 WI App 47 - Published

OPINION FILED: June 30, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 5, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Ozaukee 

JUDGE: Sandy A. Williams 

JUSTICES:

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. 

ZIEGLER, C.J., filed a concurring opinion. ROGGENSACK, J., 

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

joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were 

briefs filed by Don M. Millis, Karla M. Nettleson and Reinhart 

Boerner Van Deuren S.C., Madison. There was an oral argument by 

Don M. Millis. 

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

Brian P. Keenan, assistant attorney general, with whom on the 
2

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Brian P. Keenan. 

An amicus curiae brief was filed by Lucas T. Vebber, 

Anthony F. LoCoco and Wisconsin Institute for Law & Liberty, 

Milwaukee, for the Wisconsin Property Taxpayers, Inc. 
2022 WI 51

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP485

(L.C. No. 2019CV226)

STATE OF WISCONSIN : IN SUPREME COURT

Wisconsin Property Tax Consultants, Inc. and 

Wisconsin Manufacturers and Commerce, Inc.,

 Plaintiffs-Appellants-Petitioners,

 v.

Wisconsin Department of Revenue,

 Defendant-Respondent.

FILED

JUN 30, 2022

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. 

ZIEGLER, C.J., filed a concurring opinion. ROGGENSACK, J., 

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

joined.

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

cause remanded.

¶1 BRIAN HAGEDORN, J. When both a court and an agency 

may address an issue, who should decide first? That is the 

question this case presents, and the question the primary 

jurisdiction doctrine answers. We have held that a circuit 

court may stay its hand pending an agency's determination if the 

issue before it turns primarily on factual or technical 
No. 2020AP485

2

questions within the agency's expertise. But if the question is 

primarily one of law outside the agency's specialized 

competence, the circuit court should decide the question. In 

this case, the circuit court declined to decide whether a letter 

from the Wisconsin Department of Revenue (DOR) constituted an 

unpromulgated rule, deferring instead to the Tax Appeals 

Commission to decide that question first. We conclude that the 

circuit court erroneously exercised its discretion. Even if the 

Tax Appeals Commission has jurisdiction to address the 

unpromulgated rule question, it is a pure question of law 

outside the Tax Appeals Commission's expertise. The circuit 

court should have assumed jurisdiction and decided it.

I. BACKGROUND

¶2 In 2017, the Wisconsin Legislature enacted a new tax 

exemption for "machinery, tools, and patterns, not including 

such items used in manufacturing." 2017 Wis. Act 59, § 997j 

(codified at Wis. Stat. § 70.111(27)(b) (2017-18)). Seeking 

guidance on how the new exemption would be applied, Wisconsin 

Manufactures and Commerce, Inc. (WMC) sent a letter to DOR. In 

the letter, WMC articulated its view that "machinery, patterns 

and tools that are not used in manufacturing" are exempt even if 

that property is "located on manufacturing property." DOR 

disagreed. It explained by letter its view that "the new 

exemption does not apply to manufacturers."
No. 2020AP485

3

¶3 WMC responded by filing a declaratory judgment action 

in circuit court under Wis. Stat. § 227.40 (2019-20)1 raising 

three claims: (1) DOR's letter is an unpromulgated rule and is 

therefore invalid; (2) DOR's letter is invalid because it is 

inconsistent with the text of the new exemption; and (3) DOR's 

proffered interpretation violates various provisions of the 

Wisconsin and United States constitutions.2 Following crossmotions for summary judgment, the circuit court dismissed all 

three claims under the primary jurisdiction doctrine.3 It 

observed that the Tax Appeals Commission was then "considering 

how to interpret and apply Wis. Stat. § 70.111(27) to property 

owned and used by the manufacturers" and was "well suited to use 

its expertise in determining this issue." It therefore declined 

to assume jurisdiction over any of the three claims.

¶4 WMC appealed the circuit court's dismissal of the 

unpromulgated rule and constitutional claims only, and the court 

of appeals affirmed. Wis. Prop. Tax Consultants, Inc. v. DOR, 

2021 WI App 47, 398 Wis. 2d 654, 963 N.W.2d 103. WMC then 

sought this court's review, but only regarding the unpromulgated 

rule claim. We granted the petition for review.

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.

2 Wisconsin Property Tax Consultants, Inc. is also a 

plaintiff with WMC. We refer to the plaintiffs collectively as 

WMC.

3 The Honorable Sandy A. Williams of the Ozaukee County 

Circuit Court presided.
No. 2020AP485

4

II. PRIMARY JURISDICTION DOCTRINE

¶5 The primary jurisdiction doctrine comes into play when 

"both a court and an administrative agency have jurisdiction 

over resolution of issues in a dispute." City of Brookfield v. 

Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 420, 491 

N.W.2d 484 (1992). It is "a doctrine of comity" and judicial 

efficiency, with the purpose of promoting "the proper 

relationship between administrative agencies and courts." Id. 

Thus, primary jurisdiction deals not with the court's ability to 

decide the matter, but with "which portion of the disputesettling apparatus——the courts or the agency——should, in the 

interests of judicial administration, first take the 

jurisdiction that both the agency and the courts share." Gen. 

Tel. Co. of Wis. v. Auto-Owners Ins. Co., 140 Wis. 2d 10, 23, 

409 N.W.2d 133 (Ct. App. 1987). Where both the court and the 

agency have authority to answer the question presented, the 

circuit court has discretion to allow the agency to address the 

matter in the first instance or decide the question itself. 

Sawejka v. Morgan, 56 Wis. 2d 70, 78-79, 201 N.W.2d 528 (1972).

¶6 One of the primary considerations for a court 

determining whether to let an agency address a question first is 

the nature of the issue raised. City of Brookfield, 171 

Wis. 2d at 420-21; Wis. Collectors Ass'n, Inc. v. Thorp Fin. 

Corp., 32 Wis. 2d 36, 44-45, 145 N.W.2d 33 (1966). Where 

factual or technical issues predominate, our cases have 

counseled that "the better course may be" deferring to the 
No. 2020AP485

5

agency.4 City of Brookfield, 171 Wis. 2d at 421. This 

recognizes that the legislature creates agencies "to afford a 

systematic method of factfinding and policymaking," typically in 

areas that involve technical expertise. McEwen v. Pierce 

County, 90 Wis. 2d 256, 271, 279 N.W.2d 469 (1979). Agencies 

are designed to "provide uniformity and consistency in the 

fields of their specialized knowledge." Thorp, 32 Wis. 2d at

44. So when the issue involves factual or specialized questions 

that fit "squarely within the very area for which the agency was 

created," it is appropriate to allow the agency to address the 

matter first. Id. On the other hand, "when statutory 

interpretation or issues of law are significant," the circuit 

court will have less reason to let the agency decide the 

question first. City of Brookfield, 171 Wis. 2d at 421. This 

is particularly so where the controlling issue is primarily a 

question of law that "rests within the special expertise of the 

circuit court," rather than the agency. State v. Dairyland 

Power Coop., 52 Wis. 2d 45, 56, 187 N.W.2d 878 (1971).

¶7 Our cases have consistently drawn the line between 

fact-bound and agency-specialized questions (which may warrant 

deference) and predominately legal or nonspecialized questions 

(which do not).5 Recent developments in our approach to 

 

4 By "deferring" to an agency, we refer only to allowing the 

agency to address the matter first, not deferring to the 

agency's legal conclusions, which we no longer do. See Wis. 

Stat. § 227.57(11); Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 

Wis. 2d 496, 914 N.W.2d 21.

5 Besides the cases already cited, see Beal v. First Fed. 
No. 2020AP485

6

reviewing the work of administrative agencies reinforce this 

distinction.

¶8 When we review an agency decision, we defer to the 

agency's factual findings unless they are insufficiently 

supported. Wis. Stat. § 227.57(6). Furthermore, as the law 

instructs, we give "due weight" to "the experience, technical 

competence, and specialized knowledge of the agency involved, as 

well as discretionary authority conferred upon it." 

§ 227.57(10). Until recently, we also deferred to 

administrative agencies' conclusions of law in many 

circumstances. See, e.g., Milwaukee Symphony Orchestra, Inc. v. 

DOR, 2010 WI 33, ¶¶34-37, 324 Wis. 2d 68, 781 N.W.2d 674 

 

Sav. & Loan Ass'n of Madison, 90 Wis. 2d 171, 198, 279 

N.W. 2d 693 (1979); Browne v. Milwaukee Bd. of Sch. Dirs., 83 

Wis. 2d 316, 329-30, 265 N.W.2d 559 (1978) ("The issues 

remaining unresolved . . . must be mainly factual, rather than 

legal or constitutional. If not, the transfer was erroneous."); 

Kaski v. First Fed. Sav. & Loan Ass'n of Madison, 72 

Wis. 2d 132, 143-44, 240 N.W.2d 367 (1976) ("The 

discretion . . . is usually predicated upon whether there is a 

substantial factual dispute which should first be resolved by 

the administrative agency."); Browne v. Milwaukee Bd. of Sch. 

Dirs., 69 Wis. 2d 169, 176, 230 N.W.2d 704 (1975) ("[W]here 

there is no factual issue to be decided under the pleadings of 

the case and 'issues of law are significant,' the court may 

properly in its discretion entertain the proceedings."); City 

Firefighters Union, Loc. No. 311 v. City of Madison, 48 

Wis. 2d 262, 270, 179 N.W.2d 800 (1970); Noonan v. Nw. Mut. Life 

Ins. Co., 2004 WI App 154, ¶29, 276 Wis. 2d 33, 687 N.W.2d 254 

("[T]his case involves statutory and contract interpretation, 

which fall within the province of the court."); Providence Cath. 

Sch. v. Bristol Sch. Dist. No. 1, 231 Wis. 2d 159, 172, 605 

N.W.2d 238 (Ct. App. 1999); Madison Tchrs., Inc. v. Madison 

Metro. Sch. Dist., 197 Wis. 2d 731, 746-47, 541 N.W.2d 786 (Ct. 

App. 1995); Wis. Bell, Inc. v. DOR, 164 Wis. 2d 138, 144, 473 

N.W.2d 587 (Ct. App. 1991).
No. 2020AP485

7

(describing "three levels of deference to be granted to agency 

interpretations" of statutes). In 2018, however, we ended that 

practice. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 

Wis. 2d 496, 914 N.W.2d 21. Since our decision in Tetra Tech, 

the legislature has codified our approach, directing that when 

reviewing "an agency action or decision, the court shall accord 

no deference to the agency's interpretation of law." 

§ 227.57(11).

¶9 This shift in our approach to reviewing the legal 

interpretations of administrative agencies further strengthens——

and deepens——the historical distinction in our cases between 

issues raising factual and technical questions uniquely within 

the purview of an agency's expertise, and those raising 

predominantly legal and nonspecialized issues that are properly 

questions for the judicial branch. Although the analysis will 

depend on the specifics of each case, courts generally should 

decide pure questions of law when they are presented, 

particularly when those questions lie outside an agency's area 

of expertise. With this in mind, we examine the single claim 

WMC raises before us.

III. APPLICATION

¶10 WMC contends that the circuit court improperly 

dismissed its claim that the letter response from DOR 

constitutes an unpromulgated rule in violation of Wis. Stat. ch. 

227. We review the circuit court's decision to dismiss this 

claim under the primary jurisdiction doctrine for an erroneous 
No. 2020AP485

8

exercise of discretion. City of Brookfield, 171 Wis. 2d at 423. 

"We will sustain a discretionary act if we find the trial court 

examined the relevant facts, applied a proper standard of law, 

and using a demonstrative rational process, reached a conclusion 

that a reasonable judge could reach." Lane v. Sharp Packaging 

Sys., Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788.

¶11 In briefing and oral argument, WMC contended the 

primary jurisdiction doctrine is inapplicable here "because the 

tax appeals commission lacks jurisdiction over Wis. Stat. 

§ 227.40(1) declaratory judgment actions." Because other 

independently sufficient grounds are available to resolve this 

case, we do not address the Tax Appeals Commission's 

jurisdiction over the unpromulgated rule claim in this opinion. 

In particular, we received amicus briefing from Wisconsin 

Property Taxpayers, Inc. suggesting the primary jurisdiction 

doctrine was improperly applied for another reason. It argues, 

"When it comes to rulemaking challenges, such as the one brought 

in this case, the question presented is essentially a purely 

legal one," which the circuit court should decide in the first 

instance. Our analysis proceeds under this second argument.

¶12 WMC initially brought three claims against DOR: an 

unpromulgated rule claim, an inconsistent interpretation claim, 

and a constitutional claim. The circuit court dismissed all 

three under the primary jurisdiction doctrine. It explained:

At this time, there are numerous similar cases pending 

before the Tax Appeal Commission. The Commission is 

considering how to interpret and apply Wis. Stat. 

70.111(27) to property owned and used by the 
No. 2020AP485

9

manufacturers. That is the exact issue in this case. 

The Commission is well suited to use its expertise in 

determining this issue. Therefore, this court will 

not assume jurisdiction.

Regardless of whether this rationale had some relevance to the 

other claims originally filed, it is insufficient with respect 

to the only claim now before us——the unpromulgated rule claim.6

¶13 Under our cases, the primary jurisdiction doctrine 

should generally be analyzed claim-by-claim. See City of 

Brookfield, 171 Wis. 2d at 424 (analyzing claims individually). 

The unpromulgated rule claim in this case would not benefit from 

the Tax Appeals Commission's specialized expertise in tax law or 

its fact-finding capabilities. Rather, it requires only 

interpreting and applying the statute that defines an 

administrative rule (Wis. Stat. § 227.01(13)) and its related 

procedural prerequisites. This presents a pure question of law.

Indeed, recognizing the absence of any significant factual 

dispute, WMC and DOR both moved for summary judgment on the 

claim.7 It is a question that does not draw upon the Tax Appeals 

Commission's expertise in tax matters; it goes to the authority 

and process by which an agency must adopt and administer the 

law. Whatever the Tax Appeals Commission would conclude 

 

6 WMC's petition for review did not challenge the circuit 

court's dismissal of the inconsistent interpretation claim or 

the constitutional claim. We therefore offer no opinion on 

whether the circuit court properly exercised its discretion by 

dismissing those claims.

7 See Providence Cath. Sch., 231 Wis. 2d at 172 ("Factual 

issues are nonexistent; indeed, both parties moved the court for 

summary judgment, asserting that there were no material issues 

of fact.").
No. 2020AP485

10

(assuming it can opine on this question), the determination of 

whether DOR's letter constitutes an unpromulgated administrative 

rule would ultimately be decided independently by a court, 

without deference to the Tax Appeals Commission. See Wis. Stat. 

§ 227.57(11); Tetra Tech, 382 Wis. 2d 496.

¶14 In view of this, and considering the circuit court's 

reasoning, we conclude the circuit court erroneously exercised 

its discretion because it did not apply the proper standard of 

law. Lane, 251 Wis. 2d 68, ¶19. The circuit court's reasoning 

was brief; it did not examine the unpromulgated rule claim at 

all. As best we can tell, it appears the court focused on the 

other claims presented to it——in particular, the interpretation 

of Wis. Stat. § 70.111(27)(b) DOR offered in its letter. So 

while the circuit court explained its decision to defer to the 

Tax Appeals Commission regarding the proper interpretation of 

§ 70.111(27)(b), it gave no justification for its decision to 

defer on the question of whether DOR's letter was an 

unpromulgated rule. See City of Brookfield, 171 Wis. 2d at 423 

(reversing when a court "failed to engage in a reasoned 

consideration" regarding a particular claim). Nor did the court 

observe the distinction our cases have made between factual and 

technical issues on the one hand, and pure questions of law 

outside the expertise of agencies like the Tax Appeals 

Commission on the other.

¶15 As we have explained, the unpromulgated rule claim in 

this case involves the interpretation and application of a 

statute to undisputed facts. As a pure question of law in a 
No. 2020AP485

11

nonspecialized area, this is an issue properly addressed to the 

court's expertise. Noonan v. Nw. Mut. Life Ins. Co., 2004 

WI App 154, ¶29, 276 Wis. 2d 33, 687 N.W.2d 254 (rejecting a 

claim that the primary jurisdiction doctrine required deference 

to the agency because the case was one of "statutory and 

contract interpretation, which fall within the province of the 

court"). By contrast, the Tax Appeals Commission interprets and 

administers the tax code and adjudicates taxpayer claims. Wis. 

Stat. § 73.01(4). It has no unique expertise over whether a 

letter fits the definition of a rule. Wisconsin Stat. 

§ 227.01(13), which defines a rule, is a broadly applicable 

administrative law statute falling outside the tax code and 

beyond the Tax Appeals Commission's specialized knowledge. And 

although we express no opinion on the merits of the 

unpromulgated rule claim, which remains to be adjudicated by the 

circuit court on remand, it presents a question that fits 

squarely within the expertise of the judicial branch. We 

conclude the circuit court erroneously exercised its discretion 

when it dismissed this claim. Applying our precedents to the 

unpromulgated rule claim in this case, we conclude deference to 

the Tax Appeals Commission is not warranted under the primary 

jurisdiction doctrine.

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

reversed, and the cause is remanded to the circuit court for 

further proceedings consistent with this opinion.
No. 2020AP485.akz

1

¶16 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). The 

Department of Revenue ("DOR") provided the Wisconsin 

Manufacturers and Commerce ("WMC") an interpretation of Wis. 

Stat. § 70.111(27)(b), a statute governing taxes for 

manufacturing properties. In response, WMC brought a 

declaratory judgment suit challenging the DOR's interpretation. 

The circuit court dismissed WMC's claims under the primary 

jurisdiction doctrine. The majority concludes that the circuit 

court erred because the issue presented, i.e., whether the DOR 

followed proper rulemaking procedures, is one that falls 

squarely within the province and expertise of the courts. See

majority op., ¶15 (reasoning that the issue presented is "a pure 

question of law in a nonspecialized area" and is "properly 

addressed to the court's expertise"). While the majority's 

reasoning may very well be correct, it is unnecessary. The 

majority fails to recognize that WMC could not bring their 

claims before the Tax Appeals Commission ("TAC"). WMC has no 

assessment that could be appealed; they are not a manufacturer. 

When a party could not possibly proceed before the TAC, the 

primary jurisdiction doctrine does not apply. There is only one 

jurisdiction for WMC to bring their claims: the courts. As a 

result, I respectfully concur.

¶17 The primary jurisdiction doctrine applies only where 

"a court and an administrative agency have jurisdiction over 

resolution of issues in a dispute." City of Brookfield v. 

Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 420, 491 

N.W.2d 484 (1992). The doctrine cannot apply when the party 
No. 2020AP485.akz

2

bringing the issue cannot bring the matter before the agency. 

See, e.g., Ryan v. Chemlawn Corp., 935 F.2d 129, 131-32 (7th 

Cir. 1991) (explaining that the plaintiff must be allowed "the 

opportunity to [obtain relief] from the only forum that can 

provide [it], the court" and declining to apply the primary 

jurisdiction doctrine); United States v. Haun, 124 F.3d 745, 

750-52 (6th Cir. 1997) (holding that the primary jurisdiction 

doctrine does not apply where the plaintiff could not go before 

the relevant agency, reasoning that "[i]f no administrative 

forum is available . . . a court should reassert or, as the case 

may be, retain its jurisdiction"); City of Brookfield, 171 

Wis. 2d at 416-24 (applying the primary jurisdiction doctrine 

where the plaintiffs could present their dispute to the relevant 

agency).

¶18 I do not join Justice Roggensack's concurrence because 

it goes too far to answer questions not before the court. 

Justice Roggensack may very well be correct that the TAC lacks 

jurisdiction to resolve whether a DOR interpretation is an 

unpromulgated rule. See Justice Roggensack's concurrence, ¶¶30-

34. But I am hesitant to answer an issue so broadly such that 

it appears that a litigant might be precluded from even raising 

that as a part of their broader argument before the TAC. For 

example, perhaps a litigant should be able to argue that an 

assessment is faulty for a variety of reasons, one of which 

being that the assessment stems from an unpromulgated rule. 

Even if the TAC does not have jurisdiction over rulemaking, Wis. 

Stat. § 227.40(2)(e) seems to suggest that persons who challenge 
No. 2020AP485.akz

3

administrative decisions under Wis. Stat. § 227.52 may be 

statutorily required to present rulemaking arguments to the TAC. 

See § 227.40(2)(e) (stating that persons bringing a § 227.52 

claim may dispute the "validity of [a] rule or guidance 

document" if that rule or guidance document was "duly challenged 

in the proceeding before the agency in which the order or 

decision sought to be reviewed was made or entered"). Here, we 

need not decide that issue because WMC could not have brought 

this challenge before the TAC. 

¶19 To apply the primary jurisdiction doctrine to a party 

that cannot go before the TAC is an erroneous exercise of 

discretion. Employing the primary jurisdiction doctrine against 

WMC would deny them their day in court and require WMC to sit 

idly by while they await another party to bring the issues 

presented to the TAC. Accordingly, I join the majority's 

mandate. 

¶20 For the foregoing reasons, I respectfully concur.
No. 2020AP485.pdr

1

¶21 PATIENCE DRAKE ROGGENSACK, J. (concurring). The 

majority opinion concludes that, under the primary jurisdiction 

doctrine, the circuit court erroneously exercised its discretion

because Wisconsin Manufacturers and Commerce's (WMC)

unpromulgated rule challenge turns on a question of law, which

the circuit court should have decided. While I agree with the 

bottom line conclusion that the circuit court should have 

decided WMC's unpromulgated rule challenge, I part ways with the 

majority opinion's reasoning. The circuit court should have 

decided WMC's challenge to the Department of Revenue's (DOR) 

interpretation of Wis. Stat. § 70.111(27)(b) (2017-18) claiming 

it was an unpromulgated rule, because jurisdiction did not exist 

in the Tax Appeals Commission to decide whether DOR's response 

to WMC was an unpromulgated rule. Because the majority misses 

step one in analyzing a question of primary jurisdiction, i.e., 

whether the Tax Appeals Commission and the circuit court both 

had jurisdiction to decide whether DOR's letter-response to WMC 

was an unpromulgated rule, I respectfully concur. 

I. BACKGROUND1

¶22 In 2017, the Wisconsin Legislature enacted a new tax 

exemption for "machinery, tools, and patterns, not including 

such items used in manufacturing." 2017 Wis. Act 59, § 997j 

(codified at Wis. Stat. § 70.111(27)(b) (2017-18)). Seeking a 

determination on how the new exemption would be applied, WMC 

sent a written inquiry to the DOR. WMC's inquiry expressed its 

 

1 The majority opinion capably sets out the background 

underlying this controversy. Therefore, I describe here only 

that which is necessary to understand my writing below.
No. 2020AP485.pdr

2

view that "machinery, patterns and tools that are not used in 

manufacturing" are exempt even if that property is "located on 

manufacturing property." WMC asked for DOR's interpretation of 

§ 70.111(27)(b) under those proposed facts. In a letterresponse, DOR disagreed with WMC's interpretation and said that 

the new exemption does not apply to manufacturers, even though 

the property is not used in manufacturing. 

¶23 WMC then filed a declaratory judgment action in 

circuit court pursuant to Wis. Stat. § 227.40 asserting 

that: (1) DOR's response to WMC was an unpromulgated rule and 

is therefore invalid; (2) DOR's response is invalid because it 

is inconsistent with the text of the new exemption; and 

(3) DOR's response violates various provisions of the Wisconsin 

and United States Constitutions. 

¶24 Following cross-motions for summary judgment, the 

circuit court dismissed WMC's claims under the primary 

jurisdiction doctrine. The circuit court observed that the Tax 

Appeals Commission was then "considering how to interpret and 

apply Wis. Stat. § 70.111(27) to property owned and used by the 

manufacturers" and was "well suited to use its expertise in 

determining this issue." Accordingly, it declined to exercise 

jurisdiction over WMC's claims.

¶25 WMC appealed the court's dismissal of only the 

unpromulgated rule claim and the constitutional claims. The 

court of appeals affirmed. Wis. Prop. Tax Consultants, Inc. v. 

DOR, 2021 WI App 47, 398 Wis. 2d 654, 963 N.W.2d 103. WMC then 
No. 2020AP485.pdr

3

sought our review of only the unpromulgated rule claim. We 

granted review. 

II. DISCUSSION

A. Standard of Review 

¶26 We review whether the circuit court erroneously 

exercised its discretion in not exercising its jurisdiction. 

McEwen v. Pierce Cnty., 90 Wis. 2d 256, 268, 279 N.W.2d 469 

(1979). In so doing, we review, as a matter of law, whether the 

Tax Appeals Commission had jurisdiction to resolve the dispute. 

Id. We further interpret and apply Wis. Stat. § 73.01(4) and 

Wis. Stat. § 227.40. We independently interpret and apply 

statutes as questions of law. Townsend v. ChartSwap, LLC, 2021 

WI 86, ¶11, 399 Wis. 2d 599, 967 N.W.2d 21. 

B. Primary Jurisdiction

¶27 When both a court and an administrative agency have 

jurisdiction over resolution of issues in a dispute, courts may 

look to the primary jurisdiction doctrine to determine who 

should decide the case first. City of Brookfield v. Milwaukee 

Metro. Sewerage Dist., 171 Wis. 2d 400, 420, 491 N.W.2d 484 

(1992). As we have concluded in the past, the doctrine is not 

one of "power[,] but comity." Wis. Collectors Ass'n, Inc. v. 

Thorp Fin. Corp., 32 Wis. 2d 36, 44, 145 N.W.2d 33 (1966). "The 

purpose of the primary-jurisdiction rule is to promote proper 

relationships between the courts and administrative agencies." 

Id. However, the question of primary jurisdiction does not 

arise until there first has been a conclusion that both the 

agency and the court have jurisdiction over the dispute. Beal 
No. 2020AP485.pdr

4

v. First Fed. Sav. & Loan Ass'n of Madison, 90 Wis. 2d 171, 197, 

279 N.W.2d 693 (1979). If the administrative agency does not 

have jurisdiction to decide the question presented, the primary 

jurisdiction doctrine is not implicated. See Ass'n of Career 

Emps. v. Klauser, 195 Wis. 2d 602, 612-13, 536 N.W.2d 478 (Ct. 

App. 1995) (explaining that primary jurisdiction assumes 

jurisdiction in both a court and an agency, and if that does not 

exist, primary jurisdiction is not at issue).

¶28 Article VII, Section 8 of the Wisconsin Constitution 

provides that: "[e]xcept as otherwise provided by law, the 

circuit court shall have original jurisdiction in all matters 

civil and criminal within this state." Accordingly, we have 

stated that "in Wisconsin, 'no circuit court is without subject

matter jurisdiction to entertain actions [on state law 

claims].'" Vill. of Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 

Wis. 2d 76, 681 N.W.2d 190 (quoting Mueller v. Brunn, 105 

Wis. 2d 171, 176, 313 N.W.2d 790 (1982)). 

¶29 Furthermore, Wis. Stat. § 227.40(1) states that "the 

exclusive means of judicial review of the validity of a rule or 

guidance document shall be an action for declaratory judgment as 

to the validity of the rule or guidance document brought in the 

circuit court for the county where the party asserting the 

invalidity of the rule . . . resides or has its principal place 

of business . . . ." § 227.40(1).

¶30 The Tax Appeals Commission also was granted 

jurisdiction by the legislature in Wis. Stat. § 73.01(4)(a), 

which states that,
No. 2020AP485.pdr

5

Subject to the provisions for judicial review in 

s. 73.015, the commission shall be the final authority 

for the hearing and determination of all questions of 

law and fact arising under sub. (5) and s. 72.86(4), 

1985 stats., and ss. 70.38(4)(a), 70.397, 70.64, 

and 70.995(8), s. 76.38(12)(a), 1993 stats., 

ss. 76.39(4)(c), 76.48(6), 77.26(3), 77.59(5m) and 

(6)(b), 78.01, 78.22, 78.40, 78.555, 139.02, 139.03, 

139.06, 139.31, 139.315, 139.33, 139.76, 139.78, 

177.1103, 177.1206(3), 341.405, and 341.45, subch. XIV 

of ch. 71, and subch. VII of ch. 77.

§ 73.01(4)(a). No administrative remedy was provided therein to 

the Tax Appeals Commission to review the validity of a DOR rule. 

Generally, when a statute sets forth a procedure by which to 

provide review of administrative agency decisions and states 

that the procedure is the final review, other forms of remedy 

are not available in addition to the listed procedure. Nodell 

Inv. Corp. v. City of Glendale, 78 Wis. 2d 416, 422, 254 N.W.2d 

310 (1977). 

¶31 If an agency is interpreting its own declaration that 

is being characterized as a rule made in contravention of its 

own rule-making procedures, the agency has jurisdiction to 

review that claim. County of Dane v. DHSS, 79 Wis. 2d 323, 331-

33, 255 N.W.2d 539 (1977). However, here, it is DOR who has 

responded to WMC in a way that is challenged as a DOR 

unpromulgated rule, and it is the Tax Appeals Commission who is 

asked to decide whether DOR followed proper rule-making 

procedures in making its letter-response to WMC. 

¶32 In order for Tax Appeals Commission to decide whether 

DOR followed proper rule-making procedures in its letterresponse to WMC, Tax Appeals Commission must have the authority 

to say, "yes," DOR did or "no," DOR didn't. 
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¶33 Administrative agencies are creations of the 

legislature and have only those powers expressly given to them 

by the legislature. Heritage Credit Union v. Office of Credit 

Unions, 2002 WI App 213, ¶12, 247 Wis. 2d 589, 634 N.W.2d 593. 

No authority to judge whether DOR followed proper rule-making 

procedures in issuing its letter-response is granted to the Tax 

Appeals Commission by Wis. Stat. § 73.01(4)(a). Further, no one 

has provided us with a statute or other grant of authority that 

gives the Tax Appeals Commission the power to decide whether DOR 

properly exercised its rule-making authority. I have searched 

and searched, but I have found none. Without such a grant of 

authority from the legislature, there is no jurisdiction in the 

Tax Appeals Commission to decide the dispute at issue here. 

¶34 Under Wis. Stat. § 227.40(1), only the circuit court 

had jurisdiction to decide whether DOR's letter-response to WMC 

was a rule that was created without following required rulemaking procedures. Accordingly, I conclude that, because the 

Tax Appeals Commission had no jurisdiction over WMC's 

unpromulgated rule claim, reliance on the primary jurisdiction 

doctrine to decide this case is inappropriate. Only the circuit 

court had the power to review WMC's unpromulgated rule claim 

against DOR. 

III. CONCLUSION

¶35 It is DOR who has responded to WMC in a way that is 

challenged by WMC as a DOR rule, and it is the Tax Appeals 

Commission who is asked to decide whether DOR followed proper 

rule-making procedures in making its response to WMC. The 
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circuit court should have decided WMC's challenge to the DOR's

interpretation of Wis. Stat. § 70.111(27)(b) (2017-18) claiming 

it was an unpromulgated rule, because jurisdiction did not exist 

in the Tax Appeals Commission to decide whether DOR's response 

to WMC was an unpromulgated rule. Because the majority misses 

step one in analyzing a question of primary jurisdiction, i.e., 

whether the Tax Appeals Commission and the circuit court both 

had jurisdiction to decide whether DOR's letter-response to WMC 

was an unpromulgated rule, I respectfully concur.

¶36 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this concurrence.
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