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, the government cannot punish people who choose to exercise that constitutional right. Yet that’s exactly what the Town of Dover, in Racine County, Wisconsin, did.
Vincent Milewski and Morganne MacDonald, husband and wife, own a home in Dover. In 2013, Dover officials decided to reassess local property values, hiring Gardiner Appraisal Service 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 home, 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 their subdivision, 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 come inside.
As if it weren’t bad enough the Town of Dover punished Vincent and Morganne for exercising their constitutional rights by raising their assessment, state law punished them further by denying them any opportunity to challenge their assessment. Furthermore, state law conditioned an appearance before the local board of review on allowing an interior search, and because court review of an assessment is conditioned on first challenging the assessment at the board of review, Vincent and Morganne had no legal recourse.
On behalf of Vincent and Morganne, the Wisconsin Institute for Law and Liberty (WILL) sued the Town of Dover and Gardiner raising Fourth Amendment (retaliation for exercising the right) and Fourteenth Amendment (lack of due process) claims. Both the trial court and the intermediate court of appeals ruled against them, concluding that they were merely exercising a choice between allowing the assessor in and challenging their assessment, and they were aware of the consequences of that choice.
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, 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.
The lead opinion wrote that it was unacceptable for government to force citizens to choose between constitutional rights – to exercise privacy rights at the loss of due process rights or vice versa. The opinion spent significant time discussing the origins of the Fourth Amendment, particularly how the founders were appalled that British agents could enter private homes without consent to search for taxable goods. The decision made the front page of Wisconsin’s largest newspaper and drew commentary from leaders across the state.
The case has been remanded to allow the plaintiffs to challenge their assessment.
Tom Kamenick serves as Deputy Counsel and Litigation Manager at the Wisconsin Institute for Law and Liberty (WILL).