The League's League-EL
December 21, 2022
Taxes must be paid before they can be challenged as unlawful under Wis. Stat. § 74.35

In a unanimous decision, the Wisconsin Supreme Court held that a taxpayer filing a claim for recovery of unlawful taxes under Wis. Stat. § 74.35 must pay the challenged tax prior to filing the claim or the claim is procedurally deficient.

After the City of Milwaukee notified Saint John’s Communities, Inc. that it lost its tax-exempt status for 2019, Saint John’s filed a claim for recovery of unlawful taxes under Wis. Stat. § 74.35. However, it filed the claim before the tax was actually levied. After the tax was levied in November 2019, Saint John’s filed a second claim under § 74.35 on December 5, 2019, but it did not begin paying that tax bill until January 2020. The circuit court denied the city’s motion to dismiss Saint John’s claim and ordered a refund of the 2019 taxes with interest, but the court of appeals reversed, concluding that Saint John’s § 74.35 claim was procedurally deficient because Saint John’s did not first pay the tax before filing its claim. The Supreme Court agreed and affirmed the court of appeals’ decision.

The Supreme Court held that the plain language of Wis. Stat. § 74.35 requires a taxpayer to pay the challenged tax prior to filing a claim to recover unlawful taxes against a taxation district. The statutory text states that a person must (1) be aggrieved by the levy and collection of an unlawful tax, and (2) if aggrieved, may file a claim to recover the unlawful tax. The Court noted that one is not aggrieved by the collection of something that wasn’t collected and cannot recover something that was never lost.

School District Improperly Denied Request for Parent Email List Under Public Records Law

Gierl v. Mequon-Thiensville School Dist., 2021AP2190 (Ct. App. Dec. 7, 2022) (publication recommended).

The Wisconsin Court of Appeals agreed with a circuit court judge’s decision that a school district improperly denied, under the common law balancing test, a public records request for a parent email listserv that the school district used not only to communicate with parents about things like bus schedules, school closures, and enrollment reminders, but also to promote presentations and discussions about matters of community interest like race and privilege.

Gierl requested a copy of the staff and parent e-mail list used by the Mequon-Thiensville School District (District) to invite parents to participate in a webinar on the topic of “privilege and race.” The District disclosed staff emails but denied disclosure of the parent emails under the common law balancing test which requires the records custodian to weigh public interests favoring nondisclosure against the strong public interest in disclosure. In concluding that the balancing test favored nondisclosure, the District asserted, among other things, that parent e-mail addresses do not relate to the “affairs of government and the official acts of those officers and employees who represent them.” The courts disagreed noting that the District, a government entity, used government resources to collect e-mail addresses of district parents and used those e-mail addresses to “promote and advance selected matters of interest to District personnel.”  The courts found the District’s assertion that release of the record would have a chilling effect on parents’ willingness to provide their e-mail addresses to the District and would stifle District-parent communications to be speculative. There was nothing in the judicial record to support that assertion and there was evidence that the District had shared the e-mail list with a former mayor years ago without any chilling effect.

The courts also were not sympathetic to the District’s expressed concern that the requester’s purpose in requesting the e-mails addresses was to “SPAM [the parents] with his political ideology.” The court of appeals said “the District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular ‘community outreach’ issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints.”  The court responded that “the balancing test does not tolerate utilizing taxpayer resources for an ideological or political monopoly.” Id. ¶14.

In the curtilage of a home, officers can do no more than the average citizen without a warrant

State v. Wilson, 2022 WI 77.

In a unanimous decision, the Wisconsin Supreme Court found that officers violated the Fourth Amendment when they entered the curtilage (the area immediately surrounding the home) of Wilson’s home without a warrant and no warrant exception applied under the facts of the case.

Police responded to a possible OWI call of an erratic driver in orange shoes who had finally parked and entered his backyard. When police arrived on scene, they suspected a possible OWI or burglary situation because the car was running and the backyard gate was open. The backyard was completely fenced and the opened gate was blocked by a trash can. The officers took time to verify the information they were given but did not actively pursue the suspect. They did not approach the front door to knock, but instead opted to enter the backyard through the obstructed, but open gate. Once inside they knocked on the detached garage door finding Wilson, who matched the description. Wilson had slurred speech and stumbled as he walked to the car with the officers. Wilson was subsequently arrested. In court, Wilson moved to suppress all evidence obtained after the officers entered the curtilage of his home. His motion was denied in the circuit court under the theory of a “hot pursuit” and at the court of appeals under a theory of “knock and talk.”

The Supreme Court found that neither of these theories was justified given the facts of the case, and that the motion to suppress should be granted and the conviction vacated. First, the circuit court’s theory of a “hot pursuit” failed because there was no “immediate or continuous pursuit of [a suspect] from the scene of a crime.” Second, the court of appeals’ “knock and talk” theory failed because the officers did not have an implicit license to enter the backyard of the home through the curtilage. This is a fact-specific analysis. Here, since there was no signage suggesting an alternative route, no reason to believe a knock on the front door would go unanswered, and no exigent circumstances, there was no implicit license to enter. As such, Wilson’s Fourth Amendment rights were violated when police entered the curtilage of his home without a warrant.

Reasonable suspicion is a low threshold but not a dragnet

State v. Richey, 2022 WI 106.

In Richey, the Wisconsin Supreme Court held that a Village of Weston police officer violated the Fourth Amendment when stopping a motorcyclist because the officer’s reasons for conducting the stop were not sufficiently particularized to provide reasonable suspicion that the stopped individual was engaged in wrongdoing. The stop occurred after the officer heard a county deputy radio for officers in the area to be on the lookout for a Harley Davidson motorcycle driving erratically and speeding down a particular street close to the officer’s location. The deputy offered no additional details. Five minutes later, the officer spotted a Harley Davidson motorcycle close to the originally reported location. The officer followed the driver for several blocks without observing erratic driving behavior but, noting that traffic was light and few motorcycles were on the road that time of year, pulled Richey over believing it was the same motorcyclist. During the stop, the officer developed sufficient evidence to arrest Richey on suspicion of his eighth OWI offense. Richey moved to suppress that evidence on the grounds that the officer lacked reasonable suspicion for the stop. The circuit court denied that motion. Richey appealed, and the court of appeals upheld the circuit court’s ruling. However, the Supreme Court disagreed with the circuit court and court of appeals. Writing for the majority, Justice Dallet noted that “a Harley driving in the same general area as the deputy’s report late in the evening and at a time of year when relatively few motorcycles were on the roads” were facts that were part of the totality of the circumstances but were “not enough to transform [the officer’s] hunch into particularized reasonable suspicion.” ¶ 12.

Wisconsin puts substance over form regarding oath or affirmation requirement

State v. Moeser, 2022 WI 76.

In Moeser, an officer requested a warrant to draw blood of a DUI suspect (Moeser). The officer was not formally placed under oath or affirmation when he signed the affidavit which accompanied the warrant application. In a 5-2 opinion, the Wisconsin Supreme Court held that the affidavit fulfilled the oath or affirmation requirement under both the U.S. and Wisconsin Constitutions, because the officer was sufficiently impressed with his obligation to tell the truth.
In determining that the officer’s affidavit was sufficient, the Court relied upon constitutional history, case law, and statutory language. There is no requirement that specific language or procedure be used in administering an oath or affirmation at any of these levels. That is because the purpose of the oath or affirmation requirement is “to impress upon the swearing individual an appropriate sense of obligation to tell the truth.” For that reason, we look to substance, not form. Here, the language of the affidavit, and the manner it was administered sufficiently impressed upon the swearing officer an obligation to tell the truth.

In a concurring opinion, Justices Hagedorn and Karofsky agreed the obligation to tell the truth was sufficiently impressed upon the swearing officer “to pass constitutional muster–but not by much.” They argued that in the future, law enforcement should ensure the procedures employed to obtain warrants are clear and consistent, as opposed to the “sloppy” example here.

Justices A.W. Bradley and Dallet dissented, contending that if the requirement was only to impress upon the individual an obligation to tell the truth, even that fails, since the first line of the affidavit–that it was “first duly sworn on oath”–was not true. Since the U.S. Constitution specifically prescribes a mechanism for obtaining warrants by oath or affirmation, no other mechanism suffices.

Livestock facility expansion? No problem–just make sure the application is credible

The Wisconsin court of appeals held that an applicant seeking a permit under the “Siting Law” must provide credible information showing that the proposed siting or expansion will comply with state standards. When an applicant fails to do so, a political subdivision may deny the permit.

Ledgeview Farms applied for a permit to expand its livestock facility in Brown County. The Town of Ledgeview denied the application largely due to the lack of credible information in the application. There were two main problems. First, the farm had an “extensive history” of past noncompliance with federal, state, and local laws. Second, the farm refused to allow the town to inspect its existing operation. The Livestock Facility Siting Review Board affirmed the decision on the sole ground that the town had the authority to deny the application on credibility grounds for the above reasons. The Board’s decision was affirmed by the circuit court, who noted that a permitting authority must have the ability to judge credibility. This appeal followed.

The court of appeals looked at the underlying statutory and administrative framework that made up the Livestock Facility Siting Law. The court noted that the first step in analyzing a siting law case is to determine whether the applicant complied with the application requirements. The application must contain “sufficient credible information to show… the proposed livestock facility meets … [the Livestock Facility Siting Standards].” A political subdivision may deny an application if there is clear and convincing evidence in the record that information in the application is not credible. Here, the applicant’s history of noncompliance and refusal to allow inspection provided the necessary evidence to deny the application.

Tribal-owned land no longer subject to taxation under the 1854 Treaty of La Pointe

On August 15, 2022, the U.S. Court of Appeals for the 7th Circuit held that the 1854 Treaty of La Pointe between the United States and bands of the Lake Superior Chippewa Indians of Wisconsin precludes the state from taxing all real property within the Bad River, Lac Courte Oreilles, Lac du Flambeau and Red Cliff reservations if that property is owned by the tribe or by one or more tribal members, regardless of any prior nontribal ownership. This reversed prior state practice, which allowed taxation of real property currently owned by a tribe or tribal member, if the property was previously owned by a nontribal member. The August decision became final on November 15th when no appeal was filed with the U.S. Supreme Court. The Wisconsin Department of Revenue recently updated Chapters 20 and 22 of the Wisconsin Property Assessment Manual (WPAM) and posted a set of questions and answers on implementing the court decision. Links to those are below:
·      The 2023 WPAM
·      The final information for implementing the Federal Court of Appeals decision

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