Brown County v. Brown County Taxpayers Association

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Appeal No. 2020AP940 Cir. Ct. No, 2018C 640
WISCONSIN COURT OF APPEALS

DISTRICT Il
BROWN COUNTY,
PLAINIIFF-RESPONDENT,
V.
BROWN COUNTY TAXPAYERS ASSOCIATION AND FILED
FRANK BENNETT,
MAR 3, 2021
DEFENDANTS- THIRD-PARTY
PLAINIIFFS-APPELLANTS, Sheila T. Reiff
Clerk of Supreme Court
V.

PETER BARCA, SECRETARY, WISCONSIN DEPARTMENT
OF REVENUE,

‘THIRD-PARTY DEFENDANT-RESPONDENT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Stark, PJ., Hruz and Seidl, JJ.

Pursuant to WIS. STAT. RULE 809.61 (2017-18), this appeal is
certified to the Wisconsin Supreme Court for its review and detennination.

ISSUE

Does the sales and use tax Brown County enacted in 2017 and

implemented as part of its 2018 budget process “directly reduce the property tax

No. 2020AP940
2
levy,” as required by WIS. STAT. § 77.70 (2015-16),1 if the proceeds are
designated to fund new capital projects that collectively would otherwise exceed
the levy limits established by WIS. STAT. § 66.0602, but the County could
otherwise fund the projects by borrowing?
BACKGROUND
The relevant facts are undisputed. On May 17, 2017, the Brown
County Board of Supervisors, relying on WIS. STAT. § 77.70, enacted a temporary
sales and use tax ordinance (the “Ordinance”) that established a 0.5% sales and
use tax on purchases made in Brown County for a period of seventy-two months.
The Ordinance stated that the tax would be “utilized only to reduce the property
tax levy by funding” nine specific capital projects and their associated costs.2
(Emphasis omitted.) The Ordinance also contained provisions that would sunset
the sales and use tax prior to seventy-two months in any year where the mill rate
exceeded the 2018 rate3 or where the County issued any general obligation debt,
1 All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise
noted. This was the version of the statutes in effect at the time Brown County passed the sales
and use tax ordinance at issue. WISCONSIN STAT. § 77.70 was amended in 2017, but those
amendments became effective after the ordinance was passed, and the parties do not argue the
amendments to this or any other statutes are material except as they pertain to legislative
acquiescence in the longstanding interpretation of § 77.70 as authorizing Brown County’s actions.
2 Specifically, the projects and estimated costs were as follows: (1) $15 million for an
“Expo Hall Project”; (2) $60 million for “Infrastructure, Roads and Facilities Projects”; (3) $20
million for “Jail and Mental Health Projects”; (4) $20 million for a “Library Project”; (5) $10
million for “Maintenance at Resch Expo Center”; (6) $10 million for “Medical Examiner and
Public Safety Projects”; (7) $1 million for a “Museum Project”; (8) $6 million for a “Parks and
Fairgrounds Project”; and (9) $5 million for a “Stem Research Center Project.”
3 “Mill rate” refers to a figure representing the amount per $1,000 of the assessed value
of property, which is used to calculate the amount of property tax. Milewski v. Town of Dover,
2017 WI 79, ¶47 n.18, 377 Wis. 2d 38, 899 N.W.2d 303.

No. 2020AP940
3
excluding refinancing bonds. In other words, if the County issued additional debt
or increased property taxes, the sales and use tax would expire.
Brown County’s 2018 budget estimated the sales and use tax would
generate $22,469,183 in revenue that year. Of that amount, the budget allocated
$17,895,065 to be spent on the identified capital projects, including medical
examiner and jail infrastructure, highway maintenance, and library expansion and
relocation. The board of supervisors and county executive approved the budget in
November 2017.
Following the budget’s adoption, the Brown County Taxpayers
Association and Frank Bennett (the “Association”) commenced a lawsuit seeking
a declaratory judgment that the Ordinance was invalid. That lawsuit was
dismissed without prejudice in March 2018 based upon the Association’s failure to
provide a proper notice of claim under WIS. STAT. § 893.80. The Association
subsequently filed a notice of claim seeking “an acknowledgment by Brown
County that the Tax is illegal” and “the cessation of any and all actions by the
County to levy, enforce or collect the Tax or spend any revenue from the Tax on
the projects the County has proposed.” The County disallowed the claim and filed
the present action seeking a declaratory judgment that the Ordinance and 2018
budget were valid and enforceable. The Association counterclaimed, seeking
injunctive and declaratory relief regarding the Ordinance’s validity.
The parties filed cross-motions for summary judgment. In its ruling
on the motions, the circuit court began by analyzing WIS. STAT. § 77.70, under
which the Association claimed the sales and use tax was unlawful. In relevant
part, the statute provides that a sales and use tax “may be imposed only for the
purpose of directly reducing the property tax levy.” Id. The court framed the

No. 2020AP940
4
issue as one of statutory interpretation, and it noted that, in 1998, the Wisconsin
Attorney General had issued a formal opinion regarding the meaning of the
restriction in § 77.70. See Wis. Op. Att’y Gen. OAG 1-98, 1 (1998).4
The attorney general reached several key conclusions. First, he
noted that some counties had been including the proceeds of a sales and use tax as
a line item revenue source in the county budget alongside the countywide property
tax levy. Id. at 2. Other counties had “budgeted the net proceeds of the sales and
use tax as a revenue source used to offset the cost of individual items contained in
the county budget.” Id. The attorney general opined that “[t]he same amount of
countywide property tax reduction occurs” regardless of which of these budgeting
processes a county uses. Id.
Second, the attorney general concluded that, despite the “only for the
purpose of directly reducing the property tax levy” restriction contained in WIS.
STAT. § 77.70, a sales and use tax under the statute could be used to fund new
projects. Wis. Op. Att’y Gen. OAG 1-98 at 2. The attorney general stated that it
would be absurd to interpret the statute in a way that prohibited some counties
from spending sales and use tax revenue on projects that had not yet begun, while
other counties were allowed to spend that revenue on similar projects by the mere
happenstance that they had already initiated the projects using property taxes. He
concluded that because there was “no such county-by-county limiting language in
the statute,” counties could “therefore also budget the net proceeds of the sales and
4 The attorney general’s opinion is available at: https://www.doj.state.wi.us/sites/default/
files/dls/ag-opinion-archive/1998/1998.pdf.

No. 2020AP940
5
use tax as an offset against the cost of any individual budgetary item which can be
funded by the countywide property tax.” Id.
Third and finally, the attorney general, interpreting the word
“directly” in WIS. STAT. § 77.70, concluded that the restriction “has meaning in
those instances where budgetary items cannot be funded through a countywide
property tax”—for example, where taxpayers in certain jurisdictions were
permitted by statute to exempt themselves from a county property tax levy for
funding public library services. Wis. Op. Att’y Gen. OAG 1-98 at 3. “Although
any revenue source frees up other funds to be used for other budgetary purposes,
the budgeting of sales and use tax proceeds to defray the cost of items which
cannot be funded by a countywide property tax constitutes indirect rather than
direct property tax relief.” Id.
Based on the foregoing, the circuit court noted that the Association
was implicitly rejecting the attorney general’s opinion by asserting that only a
dollar-for-dollar reduction in the property tax levy would suffice under WIS. STAT.
§ 77.70. Relatedly, this rejection of the attorney general’s opinion allowed the
Association to posit that “funding projects not in existence at the time of the sales
and use tax is impermissible.”
Moreover, the Association argued that even if the attorney general’s
opinion was correct, Brown County’s sales and use tax was nonetheless invalid
because in 2005 the legislature implemented the property tax levy limit contained
in WIS. STAT. § 66.0602. See 2005 Wis. Act 25, § 1251c. Generally speaking,
that statute restricted the increase in the amount of the levy to the value of new
construction. See § 66.0602(1)(d), (2). The Association reasoned that because the
County was limited to a levy increase of approximately $4.45 million under the

No. 2020AP940
6
statute, it could not have funded the approximately $18 million in new capital
projects in the 2018 budget through the countywide property tax. Brown County’s
property tax levy in 2018 was $90,676,735—an increase over the 2017 levy of
$86,661,972, but approximately $438,000 less than the increase allowed under
§ 66.0602.
The circuit court ultimately rejected the Association’s arguments,
concluding that WIS. STAT. § 77.70 did not require that a sales and use tax be used
to achieve a dollar-for-dollar reduction in the amount of the property tax levy.
The court observed that § 77.70 was an enabling statute and that the language of
the restriction therein was not as “cut and dry” as the Association suggested. It
pointed to two specific sales and use taxes authorized by the legislature regarding
major Wisconsin stadiums, noting that, unlike § 77.70, both statutes had explicitly
identified what the revenue could be used for (in those cases, retiring stadium
district debt). See WIS. STAT. §§ 77.705 and 77.706. The court also noted that the
legislature had not amended § 77.70 at the time it enacted WIS. STAT. § 66.0602
despite the fact that § 66.0602, unlike § 77.70, included explicit instructions that a
levy limit must be reduced by the amount of certain types of revenue. In all, the
court found it “unreasonable and absurd … [to read] mechanisms into … [§] 77.70
that the Wisconsin Legislature did not place there, though it had the opportunity
and know-how to do it.”
The circuit court offered several additional rationales in support of
its interpretation of WIS. STAT. § 77.70. It opined that the practical effect of the
Association’s arguments was to “usurp the decisions of the County’s elected
officials,” who had concluded that the statutory purpose of directly reducing the
property tax levy was met. Moreover, as alluded to above, the court gave
significant weight to the 1998 attorney general’s opinion, and it again found its

No. 2020AP940
7
interpretation was buttressed by the legislature’s decision not to amend § 77.70
despite widespread implementation of sales and use taxes among Wisconsin’s
counties.
Lastly, the circuit court addressed the Association’s argument that
the County could not spend sales and use tax proceeds on any new projects that
would have exceeded the levy limits contained in WIS. STAT. § 66.0602 if funded
by property taxes. The court expressly found this argument by the Association to
be “the most compelling.” In response, the court, again, concluded that the
legislature had “delegated the discretion to Wisconsin Counties to determine the
way in which they would directly reduce their property tax levy with sales and use
tax revenue” and that there was no dollar-for-dollar offset required by WIS. STAT.
§ 77.70. The Association’s interpretation was unreasonable, in the court’s view,
because the legislature placed no restrictions on borrowing, meaning that
cash-strapped counties that could not enact a sales and use tax would likely
borrow money to fund new projects. As a result, the costs of such projects would
rise, and the statutory purpose of reducing the property tax burden would not be
achieved. As the court noted, the Ordinance here included sunset provisions
meant to ensure that the property tax levy remained the same or lower during the
term in which the sales and use tax was in effect.
The Association filed a motion for reconsideration, noting the circuit
court’s incorrect assumptions regarding the degree of the Association’s contacts
with County officials prior to their enacting the sales and use tax. The court
denied the motion, but it clarified that the Association’s pre-litigation efforts were
“immaterial … because they do not change in any way the Court’s analysis or
conclusion that as a matter of law, a dollar-for-dollar offset of the property tax
levy by Ordinance proceeds is not the only lawful operation of Wisconsin Statutes

No. 2020AP940
8
section 77.70.” The court stated it would continue to credit the “well-reasoned
and ‘presumptively correct’” attorney general opinion until the legislature gave a
clear indication of its intent to override that existing interpretation.
The circuit court entered judgment in favor of the County and
dismissed the Association’s counterclaim and third-party complaint against the
Wisconsin Department of Revenue (“the Department”). The Association appeals,
and we now certify the appeal to the Wisconsin Supreme Court under WIS. STAT.
RULE 809.61 (2017-18).
DISCUSSION
This case concerns the interpretation and application of WIS. STAT.
§ 77.70 and, to a lesser extent, WIS. STAT. § 66.0602. Matters of statutory
interpretation and application present questions of law that are reviewed
independently. Jefferson v. Dane Cnty., 2020 WI 90, ¶13, 394 Wis. 2d 602, 951
N.W.2d 556. If the statutory language gives rise to a plain meaning, we ordinarily
stop the inquiry and credit that meaning. Brey v. State Farm Mut. Auto. Ins. Co.,
2020 WI App 45, ¶13, 393 Wis. 2d 574, 947 N.W.2d 205. We give statutory
language its common, ordinary and accepted meaning; we interpret the language
in the context of surrounding or closely related statutes; and we avoid
interpretations that produce absurd or unreasonable results. State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d
110.
I. Interpreting WIS. STAT. § 77.70
WISCONSIN STAT. § 77.70 was enacted in 1969. See 1969 Wis.
Laws, ch. 154, § 279m. Although the statute has always permitted counties to

No. 2020AP940
9
enact sales and use taxes, until 1985 the Department—which is responsible for
levying, enforcing, and collecting sales and use taxes—was required to distribute
the tax proceeds to towns, cities and villages within a county, not to the county
itself. See WIS. STAT. § 77.76(4) (1969-70). In 1985, the legislature made
counties the recipients of the sales and use tax proceeds. 1985 Wis. Act 29,
§ 1500x. The parties agree that following this change, counties widely embraced
sales and use taxes as a funding mechanism.5
At the time Brown County passed the sales and use tax at issue, WIS.
STAT. § 77.70 provided, in relevant part:
Any county desiring to impose county sales and use taxes
under this subchapter may do so by the adoption of an
ordinance, stating its purpose and referring to this
subchapter. The rate of the tax imposed under this section
is 0.5 percent of the sales price or purchase price. The
county sales and use taxes may be imposed only for the
purpose of directly reducing the property tax levy and only
in their entirety as provided in this subchapter.
(Emphasis added.) The Association’s argument is premised primarily on the
italicized language, which it contends unambiguously renders the County’s
application of its sales and use tax proceeds unlawful.
Specifically, the Association argues the italicized language operates
as a restriction on the expenditure of sales and use tax funds, and it does so in a
particular manner. In the Association’s view, all revenue generated by the sales
5 The parties disagree about what the counties understood WIS. STAT. § 77.70 to require
between the 1985 revision and the 1998 attorney general opinion, as reflected in the various
ordinances the counties adopted. Insofar as any conclusions in that respect can be drawn from the
content of the ordinances, we do not regard such information about the historical practices of
counties during this time period as significant to the statutory interpretation issue presented.

No. 2020AP940
10
and use tax must be applied as a dollar-for-dollar reduction in the property tax
levy. The Association reads the clause as
mandating two things: (i) a county may apply the tax only
to attain the object of diminishing the amount of the
property tax levy; and (ii) this diminishment must occur by
the shortest route possible from the source—that is, from
the collection of the sales tax revenue—without any
intervening steps.
In other words, the Association argues the process laid out in the statute is to first
“impose the sales tax,” and second “decrease the property tax levy by the amount
of the proceeds.”
As a corollary, the Association contends that sales and use tax
revenue cannot be used to fund new projects—at least, not projects that the County
did not previously fund by using the property tax levy. The word “directly” in the
statute, according to the Association, means a county must “first obtain non-sales
tax funding for [a] project before funding it with sales tax revenue.” Otherwise,
that county has engaged “in the intervening step of funding new spending items
with the revenue,” in which case, the Association argues, the county has not
achieved any reduction—especially not “directly”—but, rather, merely avoided an
increase. The Association contends a sales and use tax is unlawful unless the
property tax levy has “actually diminished.”
The Association acknowledges that its interpretation of WIS. STAT.
§ 77.70 runs headlong into the attorney general’s 1998 opinion. The attorney
general rejected the interpretation that a direct reduction in the property tax levy
can only occur in the manner the Association suggests. Rather, as explained
above, the attorney general concluded that although a county could achieve the
goal of a direct property tax reduction by a dollar-for-dollar offset of sales and use

No. 2020AP940
11
tax proceeds against the property tax levy, that goal could also be achieved by
offsetting the cost of individual items in the county budget. See Wis. Op. Att’y
Gen. OAG 1-98 at 2. As to the latter point, the attorney general concluded it
would be absurd to interpret § 77.70 as requiring that sales and use tax revenue
could be used only to fund preexisting projects. Wis. Op. Att’y Gen. OAG 1-98
at 2. And, responding to the argument that this interpretation would read the word
“directly” out of the statute, the attorney general concluded that the “direct”
requirement still retained meaning in instances where a particular item is
prohibited by law from being funded through the property tax levy. Id. at 3.
We tend to agree with the attorney general’s well-reasoned opinion,
which is of significant persuasive value. See Schill v. Wisconsin Rapids Sch.
Dist., 2010 WI 86, ¶126, 327 Wis. 2d 572, 786 N.W.2d 177. By its plain
language, WIS. STAT. § 77.70 speaks of a legislative purpose to achieve a direct
reduction in the property tax levy in counties that choose to enact a sales and use
tax. The statute does not specifically endorse a “dollar-for-dollar” methodology in
budgeting for achieving this purpose, nor does the statute explicitly prohibit
counties from using sales and use tax revenue to fund new projects. The attorney
general’s conclusion that § 77.70 restricts the expenditure of sales and use tax
revenue to items that may otherwise be funded by property taxes is sensible.
Moreover, “a statutory interpretation by the attorney general ‘is
accorded even greater weight, and is regarded as presumptively correct, when the
legislature later amends the statute but makes no changes in response to the
attorney general’s opinion.’” Schill, 327 Wis. 2d 572, ¶126 & n.61 (quoting
Staples for Staples v. Glienke, 142 Wis. 2d 19, 28, 416 N.W.2d 920 (Ct. App.
1987)); Voice of Wis. Rapids, LLC v. Wisconsin Rapids Pub. Sch. Dist., 2015 WI
App 53, ¶11, 364 Wis. 2d 429, 867 N.W.2d 825. Following the attorney general’s

No. 2020AP940
12
1998 opinion, WIS. STAT. § 77.70 has been substantively amended four times, with
the legislature making no change in the relevant language.6 As the County notes,
for over twenty-two years counties have relied upon the attorney general’s
interpretation as the definitive interpretation of § 77.70 for purposes of setting
budgets. Additionally, the County and circuit court noted neither the legislature
nor the Department has provided any mechanism for offsetting in the manner the
Association suggests is required.7
If the foregoing were the extent of the parties’ arguments, we doubt
certification would be warranted. The Association argues, however, that if we
give the attorney general’s opinion persuasive or presumptive value—as we would
under existing precedent of Schill and other cases—it will seek supreme court
review and argue that “this proposition of law is erroneous and should be
overruled.” The Wisconsin Supreme Court is the only state court with the power
to overrule, modify or withdraw language from a previous supreme court or
published court of appeals opinion. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997).
The attorney general’s opinion aside, the parties present different
characterizations of the relevant language in WIS. STAT. § 77.70. The County
views the statute as containing “enabling language” that permits counties to
6 See 2009 Wis. Act 2, § 521; 2009 Wis. Act 28, § 1856d; 2017 Wis. Act 17, § 25; 2017
Wis. Act 58, § 34e.
7 The County states that it lacks authority to award tax credits to any individual property
owner. The circuit court noted the absence of any legislative guidance on how to otherwise
account for sales and use tax revenue in a budget. Specifically, the court stated it was not clear
“whether a county must draft its budget based on estimated sales and use tax revenue, or whether
it must bank that revenue for a year and then proceed using a liquidated figure.”

No. 2020AP940
13
impose a sales and use tax, but does not require that they spend the revenue
generated from that tax in any particular way. Rather, the County argues that the
statute allows a degree of legislative discretion regarding what uses of the funds
will achieve a reduction in the property tax levy, and it argues the uses here
comply with the spirit of the legislation and have the intended effect. This
argument has some foundation in the statutory language—rather than writing an
explicit restriction on the manner in which tax revenue may be used, the
legislature instead wrote that the tax can be imposed “only for the purpose of
directly reducing the property tax levy.” Sec. 77.70 (emphasis added).
The Association counters that even if one characterizes WIS. STAT.
§ 77.70 as an enabling statute, such a statute can still operate as a restriction by
requiring a county to impose the tax in a certain way and within certain
limitations. It contends that any deference to the judgment of a county legislative
body as to what accomplishes a reduction in the property tax levy—save, of
course, merely subtracting the amount of sales and use tax revenue from the
levy—amounts to no restriction at all on the use of that revenue. Although the
Association acknowledges that some language in the statute supports the County’s
argument, it cautions against applying a “hyperliteral” interpretation that focuses
on the intent of the body authorizing the tax.
II. The meaning of WIS. STAT. § 77.70 in the context of WIS. STAT. § 66.0602
More importantly, at least in our view, the Association presents a
novel argument that the sales and use tax Brown County implemented is invalid
even under the attorney general’s interpretation of WIS. STAT. § 77.70. This
argument turns on WIS. STAT. § 66.0602, which was enacted in 2005, seven years
after the attorney general issued his opinion. See 2005 Wis. Act 25, § 1251c. That

No. 2020AP940
14
statute, as relevant here, restricts the amount by which a county may increase its
property tax levy year-over-year “to the greater of either the percentage change in
the political subdivision’s January 1 equalized value due to new construction less
improvements removed between the previous year and the current or … [z]ero
percent.” Sec. 66.0602(1)(d), (2). In other words, a county must continue its
existing property tax levy unless an increase is warranted by the value of new
construction. The levy limit is subject to exceptions, including a vote to exceed
the limit by referendum. See § 66.0602(3), (4), (5).
In focusing on WIS. STAT. § 66.0602, the Association references the
attorney general’s conclusion that the word “directly” in WIS. STAT. § 77.70
prohibits counties from spending sales and use tax proceeds on any items that may
not be funded by the countywide property tax, such as public library services for
municipalities with existing services. See Wis. Op. Att’y Gen. OAG 1-98 at 3. It
further notes, apparently correctly, that the attorney general’s opinion presumes
that counties can raise property taxes at will, which, at least theoretically, they
could before 2005. The Association asserts that the County’s levy limit increase
for 2018 was between approximately $1 and $4 million, and therefore the County
“could not have raised its property tax levy to pay for [the approximately $18
million in] new spending” in 2018 for projects being funded by the sales and use
tax. In essence, the Association argues that the County’s sales and use tax could

No. 2020AP940
15
fund only new projects whose cost in any given year falls within the levy limit
increase permissible under § 66.0602.8
As a result, the Association reasons that by operation of WIS. STAT.
§ 66.0602, at least some of the sales and use tax revenue generated does not and
cannot “directly” reduce the property tax levy under WIS. STAT. § 77.70 because
the revenue is being allocated to projects that, by law, could not be funded using
the property tax levy in a particular year. The Association rhetorically asks,
“[H]ow can the County increase spending by [$18 million] in one year, when it
only has room for [$1 million] under its levy limit, and still contend that it is
somehow reducing the property tax levy?”
Brown County’s answer is that the sales and use tax still achieves
savings for property owners in several ways, notwithstanding the County’s levy
limit increase for a particular year under WIS. STAT. § 66.0602. Primarily, the
County asserts that if it had “not funded its needed capital improvements through a
8 Despite the limited amount of revenue that may be generated from the sales and use tax
under the Association’s interpretation, WIS. STAT. § 77.70 requires that a sales and use tax be
imposed “only in its entirety,” meaning 0.5% of the sales or purchase price. This requirement
raises questions regarding: (1) how counties going forward could properly budget, each year,
their collection of sales taxes so as to comply with the Association’s proposed holding; (2)
whether—either administratively or lawfully—sales and use tax revenue could be “capped” once
the revenue it generates hits a particular county’s permitted levy limit increase; and (3) in all
events, how and whether the legislature or the Department would provide guidance to counties,
were a court to adopt the Association’s arguments, either in whole or in part.

No. 2020AP940
16
sales and use tax, it would have funded them through issuing debt.”9 WISCONSIN
STAT. § 66.0602(3)(d)2. specifically excludes from the levy limit “amounts levied
by a political subdivision for the payment of any general obligation debt service.”
According to the County, if it had financed its capital projects through borrowing,
the interest payments would have cost taxpayers more than $13.5 million over the
life of the Ordinance, and $47 million over the life of the loans. According to the
County’s evidentiary submissions, this approach would have eventually caused an
increase in property taxes, whereas the sales and use tax will result in an overall
decrease in taxes for Brown County property owners (approximately $140
between 2018 and 2023 on a median-value home). Moreover, the County notes
that additional borrowing could imperil a county’s credit rating.
The County points out an additional flaw that it perceives in the
Association’s interpretation of the joint operation of WIS. STAT. §§ 77.70 and
66.0602. The County notes that § 66.0602(2m) provides for a “[n]egative
adjustment” to a county’s levy limit for certain types of fee revenue, payments, or
debt reduction the County receives, but that subsection does not explicitly require
a reduction in the levy limit for sales and use tax revenue. The Association argues
that such a provision in § 66.0602 would have been pointless because it interprets
9 Bradley Klingsporn, Brown County’s finance director, averred that the County would
have issued debt to fund the projects. The Association does not dispute that borrowing was a
potential alternative funding mechanism. Instead, the Association responds that it is not clear the
County would have borrowed the funds and that Klingsporn’s averment to the contrary is not
supported by personal knowledge. In other words, the Association argues that because the
County did not authorize borrowing (because it enacted the sales and use tax instead), Klingsporn
could not aver that the County would have authorized borrowing. The quarreling about
Klingsporn’s prognosticative abilities aside, what appears material is that borrowing was a
potential alternative funding mechanism, not whether the County would actually have engaged in
such borrowing given all of the considerations attendant to that decision under an alternative set
of facts.

No. 2020AP940
17
§ 77.70 as requiring an offset, but, as the County contends, one would expect a
greater degree of legislative clarification in § 66.0602 given the attorney general’s
existing opinion of § 77.70 to the contrary. Cf. Heritage Farms, Inc. v. Markel
Ins. Co., 2009 WI 27, ¶40, 316 Wis. 2d 47, 762 N.W.2d 652 (“We generally
presume that when the legislature enacts a statute, it is fully aware of the existing
laws.”).10
The amicus Wisconsin Counties Association stresses that the
statutory issue presented by this appeal is an issue of profound statewide
significance. According to the amicus, nearly all Wisconsin counties have enacted
a sales and use tax pursuant to WIS. STAT. § 77.70 in reliance on the attorney
general’s 1998 opinion. The amicus argues that “[a]ltering the longstanding
interpretation of [§ 77.70] would upend the decades-long understanding of the law
and introduce uncertainty to a critically important county function—budget
setting.”
Relatedly, the amicus predicts disastrous consequences for
Wisconsin counties should the Association’s interpretation of WIS. STAT. § 77.70
prevail, presumably either in full or in part. The amicus predicts county budget
shortfalls across the state, decimating essential services like child welfare, health
services, and law enforcement. Additionally, according to the amicus, the
Association’s interpretation is doubly destructive because of the manner in which
WIS. STAT. § 66.0602 operates—namely, its function in setting the previous year’s
property tax levy as the baseline for the following year. Thus, “a dollar-for-dollar
10 The amicus Wisconsin Counties Association notes that WIS. STAT. § 66.0602 has been
repeatedly amended since its enactment with no indication that the legislature regarded the
attorney general’s opinion as wrong.

No. 2020AP940
18
offset would not only reduce the current year’s levy, it would automatically and
artificially lower a county’s maximum available levy for the following year.” The
amicus argues the legislature could not have intended to create an exponential
funding crisis for Wisconsin’s counties by the interaction of §§ 77.70 and 66.0602.
We note two things from the foregoing argument by the amicus,
both of which militate in favor of supreme court review of this case in the first
instance. First, amicus’s arguments in these regards cannot be gainsaid, as the
Association often seems to do, and the consequences could be dramatic. But, if
the court were to determine that the plain language of WIS. STAT. § 77.70—and/or
its interaction with WIS. STAT. § 66.0602—compels the Association’s
interpretation, the amicus’s concerns are arguably inconsequential from a statutory
interpretation standpoint. See Anderson v. Aul, 2015 WI 19, ¶107, 361 Wis. 2d
63, 862 N.W.2d 304 (Ziegler, J., concurring, on behalf of a majority of the court)
(“[A]lthough a court may consider whether a particular interpretation of a statute
would produce an absurd or unreasonable result, a court may not balance the
policy concerns associated with the ‘consequences of alternative
interpretations.’”). The supreme court is in the best position to weigh the
significance of the amicus’s concerns vis-à-vis the proper interpretation of the
relevant statutes.
Second, and relatedly, we further note that, if a court were to adopt
the Association’s view (again, either in whole or in part), the circumstances of this
case might lend themselves to only a prospective application of the court’s
holding—i.e., “sunbursting.” See State ex rel. Buswell v. Tomah Area Sch. Dist.,
2007 WI 71, ¶¶46-47 & n.12, 301 Wis. 2d 178, 732 N.W.2d 804; but see Heritage
Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶¶45-47, 339 Wis. 2d 125, 810
N.W.2d 465 (declining to sunburst where the resolution of the appeal did not

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require overruling any past precedent but was merely a novel issue of statutory
interpretation). The decision to “sunburst” is clearly within the supreme court’s
province, given that it is a question of policy and involves balancing the equities
peculiar to a particular case or rule so as to mitigate hardships that may occur in
the retroactive application of new rules. Colby v. Columbia Cnty., 202 Wis. 2d
342, 364-65, 550 N.W.2d 124 (1996).
Returning to the merits, the amicus argues the Association’s
interpretation results from a misunderstanding of how sales and use taxes generate
revenue. The County’s sales and use tax undoubtedly results in higher prices for
goods and services that residents purchase within the County, but the sales and use
tax also collects from a broader purchaser base that includes nonresidents.
Because the County receives funds from nonresidents, County property taxpayers
receive a corresponding amount of tax relief. The amicus supports this view with
specific examples of counties that saw reductions in mill rates after enacting sales
and use taxes. Accordingly, the amicus argues that the Association’s
interpretation of WIS. STAT. § 77.70, to the extent it requires borrowing to fund
County operations, places County residents in a worse position. For its part, the
Association submits that most of the foregoing considerations are beside the point
if the plain language of § 77.70, alone or in combination with WIS. STAT.
§ 66.0602, requires those results.
Another aspect of this case compels the Wisconsin Supreme Court’s
review. Intertwined with the merits of the basic statutory interpretation arguments
is a judgment as to what, if any, significance to accord to legislative inaction
following the 1998 attorney general opinion. Jurisprudence regarding legislative
inaction varies greatly, and there does not appear to be clear guidance from our
state’s high court on how lower courts should regard it. Compare Estate of Miller

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v. Storey, 2017 WI 99, ¶¶51-52 & n.20, 378 Wis. 2d 358, 903 N.W.2d 759
(applying the legislative acquiescence canon of construction and noting that such
application was warranted by Wisconsin law), with Wenke v. Gehl Co., 2004 WI
103, ¶¶31-37, 274 Wis. 2d 220, 682 N.W.2d 405 (declining to apply the canon and
opining on its deficiencies). Moreover, here we have the unique circumstance
where the legislature has not failed to act in relation to a precedential decision of
one of our state’s appellate courts but, rather, only in relation to an attorney
general opinion, albeit a long-standing opinion on a statutory matter of clear
statewide significance.
Finally, the County, the Department, and the amicus all raise
concerns about the potential remedy if the Association prevails. This contingent
issue, should it need to be reached, also warrants consideration and a decision
from our supreme court.
The amicus asserts that adopting the Association’s interpretation of
WIS. STAT. § 77.70 places most Wisconsin counties in immediate violation of
WIS. STAT. § 66.0602, which, it maintains, will trigger a corresponding reduction
in state aid for the following year. See § 66.0602(6)(a). According to the amicus,
the penalty provision would exacerbate the “calamity” resulting from the baseline
reduction in the property tax levy, requiring the supreme court to rewrite or
suspend portions of § 66.0602 and craft a remedy without any indicia of legislative
guidance. As the amicus notes, the Association does not clarify what it believes
the appropriate remedy should be. Despite this omission, the Association suggests
an additional “remedy phase of litigation” might be necessary.
The Department, which is also a party in this case, states that it takes
no position on the merits of the appeal but that it has “concerns about the potential

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remedy, should Brown County’s tax be found to violate state law.” The
Department suggests that injunctive relief might not be appropriate, given that the
Association’s allegations concern the way the sales and use tax revenue is used
and not the County’s authority to enact the tax in the first instance. Accordingly,
it submits that a more appropriate remedy could be to order Brown County to
spend the proceeds at issue in a particular way, such as for property tax relief.
The Department, moreover, explains that it is responsible for the
collection of sales and use tax proceeds. Retailers report and remit their sales and
use taxes to the Department, and the Department then makes distributions to the
counties and handles refund claims. In part because state law dictates the notice
and timing of any changes in the tax rates, see WIS. STAT. § 77.61(18) (2017-18),
the Department states that it “would need at least 30 to 60 days to allow it to
inform retailers to stop collecting the tax and retailers to reprogram their software
to stop collection of the tax from their customers.” If the court concludes the tax
is unlawful, the Department therefore requests a remand to the circuit court to
consider the appropriate remedy, as well as instructions to the circuit court to
provide sufficient time for the Department to stop collection of the tax in an
orderly fashion.
CONCLUSION
The Wisconsin Supreme Court “has been designated by the
constitution and the legislature as a law-declaring court.” State v. Grawien, 123
Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App. 1985). “While the court of appeals
also serves a law-declaring function, such pronouncements should not occur in
cases of great moment.” Id. The primary issue presented in this case is triply
novel: whether the attorney general was correct in 1998, what weight should be

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given to his interpretation, and also whether the tax levy limit subsequently
established in WIS. STAT. § 66.0602(2) should affect that interpretation. Given the
profound importance of the issues raised in this appeal, the longstanding
interpretation of WIS. STAT. § 77.70 (on which many counties have relied), the
potential budgetary consequences for Wisconsin’s counties, the need for clarity
regarding the interaction of §§ 77.70 and 66.0602, and issues regarding a potential
remedy, we believe this is a case in which it would be appropriate for the supreme
court, rather than the court of appeals, to render a decision. A decision by the
supreme court “will help develop, clarify or harmonize the law,” WIS. STAT. RULE
809.62(1r)(c) (2017-18), thereby providing much needed guidance to Wisconsin
residents, attorneys, and lower courts.