City of Waukesha v. City of Waukesha Board of Review

2020 WI APP 77
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1479

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN EX REL. CITY OF WAUKESHA,

PETITIONER-RESPONDENT,

V.

CITY OF WAUKESHA BOARD OF REVIEW,

RESPONDENT-APPELLANT,

SALEM UNITED METHODIST CHURCH,

INTERESTED PARTY-RESPONDENT.

Opinion Filed: November 18, 2020
Submitted on Briefs: June 11, 2020

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Eric J. Larson of Municipal Law & Litigation Group, SC,
Waukesha.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Brian E. Running, City Attorney, Waukesha.
2020 WI App 77

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 18, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1479 Cir. Ct. No. 2018CV1432

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN EX REL. CITY OF WAUKESHA,

PETITIONER-RESPONDENT,

V.

CITY OF WAUKESHA BOARD OF REVIEW,

RESPONDENT-APPELLANT,

SALEM UNITED METHODIST CHURCH,

INTERESTED PARTY-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL O. BOHREN, Judge. Reversed and cause remanded with directions.

Before Neubauer, C.J., Gundrum and Davis, JJ.
No. 2019AP1479

¶1 NEUBAUER, C.J. The issue is whether the City of Waukesha (City)
may appeal from a tax assessment determination by the City of Waukesha Board of
Review (Board), which rejected the City assessor’s evaluation, by commencing a
certiorari action under WIS. STAT. § 70.47(13) (2017-18).1

¶2 After the taxpayer, Salem United Methodist Church (Church)
received a favorable decision from the Board, the City sought statutory certiorari
review; the circuit court issued the writ; and the Board moved to quash the writ and
dismiss the case on the grounds that the City lacked authority to seek certiorari
review and, in any event, that the Board satisfied the certiorari standards. The court
denied the motion, reasoning that the City had authority to seek review under WIS.
STAT. § 70.47(13), and the Board’s decision failed to satisfy any of the certiorari
standards. We conclude that § 70.47(13) does not authorize the City to commence
a certiorari action.2 Because the statute did not empower the City to appeal from
the Board’s determination, we reverse and remand with directions to the circuit
court to quash the writ and dismiss the action.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Because of our conclusion that the circuit court erred in denying the motion to quash the
writ due to the City’s lack of authority to appeal, we do not reach the issue of whether the Board
satisfied the certiorari criteria on the merits, nor do we address the Board’s standing argument. See
Lake Delavan Prop. Co. v. City of Delavan, 2014 WI App 35, ¶14, 353 Wis. 2d 173, 844 N.W.2d
632 (when one appellate issue is dispositive, we need not address other issues).

2
No. 2019AP1479

BACKGROUND

The Church’s Objection to the Increased Tax Assessment

¶3 In proceedings before the Board, the parties differed as to the
valuation of the subject property. Because we determine that the City is not
statutorily authorized to appeal the Board’s decision, we need not address in detail
the merits of the valuation dispute. In 2017, the City assessed the property owned
by the Church at $51,900. In 2018, the assessor increased the amount to $642,200,
in part due to the Church apparently having received, and later admitting that it
accepted, an offer to sell for approximately $1,000,000. The assessor notified the
Church of the change, informed it that the open book session would be held the
following week, and explained that a Board hearing would be conducted. In
response, the Church filed an objection, providing its own amount of $108,655 and
the basis therefor. After a hearing at which the assessor testified and provided his
analysis, and the Church provided testimony and evidence, the Board ruled in favor
of the Church, accepting its valuation, slightly rounding up to $108,700.

The City’s Certiorari Appeal Seeking to Overturn the Board’s Decision

¶4 The City subsequently petitioned the circuit court under WIS. STAT.
§ 70.47(13) to issue a writ of certiorari, asserting the Board failed to afford the
assessor’s amount the required presumption of correctness, the Church failed to
overcome the presumption with sufficient evidence, and the Board’s decision was
arbitrary and unreasonable. The court issued the writ, ordering the writ’s return
within thirty days, along with the record of the Board’s proceedings, documents,
and files.

3
No. 2019AP1479

¶5 The Board moved to quash the writ on grounds, among others, for
failure to state a claim for relief that could be granted and for lack of standing,
capacity, legal authority to commence such an action, and jurisdiction. It also
moved to dismiss on the ground that the Church provided sufficient credible
evidence to overcome the presumed correctness of the assessor’s valuation, such
that the Board acted according to law and not in an arbitrary manner.

¶6 The circuit court denied both motions. It remanded the matter to the
Board for further proceedings in conformity with the court’s order. The Board
appeals.3

DISCUSSION

Standards of Review and Rules of Statutory Interpretation

¶7 The Board argues that WIS. STAT. § 70.47(13) does not authorize or
empower the City to take a certiorari appeal of the Board’s determination to the
circuit court. To resolve the question, we must undertake statutory interpretation,
which is a question of law we review de novo. See Hartford Citizens for
Responsible Gov’t v. City of Hartford Bd. of Zoning Appeals, 2008 WI App 107,
¶12, 313 Wis. 2d 431, 756 N.W.2d 454.

¶8 When interpreting WIS. STAT. § 70.47(13), the goal is to give effect
to the intent of the legislature, which we assume is expressed in the text of the
statute. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis.
2d 633, 681 N.W.2d 110. To this end, we give the language of the statute its
common, ordinary, and accepted meaning. Id., ¶45. We interpret statutory

3
The Church did not file its own brief, pointing out that its interests were well-represented
by the Board, that the Church supports the Board’s arguments, and it seeks the same relief.

4
No. 2019AP1479

language “in the context in which it is used; not in isolation but as part of a whole;
in relation to the language of surrounding or closely-related statutes,” and we
interpret it reasonably to avoid absurd or unreasonable results. Id., ¶46. We also
consider the scope, context, and purpose of the statute insofar as they are
ascertainable from the text and structure of the statute itself. Id., ¶48. If, employing
these principles, the meaning of the statute is plain, then we apply that language to
the facts at hand. See id., ¶¶45-50.

¶9 A statute is ambiguous when “it is capable of being understood by
reasonably well-informed persons in two or more senses.” Id., ¶47. However, a
statute is not rendered ambiguous merely because two parties disagree as to its
meaning. Id.

The Language of WIS. STAT. § 70.47(13)

¶10 We must decide whether WIS. STAT. § 70.47(13) authorized the City
to appeal the assessment ruling of the Board. We begin therefore with the statute
itself, but then also summarize the related statutory scheme regarding objections and
appeals of tax assessments. Section 70.47(13) provides in relevant part as follows:4

(13) CERTIORARI. Except as provided in [WIS. STAT.
§] 70.85, appeal from the determination of the board of
review shall be by an action for certiorari commenced within
90 days after the taxpayer receives the notice under sub. (12).

¶11 Because the above provision is based on and refers to a number of
preceding circumstances, as well as other statutory provisions, we will first provide

4
WISCONSIN STAT. § 70.47(13) was amended by 2017 Wis. Act 358. The parties do not
argue that the changes in any way affect our analysis in this case and we do not note any changes
that would matter to our analysis.

5
No. 2019AP1479

some background and context of the tax assessment and objection process and then
analyze the applicable statutes.

Wisconsin’s Overall Real Property Tax Assessment Process and Appeals to the
Board of Review

¶12 In general, Wisconsin taxes property using a means of assessment laid
out in WIS. STAT. ch. 70. See Metropolitan Assocs. v. City of Milwaukee, 2011 WI
20, ¶6, 332 Wis. 2d 85, 796 N.W.2d 717. Municipalities, such as the City here,
comprise the primary units for administering property taxes. See Nankin v. Village
of Shorewood, 2001 WI 92, ¶16, 245 Wis. 2d 86, 630 N.W.2d 141. For this purpose,
each municipality is designated as a “taxation district,” see WIS. STAT. § 70.045,
which must have a tax assessor, who can be appointed or elected,5 see WIS. STAT. §
70.05(1); Nankin, 245 Wis. 2d 86, ¶16.

¶13 Here, the City’s mayor appoints the assessor, whose term is indefinite
and whose appointment is subject to confirmation by the common council. See CITY
OF WAUKESHA, WIS., CODE ch. 2.01(2) (Sept. 21, 2015).

¶14 The assessor values all taxable property within the taxation district.
See WIS. STAT. §§ 70.05, 70.10, 70.29, 70.32(1)-(2). The assessor must notify in
writing an owner of a changed assessment at least fifteen days before the board
meeting, including the assessment amount, the time and place of the meeting, and
information about how to object. WIS. STAT. § 70.365. Once the assessor has
completed the assessment rolls, the municipal clerk publishes a notice to the public
of the open book session, at which time the rolls are made available for examination.
WIS. STAT. § 70.45. This session also offers a taxpayer an opportunity to speak with

5
WISCONSIN STAT. § 70.045 defines “taxation district,” in relevant part, as “a town,
village or city in which general property taxes are levied and collected.”

6
No. 2019AP1479

the assessor about an adjustment or correction (the assessor must be present for at
least two hours while the rolls are open). Id. The assessor is permitted to make
changes that are necessary, and materials are provided as to how to appeal an
assessment. Id.

¶15 Owners who then wish to dispute the assessment may file an objection
with the board of review. See WIS. STAT. §§ 70.07, 70.075, 70.47(7)(a). If, among
other things, an intent to object is properly filed at least two days before the first
scheduled board meeting and the taxpayer provides its own written estimate of the
land value, specifying the information used to calculate that estimate, the board will
consider the objection. Sec. 70.47(7), (8). At the hearing, the board will take under
oath testimony of any person relative to the assessment; the owner or owner’s
representative will testify first; the board may examine under oath any person it
believes has knowledge of the property’s value; the board may compel attendance
of witnesses and documents; the hearing shall be recorded; and the assessor shall
then provide specific information to the board supporting the assessor’s valuation.
Sec. 70.47(8).

¶16 “In all proceedings before the board the taxation district shall be a
party in interest to secure or sustain an equitable assessment of all the property in
the taxation district.” WIS. STAT. § 70.47(11). As noted, in this case, the “taxation
district” is the City.

¶17 The board will then make a determination as to whether the
assessment is correct. WIS. STAT. § 70.47(9)(a). The board shall presume that the
assessor’s valuation is correct, a presumption only rebutted “by a sufficient showing
by the objector” that it is incorrect. Sec. 70.47(8)(i); see also Thoma v. Village of
Slinger, 2018 WI 45, ¶19, 381 Wis. 2d 311, 912 N.W.2d 56.

7
No. 2019AP1479

¶18 If the assessment is too high or too low, the board will adjust it
accordingly. WIS. STAT. § 70.47(9)(a). The mission of the board is not to
independently estimate or reassess the objecting taxpayer’s assessment, but rather
to review, as a quasi-judicial body, the city assessor’s valuation by considering the
evidence presented and then to determine whether the assessor’s valuation is
correct. See id.; see also Nankin, 245 Wis. 2d 86, ¶18.

¶19 A city’s board could include the “mayor, clerk and such other officers,
other than assessors,” as provided by city ordinance; in villages, the president, clerk,
and such other officers, other than the assessor, as determined by ordinance; and in
towns, the town supervisors and clerk are on the board of review. See WIS. STAT.
§ 70.46(1).

¶20 Although a board’s membership does not usually require any special
training or experience, see WIS. STAT. § 70.46(1); Nankin, 245 Wis. 2d 86, ¶31, in
this case, the City specifically addresses the Board’s membership and provides that
the Mayor appoints one member each year with common council approval:

(1) MEMBERS. (Am. #18-04) The Board of Review shall
be composed of 5 residents of the City, none of whom shall
occupy any public office or be publicly employed. The
Board shall consist of a realtor, attorney, owner of a
commercial property and two homeowners.…

(2) APPOINTMENT. One member shall be appointed
annually by the Mayor, subject to the approval of the
[Common] Council, and shall hold office for 5 years until
his [or her] successor is appointed and qualified.

CITY OF WAUKESHA, WIS., CODE ch. 3.03(1), (2) (Aug. 21, 2008).

¶21 As part of this overview, and before we directly examine WIS. STAT.
§ 70.47(13), one more item specifically referenced by the certiorari subsection must

8
No. 2019AP1479

be noted. Section 70.47(12) explains how notice of the Board’s decision is
provided. It states as follows:

(12) NOTICE OF DECISION. Prior to final adjournment, the
board of review shall provide the objector, or the appropriate
party under sub. (10) [a subsection no party asserts is
relevant here], notice by personal delivery or by mail, return
receipt required, of the amount of the assessment as finalized
by the board and an explanation of appeal rights and
procedures under sub. (13) and [WIS. STAT. §§] 70.85, 74.35
and 74.37. Upon delivering or mailing the notice under this
subsection, the clerk of the board of review shall prepare an
affidavit specifying the date when that notice was delivered
or mailed.

Sec. 70.47(12). This provision essentially provides that the board shall notify the
taxpayer through reliable means of its decision, with an explanation of appellate
rights and procedures. The statute requires notice to no other person. See id.

WISCONSIN STAT. § 70.47(13) Does Not Authorize the City to Appeal its Board’s
Decision

¶22 We conclude that, after examining the language of WIS. STAT.
§ 70.47(13), considering the statutory scheme and purpose as a whole, and
employing the other above-noted rules of statutory interpretation, § 70.47(13) is
clear and did not authorize the City’s certiorari appeal of its Board’s determination
to the circuit court.

¶23 To start, we repeat the most pertinent language of WIS. STAT.
§ 70.47(13): “[A]ppeal from the determination of the board of review shall be by
an action for certiorari commenced within 90 days after the taxpayer receives the
notice under sub. (12).” The Board emphasizes that the phrase “after the taxpayer
receives notice” of the Board’s determination evinces a legislative intent that such
an appeal was meant only for the taxpayer. Although we do not place as much
weight on this wording, standing alone, as the Board does, the Board has a point.

9
No. 2019AP1479

After all, the notice is the official document constituting the Board’s decision
regarding the taxpayer’s objection, akin to a final judgment for purposes of an
appeal to this court, see WIS. STAT. § 808.03(1), and the notice is being provided
within the context of, and with instructions for, appealing to the circuit court.

¶24 The City argues that WIS. STAT. § 70.47(13) simply explains that an
appeal of the Board’s determination should be taken via a certiorari action, and it
does not state that those appellate rights belong to only one party, the taxpayer. It
is true that the subsection does not expressly state that “only” the taxpayer, or words
to that effect, may take an appeal. However, the statute does identify only one
party—the taxpayer.

¶25 Further bolstering the Board’s argument is the reference to WIS. STAT.
§ 70.47(12). Subsection (12) states that (1) the taxpayer is the only person or entity
to receive notice of the Board’s decision, (2) the taxpayer is contemporaneously
provided with an explanation of appellate rights and procedures, and (3) receipt by
the taxpayer of the Board’s determination and its date is of such import that the
notice must either be personally delivered or mailed with return receipt required,
and, once the notice has been given, the Board’s clerk prepares an affidavit
specifying that notice was given and the date thereof. Again, no other entity,
including the City, is provided notice of any sort.

¶26 Moreover, the certiorari appeal provision identifies when the specific
time for appeal is triggered: “90 days after the taxpayer receives notice” of the
Board’s determination. WIS. STAT. § 70.47(13). Countless procedural legal and,
specifically, appellate rights and obligations entail and often strictly mandate exact
timelines and deadlines. See generally WIS. STAT. chs. 808 and 809. The ninety-
day requirement in the certiorari appeal provision triggers when the appellate rights

10
No. 2019AP1479

begin and then naturally determines the date those rights expire. So, the time that
an appeal may be commenced and the time by which an appeal is time-barred turn
on the date the taxpayer—and only the taxpayer—receives notice.

¶27 The City asserts that the ninety days merely sets the time for an appeal
and does not establish the rights of appeal and who may take one. We agree that
the time limit does not establish who may take an appeal, but, as explained above,
because the taxpayer is the only person statutorily required to receive the notice and
the date of that receipt sets the appeal clock ticking, it strongly suggests that the
certiorari appeal provision was intended only for the benefit of an aggrieved
taxpayer.

¶28 The City responds that, while not receiving official notice of the
Board’s determination under the statute, it is “ridiculous” that the City would
somehow remain unaware of the Board’s determination, noting that the assessor
would have been at the proceedings and that the Board’s determination would have
to be reported to the City’s treasurer. That may all be true. But the appeal time
starts not at the Board hearing and when the City treasurer learns of it, but rather
when the taxpayer receives notice.

¶29 Moreover, we are tasked here with statutory interpretation, and the
statutory provisions spell out very clearly that the Board must only ensure that the
taxpayer receive the Board’s decision and that the appeal time begins to run upon
the taxpayer’s receipt. It would be uncommon, oddly random, and potentially vague
for the legislature, after establishing a comprehensive statutory taxation and
assessment scheme, to leave a party that allegedly has a right to appeal (e.g., the
City) to learn of that right by an unspecified, unexpressed, and indirect means. For
good public policy reasons, filing and deadline periods are typically express, direct,

11
No. 2019AP1479

and precise, and then strictly enforced. Cf., State v. Sorenson, 2000 WI 43, ¶16,
234 Wis. 2d 648, 611 N.W.2d 240 (“The timely filing of a notice of appeal is
necessary to give the court of appeals subject matter jurisdiction over an appeal. If
a party fails to comply with the statutory requirements for filing a timely notice of
appeal, the court of appeals lacks jurisdiction, and the court must dismiss the appeal
as defective.” (citations omitted)).

Contrary to the City’s Argument, the Legislature is not Required to Permit the City
to Use the Statutory Certiorari Appeal Process

¶30 The City argues that it is only logical to allow the City to appeal its
Board’s determination because a certiorari review is meant to ensure that
administrative bodies use and properly apply the pertinent rules, specifically here
the rule that the assessor’s valuation is presumed correct. As an indication of
legislative intent in favor of its point, the City emphasizes WIS. STAT. § 70.47(11),
which makes the City, as the taxation district, a “party in interest.” The provision
reads in full: “(11) PARTIES. In all proceedings before the board the taxation
district shall be a party in interest to secure or sustain an equitable assessment of all
the property in the taxation district.” Id. If the City is not allowed to appeal, as a
party in interest, a determination by the Board that resulted from its failure to follow
the standards and rules, particularly here the presumption of a correct assessment,
then there will be no one to enforce the standard and rules, and there is therefore no
public policy reason to bar the City’s appeal. We reject the argument.

¶31 Certiorari is generally a means by which a court may examine the
validity of a decision made by a municipality, an administrative agency, or an
inferior tribunal. See Ottman v. Town of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d
3, 796 N.W.2d 411. The City does not cite to any case law, however, holding that
when the legislature undertakes to draft its own certiorari appeal process, and taking

12
No. 2019AP1479

into account an already highly evolved, comprehensive statutory scheme, it is
required to follow any particular criteria or include certain conditions. Nor does it
provide case law requiring, more specifically, that the legislature must confer appeal
right status on any particular person or group of persons (other than to avoid drafting
the statute, of course, in a way inconsistent with due process or other rights protected
by the federal and state constitutions; but the City makes no constitutional
argument).

¶32 The City’s reference to WIS. STAT. § 70.47(11), making the City a
“party in interest,” is not only unavailing, this subsection works against the City’s
arguments. First, it is in its own separate subsection. Neither the phrase “party in
interest” nor its subsec. (11) is found or cross-referenced in subsecs. (12) (the notice
of the Board’s determination) or (13) (the certiorari appeal). Thus, the City is not
referred to as a “party in interest” in subsecs. (12), such that it should receive official
notice of the Board’s determination, or (13), such that it should be permitted to take
a certiorari appeal after the taxpayer receives notice.6 Specifying the City as a party
in interest “before the board,” but not on appeal, implies the City is not a “party in
interest” elsewhere in this process. Wisconsin Citizens Concerned for Cranes &
Doves v. DNR, 2004 WI 40, ¶35, 270 Wis. 2d 318, 677 N.W.2d 612 (“[W]here a
statute governing one subject contains a given provision, the omission of that same
provision from a statute governing a related subject is evidence that a different
intention existed.”).

6
See, e.g., WIS. STAT. § 196.74 (“[T]he commission shall give notice to the parties in
interest of the filing of the complaint.”); WIS. STAT. § 195.31 (“[I]t shall be the duty of the
[commissioner’s] office to give notice to the party or parties in interest.”); WIS. STAT.
§ 111.07(2)(a) (the commission “shall mail a copy of such complaint to all other parties in
interest”); WIS. STAT. § 59.694 (6) (the board of adjustment sets a time for the hearing of the appeal
and “give[s] due notice to the parties in interest”).

13
No. 2019AP1479

¶33 Finally, WIS. STAT. § 70.47(11) states why the City is a “party in
interest”: “to secure or sustain an equitable assessment of all the property in the
taxation district.” Id. By its plain language, this provision allows the City to attend
any Board proceeding and, in the case of an assessment hearing, to ensure equitable
assessments for its taxpaying public at that stage. See id.

¶34 As for the City’s arguments that, if it is not allowed to appeal, then no
one can ensure that the Board acts according to law and keeps within its jurisdiction,
and no good public policy reasons exist to interpret the statute as the Board suggests,
they fail to persuade. These assertions are somewhat intertwined, so we will answer
them as a whole.

¶35 First, the legislature may have had good public policy reasons not to
permit the City to take such an appeal. In this regard, the legislature may have set
up the certiorari appeal provision for use only by the taxpayer because the City,
through its appointed assessor, and its appointed Board of Review, has more than
ample opportunity for input in the individual assessment process, as well as in
general the appointment process. Much of this has been noted above, but we
highlight a few items.

¶36 The assessment is initiated, investigated, determined and then
reviewed by City-appointed individuals. In this regard, the City Mayor chooses the
assessor with the approval of the common council, the assessor calculates the
valuation, is available to address and discuss the adjustment with the taxpayer, and
then he or she explains and defends it at the Board hearing. See CITY OF
WAUKESHA, WIS., CODE ch. 3.03(1), (2); WIS. STAT. § 70.47.

¶37 The City Mayor also selects each of the five Board members (one per
year) with approval of the common council. See CITY OF WAUKESHA, WIS., CODE

14
No. 2019AP1479

ch. 3.03(1), (2). The City also chose the desired backgrounds of each member: two
homeowners, a realtor, an attorney, and a commercial property owner. See id. The
statute permits a board of review to be made up of mayors, alderpersons,
supervisors, and clerks, depending on the municipality.

¶38 To object to an assessment, the taxpayer must jump through several
hoops, such as filing its objection within short deadlines, providing its own estimate
with supporting evidence, and presenting its case to the Board with the burden of
making a “sufficient showing” that the assessment is incorrect. The Board must
presume that the assessor’s amount is correct.

¶39 The foregoing factors plainly reveal a rational basis to disallow the
City from taking a certiorari appeal of a decision made by the Board it selects, funds,
and provides information to in considering the recommended assessment of the
City’s appointed assessor. In short, the City has input through its appointed assessor
(whose work enjoys a presumption of correctness), and in appointing the members
of the Board. To provide it with yet another avenue for input would be at the direct
expense of taxpayers, who would then be burdened with the litigation costs of an
appeal they do not seek, not to mention the unwanted delay and uncertainty.
Ultimately, it would undermine the streamlined process set forth in the statute that
allows taxpayers to challenge unfavorable assessments in a cost-effective and
efficient manner.

¶40 Moreover, had the legislature intended to allow the City to take a
certiorari appeal here, it could have said so. It clearly knows how, as it has done so
in other statutory schemes. In this regard, the legislature has granted certiorari
appeal rights in zoning cases to “[a]ny person or persons, jointly or severally
aggrieved by any decision of the board of appeals, or any taxpayer, or any officer,

15
No. 2019AP1479

department, board or bureau of the municipality.” WIS. STAT. § 62.23(7)(e)10.
Likewise, with regard to reviews of municipal administrative decisions, “[a]ny party
to a proceeding resulting in a final determination may seek review thereof by
certiorari within 30 days of receipt of the final determination.” WIS. STAT.
§ 68.13(1). The point is that the legislature, had it intended to permit the City the
right to certiorari review here, could have done so as it has in other statutory
schemes, by expanding the language or otherwise specifying those parties who are
authorized to take an appeal.7

¶41 Lastly, we also generally note that, upon reviewing the statutory
scheme, the case law8 and a specific guidance document prepared by the Wisconsin

7
If the City wants the right to appeal from the Board’s decision, the proper route to seek
creation of such a right is through the legislature. See State v. Pocian, 2012 WI App 58, ¶12, 341
Wis. 2d 380, 814 N.W.2d 894; Meriter Hosp., Inc. v. Dane Cnty., 2004 WI 145, ¶35, 277 Wis. 2d
1, 689 N.W.2d 627 (If a statute fails to cover a particular situation, and the omission should be
cured, the remedy lies with the legislature, not the courts.).
8
As but one example, the supreme court discussed the statutory avenues
available to the taxpayer as follows:

Chapter 70 of the Wisconsin Statutes establishes a
comprehensive procedure by which property owners may
challenge the valuation or the amount of property assessed for
taxation….

16
No. 2019AP1479

Department of Revenue, we have only seen discussions of the certiorari appeal
within the context of the taxpayer invoking it.9 See generally WISCONSIN
DEPARTMENT OF REVENUE, PROPERTY ASSESSMENT APPEAL GUIDE FOR
WISCONSIN REAL PROPERTY OWNERS (2020). The Department of Revenue has
general supervisory authority over the administration of the assessment and tax laws
of the state, over assessors, and boards of review in the performance of their duties.
WIS. STAT. § 73.03. This is not by itself conclusive evidence that only a taxpayer

The statutory scheme of [WIS. STAT.] chs. 70 and 74 also
provides a detailed method for taxpayers to appeal a decision of
the board of review. A property owner who files an objection with
the board of review under [WIS. STAT.] § 70.47(7) and who
disagrees with the board’s determination has three options for
appeal. The property owner may appeal the determination of the
board by an action for certiorari. See [WIS. STAT.] § 70.47(13).
In addition, the property owner may file a written complaint with
the department of revenue requesting that the department revalue
the property and adjust the assessment thereof. See [WIS. STAT.]
§ 70.85. In the alternative, the property owner may file a claim
against the taxation district for an excessive assessment to recover
any amount of property tax imposed as a result of the excessive
assessment. See [WIS. STAT.] § 74.37(2)(a).

Hermann v. Town of Delavan, 215 Wis. 2d 370, 379-80, 572 N.W.2d 855 (1998)
(emphasis added; footnotes omitted). Both parties acknowledge that there is no published decision
in which a municipality appealed its Board of Review’s determination. Neither party addresses
how an appeal by a municipality under WIS. STAT. § 70.47(13), would square with the other
avenues for a taxpayer to challenge the Board of Review’s determination, namely, a taxpayer
complaint with the department of review or a taxpayer claim in circuit court against the taxation
district. See §§ 70.85, 74.37.
9
“You [the taxpayer] must file an appeal with the circuit court within 90 days after receipt
of the determination notice (decision) from” the Board. WISCONSIN DEPARTMENT OF REVENUE,
PROPERTY ASSESSMENT APPEAL GUIDE FOR WISCONSIN REAL PROPERTY OWNERS 12 (2020).
“The following are the references to the appeals procedures contained in state law…. State law
([WIS. STAT. §] 70.47(13))—(Certiorari) provides for the property owner to appeal the [Board’s]
decision to the circuit court.” WISCONSIN DEPARTMENT OF REVENUE, PROPERTY ASSESSMENT
APPEAL GUIDE FOR WISCONSIN REAL PROPERTY OWNERS at 17.

2
No. 2019AP1479

may appeal, but it adds to the already countless factors weighing in favor of arriving
at that conclusion.10

¶42 For these reasons, we conclude the language of the statute is clear, and
reverse the circuit court’s denial of the Board’s motions and remand to the circuit
court with directions to quash the writ and dismiss the City’s certiorari action.

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

10
To be clear, we do not consider the statute ambiguous. Nonetheless, to the extent the
manual is considered extrinsic evidence available for review if the statute is considered ambiguous,
it only bolsters our conclusion that appeal rights on the part of the City were not intended.

2