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



DOLPHIN, Appellant,



v.



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

Waukesha county.



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

assessment roll.



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

objection.



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.



He observed:



(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

still further.

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. . . ."

     (Citations omitted.)[fn3]



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 objection.

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

act.



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

     sessions.



     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

     prohibiting it.



     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]

     (Emphasis added.)



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

Review.



[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