2011 WI 20
Supreme Court of
Metropolitan Associates , a Wisconsin Limited Partnership, On behalf of itself and all other persons and entities who filed an objection to the 2008 assessment of any parcel of real or personal property in the City of Milwaukee,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 321
(Ct. App. 2009 – Published)
March 25, 2011
Submitted on Briefs:
October 7, 2010
Source of Appeal:
Jean W. DiMotto
ABRAHAMSON, C.J., BRADLEY and CROOKS, JJ. dissent (Opinion filed).
plaintiff-respondent-petitioner there were briefs by Alan Marcuvitz, Robert L.
Gordon, Andrea H. Roschke and Michael Best & Friedrich, LLP,
For the defendant-appellant
there were briefs by Grant F. Langley,
city attorney and Vincent D. Moschella,
deputy city attorney,
There was an amicus brief by
Maureen A. McGinnity, Foley & Lardner LLP,
2011 WI 20
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Metropolitan Associates, a Wisconsin Limited Partnership, on behalf of itself and all other persons and entities who filed an objection to the 2008 assessment of any parcel of real or personal property in the City of Milwaukee,
MAR 25, 2011
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a published decision of the court of appeals reversing the circuit court order granting summary judgment to Metropolitan Associates. Metropolitan Associates challenges the procedure taxpayers must follow in order to dispute municipal property tax assessments. After a taxpayer receives his or her annual property tax assessment, the taxpayer may challenge that assessment before the Board of Review for the municipality where the taxed property is located. If the taxpayer remains unsatisfied after the Board of Review makes its determination, the taxpayer may seek review of that decision in the circuit court.
¶2 Prior to 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. § 74.37. Common law certiorari review is a limited review of the record made before the Board of Review, while 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.
¶3 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.
2009, the circuit court for
¶5 We conclude that the treatment taxpayers in opt out municipalities receive under Act 86 is significantly different than the treatment all other taxpayers receive, and we conclude that this difference in treatment lacks a rational basis. Accordingly, we reverse the court of appeals and hold that all of Act 86’s modifications to Wis. Stat. §§ 70.47, 73.03, and 74.37 are unconstitutional.
¶6 Property in
Board of Review is a quasi-judicial body that hears evidence to adduce whether
an assessor’s valuation is correct. Nankin
v. Vill. Of Shorewood, 2001 WI 92, ¶18, 245
¶8 We begin with an overview of the two traditional methods of obtaining judicial review of a Board of Review’s decision available prior to the enactment of Act 86: certiorari review and de novo review. We then discuss how Wisconsin’s process for challenging assessment decisions changed significantly in both 2001 and 2008——in 2001 it changed because of our Nankin decision, and in 2008 it changed because of Act 86.
A. Certiorari Review and De Novo Review
¶9 Certiorari review existed prior to the enactment of Act 86
as a limited review in which the circuit court examined only the record made
before the Board of Review. Nankin,
¶10 De novo review, as it existed prior to the enactment of Act 86,
is a more substantial form of review than certiorari review. The circuit court applying de novo review may
receive evidence regardless of the record made before the Board of Review. Nankin, 245
B. 2001: Nankin Invalidates Population-Based Thresholds on De Novo Actions
to 2001, most property owners could obtain judicial review of a Board of
Review's decision by filing an action in the circuit court seeking either
certiorari review under Wis. Stat. § 70.47(13)
or de novo review under Wis. Stat. § 74.37. Prior
to 2001, however, property owners in counties with populations of 500,000 or
more could file for only certiorari review and did not have access to de novo
¶12 In 2001, we considered in Nankin v. Village of Shorewood
whether preventing taxpayers' access to de novo review solely based on the
population of the county in which the property was located unconstitutionally
denied those taxpayers equal protection of the laws. Nankin, 245
C. 2008 to Present: Legislature Allows Municipalities to Opt Out of De Novo Review
¶13 On March 13, 2008, seven years after our holding in Nankin,
the Wisconsin Legislature passed Act 86. 2007
municipality that passes an ordinance pursuant to Act 86 “opting out” of de
novo review must give their taxpayers greater rights in their Board of Review
proceedings than those taxpayers would receive if they lived in all other
¶15 These differences are further described in Part III of this opinion.
D. Metropolitan Associates Challenges Act 86's De Novo Review Limits
¶16 The City of Milwaukee
opted out of de novo review when its Common Council unanimously adopted an
ordinance conforming with § 70.47(16)(c),
which became law on April 30, 2008. On
July 15, 2008, Metropolitan Associates filed a class action lawsuit against
¶17 The circuit court orally granted summary judgment to Metropolitan Associates on January 20, 2009, memorialized in its written order dated February 9, 2009. It followed the same three-step analysis of Metropolitan Associates' equal protection claim as we did in Nankin. First, the circuit court found that Act 86 created a distinct classification of citizens——taxpayers residing in opt out municipalities. Second, it found that Act 86 treated this class significantly different than taxpayers in all other municipalities. Third, the circuit court found that no rational basis existed for the different treatment of taxpayers who own property in opt out municipalities. It concluded that Wis. Stat. § 74.37(4)(c) as amended by Act 86 and § 74.37(4)(d) as created by Act 86 violated equal protection, and enjoined their enforcement.
¶18 The court of appeals, also following the Nankin three-step
analysis, reversed the circuit court.
The court of appeals agreed with the circuit court that taxpayers in opt
out municipalities constituted a distinct classification of citizens. However, in contrast to the circuit court,
the court of appeals determined that Act 86's enhanced certiorari review
supplied taxpayers in opt out municipalities with "the functional
equivalent of a court trial." Metro.
Assocs. v. Milwaukee, 2009 WI App 157, ¶11, 321
¶19 Metropolitan Associates then petitioned this court for review, which we granted. We heard oral arguments in this case on April 12, 2010. The oral argument concerned Metropolitan Associates' equal protection challenge under our three-step analysis. Following this oral argument, we ordered the parties to file supplemental briefs on four distinct issues:
1. Does either of the two procedures——de novo actions under Wis. Stat. § 74.37 and enhanced certiorari actions under Wis. Stat. § 70.47(13)——carry with it a right to a jury trial under Article I, Section V of the Wisconsin Constitution and Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177?
2. If the right to a jury trial exists under one set of procedures but not the other set of procedures, how does this affect the question of whether the procedures are significantly different?
3. What is the level of scrutiny applied to determine the constitutionality of the statute if there is a constitutional right to a jury trial?
4. Do the challenged portions of Act 86 survive that level of scrutiny?
¶20 The parties presented oral argument in regard to these four issues on October 7, 2010.
II. STANDARD OF REVIEW
¶21 A challenge to the constitutionality of a statute presents a
question of law that we review de novo. Nankin,
¶22 The equal protection clause of the Wisconsin Constitution provides
that "[a]ll people are born equally free and independent, and have certain
inherent rights; among these are life, liberty and the pursuit of happiness . .
¶23 Nankin sets forth the three-step analysis we apply in
determining whether Act 86 violates the equal protection provisions of the
A. Act 86 Creates a Distinct Class of Citizens
¶24 The parties agree that Act 86 created a distinct class of citizens. We are not bound by this agreement. However, we have conducted our own review, and after doing so, hold that Act 86 did create a distinct class of citizens: taxpayers living in opt out municipalities. Therefore, we turn our attention next to the second step in the Nankin analysis——whether Act 86 treats taxpayers in opt out municipalities significantly different than all other taxpayers.
B. Act 86 Treats Taxpayers Living in Opt Out Municipalities Significantly Different Than All Other Taxpayers
¶25 Act 86 requires taxpayers in opt out municipalities to follow a different procedure in order to challenge their property tax assessments than the procedure taxpayers in all other municipalities must follow. In this section, we first discuss Act 86's different treatment at the Board of Review stage. Second, we discuss Act 86's different treatment at the circuit court review stage. Third, we explain why these differences cause taxpayers in opt out municipalities to follow a significantly different process to challenge their assessments than taxpayers in all other municipalities. Fourth, we discuss whether a jury trial right exists in de novo review actions.
1. Assessment Challenges at the Board of Review Stage
¶26 Act 86 grants taxpayers
living in opt out municipalities three rights at the Board of Review stage that
taxpayers in all other municipalities do not have: a more detailed notice of a
changed assessment, the right to additional time to prepare for their Board of
Review hearing date, and comparatively broader discovery rights. See
first of these rights relates to the notice of a changed assessment that must
be sent to an affected taxpayer.
Assessors in all municipalities must send notices of changed assessments
to each taxpayer at least fifteen days before the Board of Review's annual
second of these rights is the right of taxpayers in opt out municipalities to a
sixty-day extension of their Board of Review hearing date. If a taxpayer in any municipality objects to
their assessment, the taxpayer must give written or oral notice of an intent to
file an objection to the board's clerk at least forty-eight hours before the
board's first scheduled meeting of the year.
third of these rights relates to broader discovery rights available to
taxpayers in opt out municipalities during Board of Review proceedings. If the objecting taxpayer in an opt out
municipality receives a sixty-day extension, the assessor and the taxpayer must
exchange all reports, documents, and exhibits they will present at the Board of
Review hearing no less than ten days before the hearing.
2. Assessment Challenges at the Circuit Court Stage
Act 86 requires opt out municipalities to grant their taxpayers additional
rights during Board of Review proceedings, Act 86 limits both the type and
scope of circuit court review these taxpayers may seek. Act 86 limits taxpayers in opt out municipalities
to circuit court review through the “enhanced certiorari procedure” set forth
in Wis. Stat. § 70.47(13). In
contrast, taxpayers in all other municipalities have a right to select from
either traditional certiorari review or de novo review. See
enhanced certiorari review available to taxpayers in opt out municipalities is
narrower in scope than the de novo review available to all other
taxpayers. Under enhanced certiorari
review, the circuit court must presume that the Board of Review's assessment is
correct absent a "sufficient showing" that the assessment is
contrast, the de novo review available in all other municipalities requires
that a circuit court make its determination without regard to the Board of
Review's record or decision. Nankin,
3. Enhanced Certiorari and Enhanced Board of Review Procedures Available in Opt Out Municipalities Are Significantly Different From the De Novo Procedure Available in All Other Municipalities
¶33 Having surveyed the differences between the assessment challenge procedure available to taxpayers in opt out municipalities and the assessment challenge procedure available to taxpayers in all other municipalities, we next consider whether these differences are significant in light of this court’s decision in Nankin. The court of appeals held that Act 86 successfully addressed Nankin's equal protection concerns and, therefore, no significantly different treatment existed between taxpayers in opt out municipalities and taxpayers in all other municipalities. We disagree.
¶34 We first discuss
the reasoning that led the Nankin court to hold that
a. Nankin Concludes that Significantly Different Treatment Exists When Some Citizens May "Fully Contest Their Case in a Court Trial" and Others May Not
2001, all taxpayers could first seek review of an assessment at their local
Board of Review. In 2001, however,
¶36 The Nankin court pointed to four differences between de novo
review and the Board of Review procedures provided to
Nankin focused on three differences between de novo review and
traditional certiorari review when it held that the traditional certiorari
process was significantly different than a de novo procedure which allowed
taxpayers to "fully contest their
case in a court trial." First, de novo review requires the circuit court
to make its own independent determinations, while traditional certiorari review
is limited to a review of the record as it was compiled at the Board of Review
stage. Second, de novo review requires giving presumptive weight only to the
assessor's determination, while traditional certiorari review requires circuit
court deference to the Board of Review's decision. And third, de novo review
requires the circuit court to make its own assessment determination, while
traditional certiorari review generally requires the circuit court to remand to
the board if a reassessment is necessary.
b. Taxpayers in Opt Out Municipalities May Not “Fully Contest Their Case in a Court Trial” While All Other Taxpayers May Do So
¶39 Applying this court’s reasoning in Nankin to the present
case, we must examine the differences between Act 86's enhanced certiorari and
Board of Review procedures, and contrast them with the de novo procedure
available to all other taxpayers——a
process which allows taxpayers to "fully contest their case in a court
trial." Nankin, 245
i. Enhanced Board of Review Rights
enhanced Board of Review hearing rights available under Act 86 to taxpayers in
opt out municipalities do not allow taxpayers in Board of Review proceedings to
"fully contest their case in a court trial."
¶41 For one, the sixty-day hearing date extension under Act 86 runs the
risk of forcing complex property disputes into being heard much more quickly
than such disputes would typically be heard in a de novo action. Further, additional extensions following the
initial sixty-day extension would require a finding of "good cause"
by a Board of Review composed not of legal experts, but instead composed of lay citizens.
¶42 Even setting aside these defects, the Board of Review process suffers other shortcomings
when compared to a de novo action. For
one, the Board of Review procedure under Act 86 allows the taxpayer access to
the assessor's trial exhibits a mere ten days prior to their hearing.
¶43 The enhanced Board of Review rights created by Act 86 fail to provide taxpayers the ability to "fully contest their case in a court trial." Accordingly, we hold that the enhanced Board of Review rights cause taxpayers in opt out municipalities to be treated significantly different than all other taxpayers.
ii. Enhanced Certiorari Procedure
¶44 The enhanced certiorari procedure created by Act 86 also 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.
¶45 This court observed in Nankin that the de novo action “is not
simply another means of judicial review."
¶46 Unlike de novo actions, the circuit court on enhanced certiorari
review must first review the Board of Review's factual and legal findings. Only then does it decide whether the
decision's presumption of correctness is rebutted——a prerequisite to the taxpayer introducing any
¶47 The enhanced certiorari procedure created by Act 86 fails to provide taxpayers the ability to "fully contest their case in a court trial." Accordingly, we hold that the enhanced certiorari procedure created by Act 86 causes taxpayers in opt out municipalities to be treated significantly different than all other taxpayers.
4. Section 74.37 De Novo Review Does Not Contain a Jury Trial Right
¶48 Both parties concede that if a § 74.37 de novo action contains a jury trial right and a § 70.47(13) enhanced certiorari proceeding does not contain such a right, this would per se qualify as significantly different treatment. We agree that such a distinction between the assessment review processes would qualify as a significant difference. Therefore, whether the § 74.37 de novo action contains a jury trial right is relevant in determining whether the de novo action and enhanced certiorari proceeding are significantly different.
parties disagree as to whether de novo actions brought pursuant to Wis. Stat.
§ 74.37 contain a jury trial right.
We hold they do not. In Village
Food & Liquor Mart, 216
[A] party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848 and (2) the action was regarded at law in 1848.
conclude that an action for money had and received in an excessive valuation
case was not recognized at common law in 1848 and therefore only reach the
first step in the Village Food analysis.
In applying the first step of the Village Food test, we look to
whether a § 74.37
de novo action "is essentially the counterpart of a cause of action
existing in 1848 [and whether] the two causes of action . . . share a similar
purpose." Harvot v. Solo Cup Co.,
2009 WI 85, ¶72, 320
¶51 First, we discuss whether Matheson v. Town of Mazomanie, 20
a. No Common Law Action Existed in 1848 for Excessive Assessment Claims
¶52 Metropolitan Associates cites no case showing that actions for an
excessive assessment existed in our pre-1848 common law. Metropolitan Associates erroneously relies on
Matheson v. Town of Mazomanie, 20
¶53 Matheson is not an excessive assessment case. The "unlawful and void" language from Matheson shows that the assessor did not merely overvalue property which the assessor had the lawful power to tax. This "unlawful and void" language instead reveals that the assessor did not have the power to assess the nonenumerated articles against Matheson. A clear counterpart to the common law Matheson claim would be a modern Wis. Stat. § 74.35 action to recover an "unlawful tax" and not a Wis. Stat. § 74.37 excessive assessment action. Modern excessive assessment cases under § 74.37 do not concern the power of the assessor to assess a certain property (i.e. the "lawfulness" of the tax). Rather, modern excessive assessment cases concern the proper application of assessment principles to property which can lawfully be subject to tax.
¶54 Metropolitan Associates further relies on our holding in A.H. Strange Co. v. City of Merrill, 134 Wis. 514, 518, 115 N.W. 115 (1908), that:
Independently of the statute, if one pays a tax involuntarily, . . . he may sue to recover back the tax. It will be observed that an action based on involuntary payment of an illegal tax was held to be maintainable in this state before the passage of the law of 1870 . . . .
Metropolitan Associates argues that since property taxes are
involuntarily paid, they fall under the common law action described in A.H.
Strange. Metropolitan Associates,
however, ignores the language in A.H. Strange which expressly limits the
common law action described therein to one involving an "illegal
The Procedure for Challenging Assessments Which Existed in
statutory processes for assessment challenges which existed in the decade prior
to statehood show that in this period, excessive assessment cases were not
tried to juries. The 1839 Statutes of the
[S]hould any person feel aggrieved by the value which may be affixed upon his land by the assessor, or by the value at which the appraisers estimated his town lot, he may produce evidence before the board of commissioners, and if they think the value too high or too low, they shall order the clerk to alter it accordingly.
¶56 The 1839 statutes also provided a mechanism for review of the county board of commissioners' decision in the district court:
From all the decisions of the several boards of commissioner[s] there shall be allowed an appeal to the district court, by any person or persons aggrieved, and the person or persons appealing shall take the same within thirty days after such decision, by giving bond with security, to the acceptance of the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of costs, if the same shall be adjudged by the said court to be paid by such appellant; and the clerk shall record such appeal, with the cases pending in the district court, within twenty days after the taking of such appeal.
c. The Procedure for Challenging Assessments Which Existed Immediately After Statehood Did Not Contain a Jury Trial Right
the decade after statehood, from 1848 until 1858,
¶58 Because taxpayers had no right to try excessive assessment claims to juries either immediately before or after statehood, it would be incompatible with both Wisconsin's history and the Village Food test to hold that the modern § 74.37 de novo excessive assessment claim contained a jury trial right.
¶59 Although we find that neither an enhanced certiorari proceeding nor
a de novo action contains a jury trial right, we nonetheless hold that Act 86
treats taxpayers in opt out municipalities significantly different from all
other taxpayers. We must therefore,
unlike the court of appeals, reach the third step of Metropolitan Associates'
equal protection challenge——whether
there is a rational basis for this significantly different treatment. Nankin, 245
C. No Rational Basis Exists for the Significantly Different Treatment of Taxpayers in Opt Out Municipalities
¶60 Having concluded that Act 86 treats taxpayers in opt out municipalities significantly different from all other taxpayers, we next consider whether this significantly different treatment has a rational basis.
¶61 A statute violates equal protection only when "the legislature
has made an irrational or arbitrary classification, one that has no reasonable
purpose or relationship to the facts or a proper state policy."
¶62 "'The fact [that] a statutory classification results in some
inequity . . . does not provide sufficient grounds for invalidating a
classification created by Act 86 is based on whether or not a municipality has
enacted an ordinance opting out of de novo review. After reviewing Act 86's legislative history,
we note that the legislature did not articulate any rationale for creating this
distinct class of opt out taxpayers.
Therefore, we are obligated to construct a rationale if at all possible. Nankin, 245
¶64 Under our case law, a statute must meet five criteria in order to have a rational basis:
(1) All classification[s] must be based upon substantial distinctions which make one class really different from another;
(2) The classification adopted must be germane to the purpose of the law;
(3) The classification must not be based upon existing circumstances only. [It must not be so constituted as to preclude addition to the numbers included within the class];
(4) To whatever class a law may apply, it must apply equally to each member thereof;
(5) The characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.
¶65 To overcome the first prong of the rational basis test,
¶67 In Nankin we held that "[t]here is nothing inherent
about populous counties to justify the classification in the statute that
restricts the manner in which owners of property located in such counties may
challenge their assessments." Nankin,
There is no reason why an owner of property located in
¶68 In this case——to echo Nankin's
holding——we see 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. See Id., ¶41.
Taxpayers in opt out municipalities are no different from taxpayers in
all other municipalities, except for the different rights available to
taxpayers in opt out municipalities at the Board of Review and circuit court
review stages. We see no reason
why Act 86 allows opt out
municipalities to deny their taxpayers the ability to "fully contest their
case in a court trial," while taxpayers in all other municipalities may
still fully contest their case in a de novo proceeding.
¶70 Under the second
prong of the rational basis test, we examine whether the classification adopted
is germane to the purpose of the law.
¶71 Judicial efficiency is a concern that all courts share, irrespective of municipal location. See id., ¶¶38, 43-44. It is irrational for the legislature to allow opt out municipalities to arbitrarily deprive their citizens of de novo review based on whatever criteria the municipality chooses to consider. Act 86 does not bind a municipality to first consider whether opting out of de novo review would be a more efficient process for that municipality and its taxpayers. A municipality following Act 86 may, for whatever reason it chooses——whether aligned with the legislature’s stated objectives or not——opt out of de novo review.
under the fifth prong of the rational basis test, we "examine whether the
characteristics of each class are so far different as to reasonably suggest the
propriety, as to the public good, of substantially different legislation." Nankin, 245
sum, Act 86 fails to satisfy the first, second, and fifth criteria of the
rational basis test. We therefore hold
that Act 86's irrational denial of de novo review to a distinct class of
citizens violates the equal protection provisions of the
D. Act 86's Severability
¶75 Because we have concluded that the provisions of Act 86 which allow municipalities to deny their citizens access to § 74.37 de novo review violate equal protection, we must now determine whether the unconstitutional provisions may be severed from Act 86's remaining provisions.
¶76 Wisconsin Stat. § 990.001(11)
provides that "[i]f any provision of the statutes or of a session law is
invalid . . . such invalidity shall
not affect other provisions or applications which can be given effect without
the invalid provision or application."
We have long held that "the presumption is in favor of severability." Nankin, ¶49 (quoting State v. Janssen, 219
¶77 The legislature has expressed no intent in Act 86 that is contrary to the general presumption of severability. Further, the remaining sections of Wis. Stat. §§ 70.47, 73.03, and 74.37 remain fully operative as a law when the modifications from Act 86 which create the enhanced Board of Review procedure and the enhanced certiorari procedure are severed. As a result, we hold that the provisions of Act 86 which create the enhanced Board of Review procedure and the enhanced certiorari procedure are severable.
¶78 The circuit court severed only the specific subsections of § 74.37 that restrict taxpayers in opt out municipalities from seeking de novo review. The statutes creating the enhanced Board of Review and enhanced certiorari procedures were not affected by the circuit court order.
¶79 As a result, under the circuit court's order, taxpayers in opt out municipalities would have access to three separate assessment review procedures: the enhanced Board of Review procedure, enhanced certiorari procedure, and de novo review. By contrast, under the circuit court's order, taxpayers in all other municipalities would have access to traditional certiorari review and de novo review. In enacting Act 86, the legislature clearly did not intend to create a situation where enhanced board of review and enhanced certiorari procedures would be available in a municipality where de novo review was also available. Therefore, we conclude that all of Act 86’s modifications to Wis. Stat. §§ 70.47, 73.03, and 74.37 are unconstitutional.
¶80 It 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.
¶81 We conclude that the treatment taxpayers in opt out municipalities receive under Act 86 it significantly different than the treatment all other taxpayers receive, and we conclude that this difference in treatment lacks a rational basis. Accordingly, we reverse the court of appeals and hold that all of Act 86’s modifications to Wis. Stat. §§ 70.47, 73.03, and 74.37 are unconstitutional.
By the Court.—The decision of the court of appeals is reversed.
¶82 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree with the unanimous decision of the court of appeals reversing the order of the circuit court and holding that 2007 Wis. Act 86 is constitutional. I agree with the court of appeals that in enacting 2007 Wis. Act 86 the legislature sought to, and effectively did, address the equal protection deficiencies identified in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141.
¶83 As a result of 2007
¶84 First, like the court of appeals, I conclude that the treatment of taxpayers in "opt-in" taxation districts under 2007 Wis. Act 86 is not significantly different from the treatment of taxpayers in taxation districts operating under Wis. Stat. § 74.37(3)(d). Second, I conclude that even if the treatment of taxpayers in the two different classes of municipalities is significantly different, a rational basis exists for enabling taxing districts to determine whether to enact an ordinance to "opt in" under 2007 Wis. Act 86. Third, I conclude that the majority errs in its severability analysis. If sections 8 and 9 of 2007 Wis. Act 86 are unconstitutional, they may be severed from the remainder of 2007 Wis. Act 86.
¶85 Like the court of appeals, I conclude that the treatment of taxpayers in opt-in taxation districts under 2007 Wis. Act 86 is not significantly different from the treatment of taxpayers in taxation districts operating under Wis. Stat. § 74.37(3)(d). Accordingly, 2007 Wis. Act 86 is not unconstitutional.
¶86 2007 Wis. Act 86 addressed the concerns this court elucidated in Nankin.
¶87 2007 Wis. Act 86 gives increased rights to the taxpayer before the Board of Review:
• Property owners can request a 60-day period to prepare for a hearing before the Board and may request additional extensions for good cause.
• The parties are required to simultaneously exchange all reports, documents, and exhibits that will be presented at the hearing at least 10 days prior to the Board hearing.
• The Board may, and upon request of the assessor or the taxpayer shall, compel the attendance of witnesses for the hearing. Further, the Board upon good cause may compel the attendance of witnesses for depositions.
¶88 Moreover, 2007 Wis. Act 86 gives increased rights to the taxpayer in judicial review of the Board of Review's assessment. The decision of the Board of Review is granted a presumption of correctness, but "that presumption goes away if 'rebutted by a sufficient showing by the [taxpayer] that the valuation is incorrect. If the presumption is rebutted, the court shall determine the assessment without deference to the board of review and based on the record before the board of review, except that the court may consider evidence that was not available at the time of the hearing before the board[,] [or] that the board refused to consider, or that the court otherwise determines should be considered in order to determine the correct assessment.'"
¶89 As the court of appeals explains, the circuit court is given extensive leeway in judicial review under 2007 Wis. Act 86, consistent with a circuit court's powers to conduct trials.
¶90 A presumption plays a role in judicial review under 2007 Wis. Act
86 and also plays a role in
judicial review under Wis. Stat. § 74.37(3)(d). The circuit court in a § 74.37(3)(d) action
gives presumptive weight to the assessor's assessment. Therefore, under 2007
¶91 Even if the difference in the operation of these two presumptions under the two systems amounts to "some inequity," which I do not think it does, a "statutory classification [that] results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment."
¶92 I conclude that a taxpayer in an "opt in" taxation district is not treated significantly differently from a taxpayer who pays the tax and seeks relief from an excessive assessment under Wis. Stat. § 74.37(3)(d). Accordingly, I conclude there is no equal protection violation.
¶93 In Nankin, this court was faced with a classification based on county population. In the instant case, we are faced with a classification based on an option given to taxation districts.
¶94 The challenged legislation in the present case, unlike the statute the court declared unconstitutional in Nankin, is uniformly applicable to all taxation districts. The classifications developed in the present statutory system are based on an option granted to all taxation districts to determine a comprehensive tax assessment challenge system applicable to the taxpayers in that district.
¶95 This distinction leads me to the conclusion that even if I were to agree with the majority that taxpayers are treated substantially differently, the legislation granting a taxation district the option to establish this alternative procedure for tax assessment challenges is constitutional.
¶96 A statute is presumed constitutional. In the present case it is undisputed that rational basis is the appropriate level of scrutiny for the equal protection challenge. The challenger has the burden of demonstrating that the classification is arbitrary and irrational beyond a reasonable doubt.
¶97 The statute challenged in the instant case will be upheld against an equal protection challenge if a plausible policy reason exists for the classification and the classification is not arbitrary in relation to that reason. It will be held unconstitutional if it is shown to be "patently arbitrary" with "no rational relationship to a legitimate government interest."
¶98 The legislature did not explicitly set out its purpose in enacting 2007 Wis. Act 86. I will therefore search for a purpose that will uphold the statute's constitutionality.
¶99 A legitimate purpose of this law is to increase the efficiency of the tax assessment challenge process for taxpayers and taxation districts. An additional purpose, as indicated by the legislative history, is to provide a system that will reduce the number of actions brought under § 74.37.
¶100 In Nankin, we determined that a classification based strictly on county population was not germane to the purpose of judicial efficiency, or faster and cheaper resolution of assessment challenges for taxpayers (and taxation districts). In large part this conclusion was based on the fact that those same purposes are similarly applicable to all taxpayers regardless of the population of the county in which the property is located.
¶101 Here, the analysis is necessarily different. The classification is not based strictly on a county population number. Rather, the classification is based on the choice of a taxation district.
¶102 Put simply, there is a legitimate government interest in efficiently handling tax assessment challenges. Giving municipalities a choice between two comprehensive procedures advances this purpose, because it allows each taxation district to determine which procedure is more efficient under its unique circumstances. As pointed out by the circuit court, one unique factor is the number and percentage of commercial and residential properties located in the taxation district. Apparently, more challenges can be expected regarding commercial properties.
¶103 While the purpose of 2007 Wis. Act 86 is not expressly stated, efficiency in resolving tax assessment challenges is seemingly the driving force (both for the taxation district and the taxpayer) in creating this new optional system. Providing municipalities with the option to determine which of two procedures will most efficiently resolve tax assessment challenges based on various local factors (like the number of residential and commercial properties) bears a rational relationship to the government interest in creating an efficient system before the Board of Review and the courts for tax assessment challenges.
¶104 The majority opinion rebukes Milwaukee's argument that the procedures under 2007 Wis. Act 86 are "faster, more efficient, [and] more cost-effective" by suggesting that if that were the case the legislature could simply repeal § 74.37(3) and universally apply the procedure created by 2007 Wis. Act 86. Majority op., ¶72.
legislature most certainly has the power to do so. However, although the procedure created in
2007 Wis. Act 86 may be faster, more efficient, and more cost-effective for
¶106 Contrary to the majority's conclusions, I cannot conclude that the legislation is "arbitrary," because it leaves for the taxation district the choice of how a taxpayer should proceed to challenge an assessment. The state legislature provides options to local government in a number of areas. And as with all policy decisions vested in the representative branches of government, the recourse for taxpayers unhappy with the policy decisions of their representatives rests in the ballot box.
conclude that the legislature could rationally conclude that the uniqueness and
variety of the taxation districts in
¶108 The circuit court declared unconstitutional only Wis. Stat. § 74.37(4)(c) and (4)(d) as amended and created by 2007 Wis. Act §§ 8 and 9. In contrast, the majority opinion invalidates the entire 2007 Wis. Act 86 by stating: "[T]he legislature clearly did not intend to create a situation where enhanced board of review and enhanced certiorari procedures would be available in a municipality where de novo review was also available." Majority op., ¶79. I disagree with the majority opinion.
¶110 There seems to be no dispute in the present case that if the invalid part of 2007 Wis. Act 86 falls away, the remainder can be fully operative.
¶111 The question then becomes whether it is "evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not . . . ."
¶112 Nothing in the text of 2007 Wis. Act 86 or the legislative history of the Act makes it "evident" that the legislature intended that the Act not be severable.
the reasons set forth, I cannot join the majority's declaration that
2007 Wis. Act 86 violates the
¶114 I am authorized to state that Justice ANN WALSH BRADLEY and Justice N. PATRICK CROOKS join this dissent.
 Metro. Assocs. v. City of
 Act of Mar. 13, 2008, 2007 Wis. Act § 86 (relating to objecting to property tax assessments).
 "Taxation district"
is defined as "a town, village or city in which general property taxes are
levied and collected."
 A third option, not relevant
to the present case, is available for obtaining judicial review of a Board of
Review’s decision. An objecting taxpayer
may file a written complaint with the Wisconsin Department of Revenue pursuant
to Wis. Stat. § 70.85. This method
is only available in limited circumstances.
§ 70.85(1). Review of the
Department of Revenue's decision may only proceed through common law
certiorari. § 70.85(4)(c); See
Hanlon v. Town of Milton, 2000 WI 61, ¶23, 235
 Because we interpret the
United States Constitution's Fourteenth Amendment Equal Protection Clause and
the Wisconsin Constitution's Equal Protection Clause in the same manner, we
decided Nankin under both. Nankin,
 Wis. Stat. § 70.47(16)(c)
details the enhanced Board of Review procedure for first class cities that
adopt ordinances for assessment review under Act 86. To be classified a first class city, a city
must have a population of at least 150,000.
 Wis. Stat. § 74.37(4)(c) and § 74.37(4)(d) prohibit taxpayers in municipalities that have enacted ordinances adopting enhanced Board of Review and enhanced certiorari procedures from challenging their assessments under de novo review.
 Boards of review must
meet annually during the thirty-day period beginning on the second Monday in
 Unless good cause or
extraordinary circumstances are shown.
 The Board of Review may
hear written objections at its first meeting if the board gave notice of the
hearing to the property owner and the assessor at least forty-eight hours prior
to the beginning of the scheduled meeting or if both the property owner and the
assessor waive the forty-eight hour notice requirement.
 See Part III.B.4.
Under Act 86, the circuit court may consider
“evidence that the court . . . determines should be considered in order to
determine the correct assessment.”
The parties agree that enhanced certiorari
proceedings do not contain a jury trial right.
We also agree. These proceedings
are directly correlated to the common law writ of certiorari which was not an
action for which a jury would have been available at common law. See Milwaukee Iron Co. v. Schubel,
 This 1838-48 period is
critical to our analysis because the Village Food test requires that we examine
whether the cause of action created by Wis. Stat. § 74.37 "was known,
or was recognized at common law at the time of the adoption of the Wisconsin
Constitution in 1848." Village Food, 216
 Usually, this court
will uphold a statute under equal protection principles if we find that a
rational basis supports the legislative classification. Aischer ex rel. LaBarge v.
 The specific subsections of § 74.37 that were severed by the circuit court were § 74.37(4)(c) as amended by Act 86 and § 74.37(4)(d) as created by Act 86.
 One exception exists. Section 10 of Act 86 modifies the manner in which interest is calculated under § 74.37. This section applies to all taxpayers seeking de novo review and therefore is not implicated by our equal protection analysis. Further, it is evident the legislature would have enacted this interest rate provision independently of the provisions we are invalidating today. Therefore, we do not sever § 74.37(5) as modified by Section 10 of Act 86.
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Metro. Assocs. v. City of Milwaukee, 2009 WI App 157, ¶9, 321 Wis. 2d 632, 774 N.W.2d 821 (the court of appeals explains that this analysis comes directly from the statutes but that "[t]he bracketed comma does not appear in the amended Wis. Stat. § 70.47(16)(a); the bracketed "or" is in the amended § 70.47(16)(a) but is not in the amended § 70.47(13)").
 State v. McManus,
 Nankin v. Village of
Shorewood, 2001 WI 92, ¶10, 245
 For a discussion of the strict and intermediate levels of scrutiny when a statute is challenged on equal protection grounds, see Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, ¶¶59-63, 284 Wis. 2d 573, 701 N.W.2d 440.
 Ferdon, 284
oft-used language of "proof beyond a reasonable doubt" is more
pertinent to an evidentiary burden of proof than to a burden imposed on a party
on constitutionality, a question of law.
The burden of proof language recognizes the deference due to the
legislature. State v. Jadowski,
2004 WI 68, ¶10 n.7, 272
 Ferdon, 284 Wis. 2d 573, ¶73; Maurin v. Hall, 2004 WI 100, ¶106, 274 Wis. 2d 28, 682 N.W.2d 866; Doering v. WEA Ins. Group, 193 Wis. 2d 118, 131, 532 N.W.2d 432 (1995) (citing Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 886, 517 N.W.2d 135 (1994)); see also Sambs v. City of Brookfield, 97 Wis. 2d 356, 370-72, 293 N.W.2d 504 (1980).
 Maurin, 274
The court sometimes uses a five-part test in analyzing equal protection challenges. The five-part test is derived from cases involving a challenge to a law on the grounds that it is a special law. See, e.g., Johnson v. Milwaukee, 88 Wis. 383, 60 N.W. 270 (1894) (setting forth the first four factors in the five-part test in determining constitutionality based on the challenge that a law was a special law); Boyd v. City of Milwaukee, 92 Wis. 456, 66 N.W. 603 (1896) (challenge under constitutional prohibition of special laws); Risch v. Board of Trustees of Policeman's Pension Fund, 121 Wis. 44, 98 N.W. 954 (1904) (establishing the fifth criterion in deciding whether the challenged law was a general or special law); Brown v. Haney, 190 Wis. 285, 209 N.W. 591 (1926) (uniformity challenge based on classifications of school districts).
In Ford Hopkins Co. v. Mayor & Common Council of City of Watertown, 226 Wis. 215, 276 N.W. 311 (1937), the court first applied the five-part test rooted in Johnson v. City of Milwaukee, 88 Wis. 383, to an equal protection challenge.
For early cases using the rational basis approach in equal protection challenges, see State v. Whitcom, 122 Wis. 110, 118, 99 N.W. 468 (1904) (equal protection "permits separation of [property or persons] into classes of property or persons similarly conditioned or situated, having characteristics legitimately distinguishing the members of one class from those of another in respects germane to some general and public purpose and object of the particular legislations."); Milwaukee Sales & Investment Co. v. Railroad Comm'n of Wis., 174 Wis. 458, 465, 183 N.W. 687 (1921) (equal protection action holding that "[t]he classification made by the act fails, in that it is not based on characteristics legitimately distinguishing the members of one class from those of the others in respects germane to the public purpose or object of this legislation . . . ."); In re Christoph, 205 Wis. 418, 421, 237 N.W. 134 (1931) ("[The] equality rule of the Constitution permits separation into classes if they have characteristics legitimately distinguishing the members of one class from another in respects germane to some public purpose.").
 "We're trying to reduce
the number of assessment appeals that go to Circuit Court by creating an
optional Board of Review process that municipalities could choose to
adopt." E-mail from Denise Solie of
Rep. Mark Gottlieb's office to Joseph Kreye re: Drafting Request - Board of
Review, drafting file for 2007
Wis. Act 68, Wisconsin Legislative Reference Bureau,
 Majority op., ¶¶71-72.
 These options run the gamut of issues that effect local governance, from the most fundamental, the organizational structure of local government, Wis. Stat. §§ 64.01 & 64.25, or the number of alders, Wis. Stat. § 64.39, to more specific issues that affect residents and businesses within a municipality. See, e.g., Wis. Stat. § 66.0615 (establishment of room tax); Wis. Stat. § 66.0405 (system for removal of rubbish).
 State v. Janssen,
 Nankin, 245