DOLPHIN v. BOARD OF REVIEW,
70 Wis.2d 403 (1975)
234 N.W.2d 277
404 405 406 407 408 409 410 411 412 413 414
BOARD OF REVIEW OF THE VILLAGE OF BUTLER, Respondent.
Supreme Court No. 142 (1974).
Submitted under Section (Rule) 251.54
October 2, 1975. Ä Decided October 28, 1975.
Appeal from a judgment of the circuit court
for Waukesha county:
CLAIR VOSS, Circuit Judge. Reversed and remanded.
For the appellant the cause was submitted on the
briefs of Walter R. Menzies of Menomonee Falls.
For the respondent the cause was submitted on
the brief of John P. Buckley of Waukesha.
WILKIE, C. J.
The appellant, Harold Dolphin, challenged his real estate tax
assessment before the Board of Review of the Village of Butler in
The sole issue on appeal here is whether the board acted on
competent evidence within its jurisdiction when it affirmed[fn1]
the assessment placed on the appellant's residential property
when such evidence consisted soley of statements made by the
village assessor at an executive session of the board without the
presence of the appellant.
We conclude it was jurisdictional error for the board to act on
this incompetent evidence.
We reverse the judgment and direct the circuit court to
set aside the board's decision and remand for further
proceedings in the nature of a new trial or hearing
before the board.
In 1972, the appellant's home was assessed at $32,235,
representing the full value.
In 1973, the village board adopted a resolution calling
for the reassessment of the entire village and thereafter
engaged the services of Henry Trilling of the Great Lakes
Appraisal Corporation to make the reassessment for the 1973
This was done and the appellant's real estate was assessed
in 1973 at $50,400, representing the full value.
After the appellant received notice of the increase in his
assessment, he filed an objection with the Board of Review
which held a hearing on the objection on July 9, 1973.
The appellant appeared at the hearing and objected to
the "too high" assessment placed on his real estate.
He testified that in his opinion the total value for
the land and improvements should be $34,800.
The appellant testified without objection that he had
received at least three appraisals on the property:
(1) From a realtor who stated that the house
would sell for a maximum of $36,000;
(2) from the First National Bank of Waukesha
on the property setting the appraised value
at the same amount Ä $36,000; and
(3) a letter from an appraiser he engaged to
appraise the property.
In this letter, the appraiser spelled out his method of
appraising, which included a comparison to sale prices
of single family homes offering "similar utilities
within the general area."
The letter contained the appraiser's opinion that the total
property could command "$36,000 as a single family residence."
This letter listed the comparable sales the appraiser
considered in arriving at his appraisal of $36,000.
After the appellant presented this testimony, the Board of Review
told him they would notify him by mail of the action taken on his
With that, the appellant apparently left the meeting.
Although the transcript on this appeal does not make it
entirely clear, it appears that after the appellant left
the room, the board considered the matter in what the
transcript denominates "Executive Session."
Remaining with the board in this executive
session was Henry Trilling.
Apparently, Trilling was the only one that said anything
since his remarks were the only ones transcribed.
In this executive session, Trilling attacked
the appraisal submitted by the appellant.
(1) That the appraiser was not there for them to cross-examine;
(2) some of the comparison sales listed by the appraiser
were not within the village of Butler;
(3) the sales the appellant's appraiser used for comparison
purposes did not include the sales of properties
immediately adjacent to the appellant's land.
Trilling also objected to the appellant's appraiser's 50 percent
depreciation of the building, since according to Trilling,
the appellant's residence was all stone and only
twenty-five years old.
More specifically, Trilling made the following statements:
". . . You have him presenting so-called appraisal
data of this property from a realtor who doesn't back
up his data with any specific sales, and we have analyzed
every sale that has taken place in this village and we have
analyzed every sale of all types of properties, and we have
followed the Wisconsin Assessors' Manual System for
evaluating property to equalize it, and we have
adjusted them for sales, so we are sound
on that particular point.
Now you have the opinion of a bank involved here, which
loans money probably more on name rather than on the actual
value of the property, because they, again do not give any
back-up data and of course, the man has been doing business
with them for years, so I guess he's got whatever type of
appraisal he wanted from them.
He has an appraiser that was not here, but we have the
written data that was presented before you; that's Item #2
and on that, the fact that this appraiser is not here to
back up his data, and his data does not include sales of
adjacent properties which would indicate and does
indicate considerably higher values than the
so-called appraisal indicates.
So the appraiser cannot be here to tell us why he
didn't use these sales, if he even knew about them.
The appraiser that made his appraisal depreciates the
building considerably, and I would like to know how an old
building like this can be depreciated that greatly Now, too,
we would have to note that the man has made comparisons with
property that did not sell within this village and God knows
where they are, and one sale that he did compare that
occurred here within the village, we have pulled out the
data and have shown you that, of course, they are nowhere
near similar properties and nowhere near situated on similar
land and nowhere near the same location within the city, or
on that main street with considerably higher land values.
In short, he should have to be able to justify the
statements that are brought forth in his so-called appraisal
of this property, which is, in fact, comparisons made of
properties that no one knows anything about and are nowhere
around here, and he has ignored sales in a general area.
I would object to the board changing its valuation because
there is no testimony that would be for it by the objectors
to the market value of this property. . . ."
After hearing these statements, the board voted unanimously to
reduce the appellant's assessment from $50,400 to $45,000.
Nevertheless, the appellant, still feeling aggrieved, petitioned
the circuit court for Waukesha county for certiorari to review
the actions of the Board of Review and to set aside the tax
assessment on the grounds that the evidence did not
support even the reduced assessment of $45,000.
The circuit court affirmed the reduced assessment, stating that
it was satisfied that the assessor took into account the sales
of similar and adjacent property within the village, and that
the appraisals and arguments offered by the appellant did not
support his contention that the assessment should be reduced
The court concluded that there was no evidence in the record that
the original assessment was incorrect, arbitrary or dishonest,
and that the appellant had not established any basis
for setting aside the assessment.
The rules for reviewing a board of review's action by certiorari
in tax assessment cases has been often stated by this court.
Most recently, in State ex rel. Geipel v. Milwaukee,[fn2]
this court stated:
"The scope of review by certiorari is strictly limited in
Wisconsin. . . . the reviewing court may consider only . . .
(1) Whether the board kept within its jurisdiction;
(2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive or
unreasonable and represented its will and not
its judgment; and
(4) whether the evidence was such that it might reasonably
make the order a determination in question. . . .
"In the context of property assessment for purposes of
taxation the court may determine whether the assessment was
made on the statutory basis, for such inquiry involves a
question of law. . . . If the proper basis was used,
however, and the valuation was not made arbitrarily or in
bad faith, the reviewing court must sustain the valuation if
there is any evidence to support it. . . ."
In this appeal, appellant's contention is not so much that the
assessment was made without following the prescribed statutory
basis, but rather that the assessment was excessive and that
there was no competent evidence to support it.
The appellant objects to the evidence presented by the appraiser
Trilling at the executive session of the Board of Review,
claiming that this procedure violated Section 70.47(7) (b),
Stats., which requires a forty-eight-hour notice to the
objector of the meeting at which the board considers
The board contends that the appellant cannot now raise this
argument because it was not presented to the lower court.
On this threshold question, we conclude we may properly consider
the arguments raised by the appellant even though such arguments
are raised for the first time on this appeal.
In State ex rel. General Motors Corp. v. Oak Creek,[fn4] this
court dealt with a similar issue concerning whether the fact
that the taxpayer failed to raise a question of the validity
of a taxing statute before the board of review and in its
initial brief in circuit court on certiorari, constituted
a waiver of the taxpayer's right to have that issue decided.
This court rejected the waiver argument and concluded that
the issue, being one of law, should have been decided
by the circuit court.
Furthermore, we stated:
However, even if this inquiry into the jurisdiction of the
board is deemed to have been waived in the trial court and
raised for the first time on appeal, it would appear that
the court should still consider it because of its
fundamental nature and importance.
The usual reasons for not considering such questions are not
present here in that there is no problem of an incomplete record,
and the opposing party has had the opportunity to brief the
question and present its arguments.
This court has said that whether it should review an issue raised
here for the first time depends upon the facts and circumstances
disclosed by the particular record.
The question is one of administration, not of power.
See Cappon v. O'Day (19.17), 165 Wis. 486,
162 N.W. 655;
State ex rel. Postel v. Marcus (1915), 160 Wis. 354,
152 N.W. 419.
Since the issue raised concerns the jurisdiction of the board
of review, a subject properly reviewable on certiorari,
it should be considered."[fn5]
On certiorari, courts review the proceedings of the board
of review to ascertain whether it kept within its
jurisdiction and whether it acted upon competent
evidence to give it jurisdiction.[fn6]
Since in the instant case, the only evidence in the record
concerning the assessment of the appellant's property came
from Trilling at the "executive session" the narrow question
is whether this was competent evidence upon which the board could
In the case of State ex rel.
Baker Mfg. Co. v. Evansville,[fn7] the taxpayer appealed to
this court from a judgment quashing his writ of certiorari
which had been sought to review the proceedings
of the board of review of the city of Evansville.
The board had sustained an assessment of the
taxpayer's personal property after two meetings.
The first of the meetings occurred on September 21, 1949, and was
referred to as "an informal meeting." From the reported case, it
appears that no action was taken at this meeting, although the
president of the taxpayer had been invited to participate in it.
This meeting was abruptly adjourned.
Thereafter, on October 17, 1949, the city clerk issued
a notice that there would be a meeting of the
board at 7:30 p.m. on October 18th.
The taxpayer received ten hours' notice of this meeting,
but did not attend.
At this second meeting, the. assessor and other witnesses
were examined with respect to the assessment.
The board of review and later the trial court on certiorari
relied on the assessor's testimony at this meeting to sustain
the assessment placed on the taxpayer's personal property.
On appeal, this court reversed, citing the provisions of Section
70.47(4), Stats., which states that the board of review may
adjourn from time to time until its business is completed,
and if an adjournment is had for more than one day,
a written notice must be posted on the outer
door of the place of the meeting stating to
what time the meeting is adjourned.
This court noted that the record did not reveal that any
such notice was posted and furthermore this court
characterized the October 18th meeting as a new meeting
requiring a statutory forty-eight-hour notice under the
provisions of Section 70.47(7)(b), Stats.,
to the taxpayer or its attorney.
Noting that although a ten-hour notice was given, the
taxpayer did not attend the meeting, this court stated:
"We must hold that this meeting, held in the absence of the
objecting taxpayer without giving him the statutory notice
thereof, had no legal standing, and the testimony given at
such a meeting without cross-examination by the objector
will not serve to support the assessment.
It was jurisdictional error to use it so and jurisdictional
error to confirm the assessment at a meeting illegally held.
No other action confirming the assessment was ever taken by
the board of review, and the 1949 assessment of the
company's personal property, accordingly,
must be set aside."[fn8]
In the instant case, it cannot be determined from the record when
the executive session was held by the board although it appears
that this session occurred immediately following the hearing
at which the appellant appeared.
Thus, it is not clear that notice of the
executive session was required.
It is clear, however, that the appellant was not present at
such session while the assessor was present and testified.
We conclude this executive session was improper under the
circumstances of this case and this amounts to jurisdictional
error on the part of the Board of Review.
This conclusion is fortified by this court's decision in State ex
rel. Cities Service Oil Company v. Board of Appeals,[fn9] where
this court considered the procedure followed before the
board of zoning appeals in the city of Milwaukee.
In that case, the objection was to the holding of
executive sessions by the board.
This court, citing the provisions of Section 62.23(7)(e), Stats.
1959, which governed the meetings of the board of appeals in
zoning cases requiring that all such meetings be open to the
public and also relying on the provisions of the then open
meetings law, Section 14.90, Stats. 1959, stated:
"When the two statutes are construed together we think it
clear that where a municipal board, such as the instant
Board of Appeals, is acting in a quasi-judicial capacity,
all meetings in the nature of hearings held on a pending
appeal must be open to the public, but that closed executive
sessions may then be held for the purpose of deliberating to
determine what decision should be made. . . "[fn10]
We went on to hold that while such executive sessions were
improper, no information had been improperly received at
such session which had influenced the board's decision.
If such information had been received, the case would have been
reversed and the circuit court would have been directed to set
aside the board's decision and remand for further proceedings
in the nature of a new trial.
The court further stated:
"However, we do find that certain occurrences which took
place at some of the board's executive sessions did
violate paragraph 3 of Section 62.23(7)(e) and
Section 14.90, Stats. 1959.
In addition to the members of the board and their counsel
(an assistant city attorney), the building inspector, or a
representative of his office, and a representative of the
city planning commission attended some of these executive
The views of these representatives were communicated to the
board at the closed sessions of the board.
Not only did this exceed the scope of permissible
deliberation at an executive session, but it constituted
improper board conduct even if there had been no statute
Clearly, it is improper for an administrative agency,
when acting in a quasi-judicial capacity, to base a decision
or finding upon evidence or information obtained without the
presence of and notice to the interested parties, and not
made known to them prior to the decision.
See Annotation in 18 A.L.R.2d 552, and 1 Davis,
Administrative Law Treatise, pp. 412-415, Section 7.02,
to such effect.
This principle was recognized by this court in International
Harvester Co. v. Industrial Comm. (1914),
157 Wis. 167, 147 N.W. 53. . . ."[fn11]
The open meeting law in Wisconsin has since been renumbered to
Section 66.77, Stats., but the same provisions as found
in former Section 14.90, have been retained.
In the instant case, we conclude that the action of the Board of
Review was contrary to the provisions of the open meeting law.
Although it is permissible for the board to go into closed
session for the purpose of deliberating after a quasi-judicial
trial or hearing, it is clear the proceedings in the instant
case were not in the nature of mere deliberations.
They were more akin to a continuation of the quasi-judicial
hearing but without the potentially bothersome presence
of the objecting taxpayer.
This was not proper.
Moreover, as recognized in the Cities Service Case, even without
a statute prohibiting it, it is improper for an administrative
agency to base its decision or finding upon evidence or
information obtained without the presence of and
notice to the interested parties.
This is exactly what was done in this case when the Board of
Review heard the statements made by Trilling in support of the
assessment he placed on the appellant's property and attacking
the appellant's own testimony.
By the Court. Ä The judgment appealed from is reversed and the
cause remanded to the circuit court with directions to set aside
the Board of Review's decision and remand the case for further
proceedings in the nature of a hearing before the Board of
[fn1] The Board of Review actually reduced the assessment
placed on the appellant's property by some $5,400.
However, the appellant still feeling the assessment was
too high sought review by certiorari in the circuit court.
[fn2] (1975), 68 Wis.2d 726, 229 N.W.2d 585.
[fn3] Id. at pages 731, 732.
[fn4] (1971), 49 Wis.2d 299, 182 N.W.2d 481.
[fn5] Id. at pages 319, 320.
[fn6] State ex rel. Boostrom v. Board of Review (1969),
42 Wis.2d 149, 166 N.W.2d 184.
[fn7] (19.52), 261 Wis. 599, 53 N.W.2d 795.
[fn8] Id. at page 605.
[fn9] (1963), 21 Wis.2d 516, 124 N.W.2d 809.
[fn10] Id. at page 537.
[fn11] Id. at page 539.
DOLPHIN CITATIONS IN OTHER DECISIONS AND OPINIONS