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    Wisconsin Lawyer
    May 01, 2011

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 5, May 2011


    Environmental Law

    Public Hearings – Administrative Review

    Andersen v. Department of Natural Resources, 2011 WI 19 (filed 23 March 2011)

    The petitioners asked the Department of Natural Resources (DNR) to review a permit governing discharges from the Fort James Broadway Mill in Green Bay. They contended that the permit did not comply with various federal statutes and regulations governing pollution. The petitioners also requested a hearing under Wis. Stat. section 283.63(1)(b). The DNR denied the hearing request, concluding that challenges made under section 283.63 must be based on Wisconsin law. The circuit court affirmed. The court of appeals, however, reversed in a published decision. See 2010 WI App 64.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Ziegler. “The issue in this case is whether Wis. Stat. § 283.63 requires the DNR to hold a public hearing on CWAC’s [Clean Water Action Council of Northeastern Wisconsin, Inc.’s] petition for review of the permit reissued to Fort James’ Broadway Mill when the premise of CWAC’s petition is that the permit fails to comply with basic requirements of the Clean Water Act and federal regulations promulgated thereunder” (¶ 7).

    “We conclude that the DNR’s interpretation and application of Wis. Stat. § 283.31(3)(d)2. is entitled to great weight deference. The DNR meets all four elements of the great weight standard. First, the legislature has expressly charged the DNR with the duty of administering the WPDES [Wisconsin Pollutant Discharge Elimination System] permit program, the provisions of which are comprised in chapter 283. Wis. Stat. § 283.001(2). Second, the DNR’s interpretation and application of chapter 283 (and its predecessor, Wis. Stat. ch. 147) is one of long-standing: the DNR has administered the WPDES permit program since the EPA approved the state program in 1974. [citation omitted] Third, the DNR employed its expertise or specialized knowledge in forming its statutory interpretation and application to the permit reissued to Fort James’ Broadway Mill. The DNR considered the particular and highly technical comments submitted by the three interested parties, including Midwest Environmental Advocates, and provided specific, detailed responses. Fourth, the DNR’s interpretation will provide uniformity and consistency in the application of chapter 283. There are currently 1,066 WPDES wastewater permit holders: 680 municipal wastewater permittees and 386 industrial wastewater permittees”
    (¶ 31).

    The holding, said the court, did not leave the petitioners without a remedy. “We merely foreclose Wis. Stat. § 283.63 as one avenue. If CWAC is entitled to a remedy, the remedy rests with the EPA” (¶ 65).

    Chief Justice Abrahamson dissented, joined by Justice Bradley. “First, the majority misinterprets the balance created between federal oversight and state application and enforcement of the Clean Water Act. Second, by inverting the federal/state balance, the majority has left the petitioners in the present case, as well as future challengers, with no effective forum in which to express their concerns that terms in a state-issued permit do not comply with federal law” (¶ 70). Specifically, the EPA’s “discretionary decision not to object to permit terms cannot effectively be challenged in federal court” (¶ 80).

    Municipal Law

    Certiorari Review of Municipal Decisions

    Ottman v. Town of Primrose, 2011 WI 18 (filed 22 March 2011)

    A town board denied the Ottmans’ application to build a residential driveway on property zoned for agricultural use. The town said the Ottmans failed to show that the pertinent property produced at least $6,000 in income, as required by its land-use plan. The circuit court dismissed the Ottmans’ petition for certiorari review of the town’s decision. In an unpublished opinion, the court of appeals affirmed.

    The supreme court affirmed the court of appeals in a unanimous opinion, written by Justice Bradley, that analyzes in depth certiorari review of decisions by municipalities. The supreme court found no persuasive reason to alter the scope of statutory certiorari review, which nonetheless “permits courts to determine whether the Board proceeded on a correct theory of law” (¶ 46). Here, the Ottmans’ quarrel was more with the presumption of correctness and the deference extended to the town’s decision (see ¶¶ 46-47). A municipality’s interpretation of a statewide standard is entitled to no deference, lest one locality acquires “disproportionate authority to influence state standards” (¶ 59).

    “In other circumstances, however, the language of the municipality’s ordinance appears to be unique and does not parrot a state statute but rather the language was drafted by the municipality in an effort to address a local concern. In such a case, the municipality may be uniquely poised to determine what that ordinance means. Then, applying a presumption of correctness, we will defer to the municipality’s interpretation if it is reasonable” (¶ 60). “A municipality’s interpretation of its own ordinance is unreasonable, for example, if it is contrary to law, if it is clearly contrary to the intent, history, or purpose of the ordinance, or if it is without a rational basis. An interpretation that directly contravenes the words of the ordinance is also unreasonable” (¶ 62) (citation omitted).

    The supreme court specifically declined to “graft” the framework for reviewing administrative agency determinations to its review of municipal decisions (see ¶ 64).

    Turning to the record before it, the court found that the town’s interpretation of the ordinance did not contravene its plain meaning (see ¶ 72). Moreover, the town reasonably applied that meaning to the evidence presented at the hearing (see ¶ 76).


    Property Taxes – Dispute Procedures – Constitutionality of 2007 Wisconsin Act 86

    Metropolitan Assocs. v. City of Milwaukee, 2011 WI 20 (filed 25 March 2011)

    This case concerns procedures for disputing municipal property tax assessments. Once a taxpayer receives his or her annual property tax assessment, the taxpayer may challenge that assessment before the municipal board of review. If the taxpayer remains unsatisfied after the local board of review makes its determination, he or she may seek review of that decision in the circuit court.

    Before 2008, a taxpayer could choose between two types of review in the circuit court: common-law certiorari review or statutory de novo review pursuant to Wis. Stat. section 74.37. Common-law certiorari review is a limited review of the record made before the board of review, whereas de novo review is an entirely independent circuit court action in which the circuit court creates its own record and gives no deference to the board of review’s determination.

    “In 2008, the legislature passed 2007 Wis. Act 86 (‘Act 86’) which allows municipalities to pass an ordinance opting out of de novo review. Taxpayers in these ‘opt out’ municipalities are restricted to a new form of circuit court review referred to as ‘enhanced certiorari review.’ This enhanced certiorari review is broader in scope than traditional certiorari review but narrower in scope than de novo review. Act 86 also requires opt out municipalities to grant their taxpayers additional rights during their initial Board of Review hearing” (¶ 3). These include a more detailed notice of a changed assessment, the right to additional time to prepare for the board of review hearing, and comparatively broader discovery rights (see ¶ 26).

    The Milwaukee County Circuit Court found that Act 86 unconstitutionally denied taxpayers residing in opt-out municipalities equal protection of the laws by depriving those taxpayers of access to de novo review without a rational basis for doing so. In a published decision, the court of appeals reversed. It held that the treatment taxpayers received in opt-out municipalities under Act 86 was not significantly different than the treatment taxpayers received in all other municipalities. See 2009 WI App 157.

    In a majority decision authored by Justice Gableman, the supreme court reversed the court of appeals. The supreme court concluded that the treatment taxpayers in opt-out municipalities receive under Act 86 is significantly different than the treatment all other taxpayers receive (see ¶ 5). For example, these taxpayers do not have the benefit of traditional de novo review in which a circuit court makes its own determination without regard to the board of review’s record or decision and in which they have access to traditional civil discovery rules (see ¶ 32).

    Instead, they are limited to enhanced certiorari review, which “fails to offer the protections of a court trial. Specifically, the enhanced certiorari procedure significantly restricts the taxpayer’s ability to bring additional evidence before the circuit court when compared to de novo review. In de novo review, the challenging taxpayer can seek the introduction of any admissible evidence in the circuit court. Wis. Stat. § 904.02. Under the enhanced certiorari procedure created by Act 86, however, the circuit court may allow the taxpayer to introduce additional evidence only if the taxpayer first rebuts the presumption that the board’s valuation is correct. See Wis. Stat. § 70.47(7)(c), (16)(a). If the taxpayer successfully rebuts the presumption that the Board’s valuation is correct, then, and only then, may the circuit court consider (1) evidence that was not available at the time of the Board of Review hearing, (2) evidence that the Board of Review refused to consider, or (3) evidence that the court otherwise determines should be considered in order to determine the correct assessment. Wis. Stat. § 70.47(13)” (¶ 44).

    The majority further concluded that the difference in treatment between taxpayers in opt-out municipalities and those in all other municipalities lacks a rational basis. Among other things, the court “[saw] nothing inherently different about taxpayers in opt out municipalities that would justify restricting the manner in which taxpayers located in those municipalities may challenge their assessments” (¶ 68).

    In sum, the court held that the provisions of Act 86 that create the enhanced board of review procedure and the enhanced certiorari procedure are unconstitutional (see ¶ 79); it further held that these provisions are severable from the remaining portions of the Act (see ¶ 77). As for the impact of this decision, the court stated that “[i]t is important to note that our holding today simply returns the Board of Review procedures in all counties to the procedures which existed before Act 86 was approved. It also returns the procedure for challenging Board of Review assessment determinations to the procedure which existed before Act 86 was approved – allowing all taxpayers the choice between traditional certiorari review and de novo review” (¶ 80).

    Chief Justice Abrahamson filed a dissenting opinion that was joined in by Justice Bradley and Justice Crooks.


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