State Ex Rel. Nekoosa Papers, Inc. v. Board of Review
State Ex Rel. Nekoosa Papers, Inc. v. Board of Review
Opinion of the Court
The Board of Review of the Town of Saratoga appeals from the circuit court’s order setting aside the town’s 1979 tax assessments against properties of respondents Nekoosa Papers, Marlene Capek, Laurel Babb, Thomas and Elizabeth Joslin, Mengel Cranberry Company and Getzin Cranberry Company. The court held that the board erred by failing to make a verbatim record of its deliberative sessions following the hearings on respondents’ objections to the assessments. We reverse.
The relevant facts are undisputed. Pursuant to sec. 70.47(8), Stats., the board of review conducted hearings on respondents’ objections to the assessor’s valuations of their properties. Verbatim records were made of those hearings. The board held its deliberative sessions at other times. The only records of the deliberative sessions consist of board minutes kept by the town clerk.
Dissatisfied with the board’s determinations, respondents sought judicial review, pursuant to sec. 70.47 (9a), Stats. 1977.
The issue turns on the meaning of a statute, a question of law. We are not bound by the trial court’s views on the meaning of a statute. State v. Yellow Freight System, Inc., 96 Wis. 2d 484, 489, 292 N.W.2d 361, 364 (Ct. App. 1980), aff'd, 101 Wis. 2d 142, 303 N.W.2d 834 (1981). If a statute is unambiguous, no judicial rule of construction is permitted, and a court must arrive at the intention of the legislature by giving statutory language its ordinary and accepted meaning. State ex rel. Milwaukee County v. WCCJ, 73 Wis. 2d 237, 241, 243 N.W.2d 485, 487 (1976).
Board of review proceedings are conducted pursuant to sec. 70.47, Stats. Separate subsections of that statute control the procedure applicable to hearings before the board and the procedure applicable to the board’s deliberations. Section 70.47(8), describing the procedure
The deliberative sessions of the board are conducted pursuant to another subsection, sec. 70.47(9), Stats., which provides:
(a) From the evidence before it the board shall determine whether the assessor’s valuation is correct. If too high or too low, it shall raise or lower the same accordingly. A majority of the members of the board present at the meeting to make the determination shall constitute a quorum for purposes of making such determination, and a majority vote of the quorum shall constitute the determination. In the event there is a tie vote, the assessor’s valuation shall be sustained.
(b) A board member may not be counted in determining a quorum and may not vote concerning any determination unless, concerning such determination, such member:
1. Attended the hearing of the evidence; or
2. Received the transcript of the hearing no less than 5 days prior to the meeting and read such transcript; or
3. Received a mechanical recording of the evidence no less than 5 days prior to the meeting and listened to such recording; or
4. Received a copy of a summary and all exceptions thereto no less than 5 days prior to the meeting and read such summary and exceptions. In this subdivision “summary” means a written summary of the evidence prepared by one or more board members attending the hearing of evidence, which summary shall be distributed to all board members and all parties to the contested assessment and “exceptions” means written exceptions to the summary of evidence filed by parties to the contested assessment.
Respondents point out that in Dolphin v. Board of Review, 70 Wis. 2d 403, 411, 234 N.W.2d 277, 282 (1975), it was held jurisdictional error to allow the assessor to participate without the taxpayer’s presence in a board of review “executive session” regarding the correctness of an assessment. Respondents argue that a verbatim record of the deliberations session is necessary for an objecting taxpayer to establish whether such inproprieties occurred. Respondents’ concern, however justifiable, does not authorize us to add a procedural requirement to sec. 70.47, Stats., not specified by the legislature.
By the Court. — Order reversed and cause remanded for further proceedings.
The dates of the board’s determinations are of record. The dates of the hearings and deliberative sessions on the individual objections are not in the record.
Section 70.47(9a), Stats. 1977, was renumbered sec. 70.47(13) by sec. 878, ch. 34, Laws of 1979, effective July -29, 1979. Sec. •2104, eh. 34, Laws of 1979. It was subsequently amended by sec. 18, ch. 110, Laws of 1979, effective March 1, 1980, and sec. 10, ch. 289, Laws of 1981, effective May 1, 1982.
Dissenting Opinion
(dissenting.) I dissent because I conclude that the majority’s reliance on the plain meaning rule quoted in State ex rel. Milwaukee County v. WCCJ, 73 Wis. 2d 237, 241, 243 N.W.2d 485, 487 (1976) is misplaced. In Madison and Mueller v. Town of Fitchburg, No. 87-1218 slip op. (Wis. April 26, 1983), a majority of the court adopted a new rule by which we examine legislation. We no longer are bound by the plain meaning of a statute because “the spirit or intention of a statute should
I would affirm the trial court because I conclude that the spirit or intention of sec. 70.47(8) (e), Stats., is to make a record of Board of Review proceedings available for the use of the public and for judicial review. This is not possible unless a stenographer or recording device is used.
Reference
- Full Case Name
- State of Wisconsin Ex Rel. Nekoosa Papers, Inc., Petitioner-Respondent, v. the Board of Review of the Town of Saratoga, Respondent-Appellant; State of Wisconsin Ex Rel. Marlene M. Murray, F/N/A Marlene M. Capek, Petitioner-Respondent, v. the Board of Review of the Town of Saratoga, Respondent-Appellant; State of Wisconsin Ex Rel. Laurel D. Babb, Petitioner-Respondent, v. the Board of Review of the Town of Saratoga, Respondent-Appellant; State of Wisconsin Ex Rel. Thomas W. Joslin and Elizabeth D. Joslin, Petitioners-Respondents, v. the Board of Review of the Town of Saratoga, Respondent-Appellant; State of Wisconsin Ex Rel. Mengel Cranberry Company, Inc., Petitioner-Respondent, v. the Board of Review of the Town of Saratoga, Respondent-Appellant; State of Wisconsin Ex Rel. Getzin Cranberry Company, by Kathryn Getzin and Wood County National Bank, as Trustee, Petitioner-Respondent, v. the Board of Review of the Town of Saratoga, Respondent-Appellant
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- Status
- Published