Even shorter than the case "briefs" I've been posting, these summaries - lifted straight from appeals documents - allow me to cover even more cases. Each summary will include a link to the relevant brief or document for anyone interested in reading more. My insertions are in italics.
The case: Wisconsin Manufacturers and Commerce (WMC) v Village of Pewaukee
Case no.: 23AP690
Filed in: Wisconsin Supreme Court, petition for review
From Court of Appeals: District II
Circuit Judge: Michael Aprahamian, Waukesha County
Court of Appeals: District II, Appellate Judges Mark Gundrum, Maria Lazar, Lisa Neubauer; opinion by Lazar
Filing Attorney: Scott Rosenow
This summary is about Pewaukee's seeking state Supreme Court review of a decision striking down the village's transportation utility fee. I posted a summary of Pewaukee's petition for review earlier this week and it is here. A post about the Court of Appeals' decision at issue is here. I also corrected an error; Appellate Judge Lisa Neubauer, and not Shelley Grogan, was a member of the District II appeals court panel that heard the case.
Introduction
Apparently, the Village of Pewaukee is unhappy that this Court unanimously struck down municipalities’ use of “transportation utility fees” (TUFs) in Wisconsin Property Taxpayers, Inc. v Town of Buchanan. But that displeasure is not a reason for this Court to reconsider the issue it resolved in Town of Buchanan. That recent decision was correct, and the Court of Appeals simply applied it here. Like Buchanan, Pewaukee needs to find a lawful way to raise revenue for street repair. This Court should deny the petition for review.
Argument
A. This case is a straightforward application of this Court’s recent, unanimous decision in Town of Buchanan.
In Town of Buchanan, this Court unanimously agreed with the argument that “Wisconsin statutes do not authorize municipalities to impose a TUF on property owners based on estimated use of the municipality’s roads.”
The Court held that, despite being labeled a fee, the town’s TUF was a property tax. As a property tax, the town’s TUF was unlawful for several reasons: it was not calculated based on property value, it applied to tax-exempt property, and it exceeded the levy limit. ...
Here, the Court of Appeals simply held that Pewaukee’s “TUF is an impermissible tax under our supreme court’s decision in Town of Buchanan.”
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The Court of Appeals ... correctly noted that this Court in Town of Buchanan had decided that the town’s TUF was a tax: “the court explicitly held that ‘[t]he parties are correct’ on this issue, citing case law . . . to explain its conclusion that ‘the TUF is a tax because the Town imposed it on a class of residents for the purpose of generating revenue.’”
Second, the Court of Appeals correctly held that municipal home-rule authority was legally irrelevant here because “a village may not adopt a tax under its home rule authority.” That principle is correct. As this Court recently explained, municipalities “may only enact the types of taxes authorized by the legislature.” That rule is a limitation on municipal home-rule authority.
Third and finally, the Court of Appeals correctly held that Pewaukee’s TUF was indistinguishable from the TUF in Town of Buchanan. The court noted that Pewaukee’s argument rested on “scant evidence” and lacked citation to legal authority. Pewaukee’s undeveloped argument does not merit this Court’s review.
B. Despite being published, the Court of Appeals opinion broke no new ground.
Initially, the Court of Appeals issued a summary disposition in this case. At first blush, a summary disposition made sense here because this case is a “straightforward” application of Town of Buchanan.
Still, Wisconsin Manufacturers and Commerce Inc. (WMC) filed a motion requesting the Court of Appeals to withdraw its summary disposition and issue an authored opinion recommended for publication. In its motion, WMC argued that a published Court of Appeals opinion was warranted here because several municipalities were flouting this Court’s recent, unanimous decision in Town of Buchanan. As explained in that motion, even after this Court decided Town of Buchanan, municipalities were either continuing to enforce their TUFs or considering adopting TUFs. The Court of Appeals granted WMC’s motion and issued an opinion that was recommended for publication. The opinion was ordered published on April 24.
This published Court of Appeals opinion should adequately show that the Town of Buchanan decision applies outside the Town of Buchanan. There is nothing for this court to add. ...
A legitimate user fee, which is allowed, is “a voluntary fee ‘in the sense that the party who pays it originally has, of his own volition, asked a public officer to perform certain services for him, which presumably bestow upon him a benefit not shared by other members of society,’” WMC argued, citing various court cases.
A municipality imposes a tax in its governmental capacity for the public’s general benefit, whereas a municipality imposes a fee for services in its proprietary capacity for a private benefit. ...
Here, Pewaukee’s TUF is a tax, just like the Town of Buchanan’s TUF. Pewaukee’s TUF is involuntarily imposed on all developed property within the village to pay for road repair and related expenses. Road repair benefits the public generally, including out-of-towners who drive through Pewaukee without paying the TUF. Pewaukee’s TUF “is a tax” because it “exact[s]” money to pay for “governmental functions” of “general benefit.” Pewaukee’s TUF is not a “voluntary” fee for a “proprietary” service that “bestow[s] upon [the payers] a benefit not shared by other members of society.”
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And a final note that may foreshadow more appellate court action to come:
Pewaukee notes that WMC served notices of claim on the Villages of Dousman and Pewaukee, challenging the validity of their “fire-protection fees.” Those notices of claim have nothing to do with this case. Pewaukee and Dousman are imposing annual, village-wide “fire-protection fees” as special charges on all real property. Special charges cannot be imposed that way to fund fire protection.
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