MILEWSKI V. TOWN OF DOVER

Case Name: Milewski v. Town of Dover

Type of Case: Fourth Amendment, PropertyTax

Court: Racine County Circuit Court; District II Court of Appeals; Wisconsin Supreme Court

Case Number: 2014-CV-1482; 15-AP-1523

Filed On: July 23, 2014

Current Status: Wisconsin Supreme Court declared statutes stripping owners of appeal rights if they refuse to consent to an interior search of their home unconstitutional

Government officials are prohibited from entering your home and searching it without your permission – that’s a bedrock principle of the Fourth Amendment.  As a corollary, government cannot punish people who choose to exercise that constitutional right.  Yet that’s exactly what the Town of Dover, in Racine County, did.

Vincent Milewski and Morganne MacDonald, husband and wife, own a home in the Lorimar Estates subdivision of Dover.  In 2013, Dover officials decided to reassess local property values, hiring Gardiner Appraisal Service, LLC, to do the reassessment.  When Vincent and Morganne refused to allow a Gardiner employee – a complete stranger to them – to search the interior of their house, Gardiner arbitrarily assigned an increased assessment to their property without even bothering to ask them any questions about their home or check if any building permits had been pulled.

When Vincent and Morganne investigated the other assessments in Lorimar Estates, they found something curious.  While 39 of the parcels decreased in value – by an average of 5.81% – 4 parcels increased in value – by an average of 10.01%.  What did those 4 homes have in common?  None of their owners permitted Gardiner to search the interior of the homes.

As if it weren’t bad enough the Town of Dover is punishing Vincent and Morganne for exercising their constitutional rights by raising their assessment, state law punishes them further by refusing to allow them to challenge their assessment before the Board of Review.  Under the law, no matter how arbitrary an assessment might be, if you exercised your constitutional right to refuse to consent to a government search, you have absolutely no right to challenge it.

On behalf of Vince and Morganne, WILL sued the Town of Dover and Gardiner.  After cross-motions for summary judgment, the circuit court sided with the defendants, dismissing the case.  The judge concluded that the plaintiffs had not submitted sufficient evidence that they were punitively assessed, and that they could not challenge their assessment in court because they had failed to allow the assessor to come in.  The court felt that limitation was constitutional because the plaintiffs knew the consequences ahead of time and still chose to exercise their constitutional rights.

The plaintiffs appealed, garnering significant interest.  The Wisconsin Realtors Association, the Institute for Justice, and the Wisconsin Department of Justice filed amicus briefs in support of the plaintiffs.  In a split decision, the Wisconsin Supreme Court reversed the lower courts, with four justices agreeing that the plaintiffs’ constitutional rights were violated, a fifth concluding that the statutes do not require an interior view, and two justices in dissent.

On remand to the circuit court, the parties settled the remaining issue of the propriety of the assessment, with the Town paying the plaintiffs’ damages, costs, and attorney fees.

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